Funding legal representatives

Introduction

13.133 Most children cannot afford to fund litigation themselves. Legal aid is important in ensuring that children have appropriate access to courts and tribunals in matters that affect them or in which they are a party. Presently children are assisted by lawyers based in community legal centres, by specialist in-house lawyers in legal aid commissions or by private practitioners legally aided to represent children.^[255] The increased number of appointments of representatives for children over the last several years has placed a significant financial burden on legal aid commissions.

13.134 This burden has arisen at a time of funding restrictions and the renegotiation of funding arrangements between the States and Territories and the Commonwealth.^[256] The Commonwealth has recently finalised agreements with most of the States and Territories in which policy for the expenditure of federal funds will be determined by the Commonwealth. Legal aid commissions are required to provide a budget to the Commonwealth setting out proposed expenditure patterns.^[257]

Quarantining funds for representation of children in all jurisdictions

13.135 The Family Court considered the limits of its power to appoint a child’s representative in Heard v DeLaine. The court held that, although the power to appoint a representative

gives the court wide powers in relation to the representation of children in proceedings before it, in our opinion, no power exists in this court to order the Legal Services Commission to continue to fund the separate representation of children, however desirable that may be.^[258]

13.136 The Inquiry recognises that there are resource constraints on legal aid commissions. Nonetheless we consider that children must continue to be provided with adequate representation, particularly in family law, care and protection and juvenile justice matters.

13.137 Resource constraints cannot justify ad hoc refusals of aid. In a recent unreported case two siblings were refused legal aid to bring action directly in the Family Court. Mushin J stated

I can do no more than express my sheer amazement that Victoria Legal Aid has declined to aid these children. I was told that the reason for aid being declined was that Victoria Legal Aid was concerned that the floodgates would be opened with respect to applications by children…The merits of the matter appear to be that unless represented the children would have had to appear for themselves and personally criticise both their parents in Court. That is a totally unacceptable position in which to place them.^[259]

13.138 The Legal Aid and Family Services Branch of the federal Attorney-General’s Department noted that under the new agreements between the Commonwealth and the State and Territory legal aid commissions Commonwealth matters are quarantined from State and Territory issues and that as a result there should no longer be competition for funds between State and Territory and Commonwealth matters.^[260] Funding constraints faced by legal aid commissions may nevertheless lead to competing priorities between different legal aid assistance needs within the Commonwealth and State allocations of funds. There is merit in quarantining funds for representatives for children across all jurisdictions, including family law, care and protection and juvenile justice matters, to ensure that children are adequately represented in each of those jurisdictions. Certainly the close connection between family law and care and protection cases justifies separate allocations of funds. Quarantining funds was recommended by the NSW Legislative Council Standing Committee on Social Issues.^[261] The Family Court noted

…there is a strong case for a designated fund for separate representation being made available to Commissions, in that children should not have to compete with other litigants for representation.^[262]

13.139 The submission from the Legal Aid and Family Services Branch of the federal Attorney-General’s Department also pointed out that the Commonwealth has given priority to funding for family law and child representation.^[263] This positive decision should be reflected by each State and territory legal aid commission.

Funding caps for representatives in family law

13.140 One response to competing priorities is the introduction of funding caps. There is certainly a case to be made for the imposition of clear funding caps in many cases. Funding caps should not be applied comprehensively in all cases. However in public interest or test cases the finalisation of a matter by a representative may assist the determination of future matters.

13.141 A grant of aid extends to all appearances during the life of a matter including repeat applications This may be particularly problematic in family law children’s cases where parenting orders require continuing arrangements that may at times break down. It is generally not possible to predict or plan for repeat applications. For this reason, the effects of funding caps should be carefully monitored in children’s matters.

13.142 Retrospective caps are particularly problematic as they undermine costs estimates by representatives when legal aid was granted and make the matter less likely to reach a satisfactory conclusion. In some recent cases representatives for children have withdrawn during the hearing stages or continued in the matter on a pro bono basis after initial grants of aid suggested funding would cover the hearing. In Heard v De Laine a representative was forced to withdraw from a matter some way into a lengthy hearing.^[264]

13.143 National Legal Aid submitted that ‘[w]hen proper levels of funding are provided by Government,…funding for children’s legal representation should not be terminated in cases where costs have reached a capped funding limit’. It went on to say, however, that ‘[s]ufficient funding for all children’s matters is unlikely to occur in the near future’.^[265] The Inquiry cautions against the introduction of any further retrospective funding caps.

13.144 Recommendation 81 should reduce the time in which children’s representatives should be required to appear in family law matters. They may be excused after the completion of the hearing relating to children and need not appear on the hearing of property matters to which they would generally contribute little.

Contributions by parties to family law proceedings

13.145 Contributions by parents to the cost of representation of children may be appropriate in some family law cases. The Family Law Council has commented that ‘[i]n general, the conduct of the parties is the reason why separate representatives are required …’^[266] However, there is concern about parental contributions, mainly relating to the possible or perceived prejudice to the independence of the representative arising from the influence of the party responsible for the costs. A number of different mechanisms by which costs may be recovered influence this concern.

13.146 One mechanism is that adopted in the agreements on family law funding signed between the Commonwealth and all States and Territories except NSW, Victoria and the ACT. Under these agreements parties to family law proceedings who are not legally aided must generally ‘…pay the amount or relevant portion of the anticipated costs of separate representation …’^[267] Victorian guidelines already include such a provision. This arrangement does not address, and may in fact exacerbate, the potential for problems such as that discussed above.

13.147 Under a scheme in New Zealand the court may order any party in a family law case to reimburse the Crown for fees and expenses paid for the representation of the child.^[268] The Family Law Council recommended such a scheme in Australia.^[269] It was also recommended in the ALRC report Costs shifting — Who Pays for Litigation.^[270] In New Zealand the parties are advised at the time of the appointment of the representative for the child that they may be called upon to reimburse some of the cost of the representation for the child but the order is made by the court at the conclusion of the matter. A New Zealand practitioner has commented that this does not in practice prejudice the independence of the representative nor create an inference on the part of the party or parties funding the representation that the representative should somehow act for them.^[271]

13.148 DRP 3 suggested that parties may be liable for costs of the child’s representation in family law proceedings but only on the basis of a court order at the conclusion of the matter. Parties should be advised at the outset that they could be liable for costs. National Legal Aid supported this proposal in its submission.^[272] However, it opposed the proposal that this option be available only to the court of its own motion. It argued that it should be open to any party to make an application for such a costs award. While the Inquiry still considers these applications should not be made by any party, we agree that the representative for the child should be able to seek such an order. In any event, the Family Court should remain alert to the funding restrictions on the legal aid commissions and ensure costs orders are made as appropriate. The Family Court of Australia has pointed out that the Family Court is not restricted to making costs orders only against parties.^[273]

13.149 A submission to DRP 3 was provided by a practitioner in a matter in which two children had initiated proceedings directly in the Family Court. Their parents had become ‘litigation weary’. Legal aid was denied the two applicants on the basis that ‘…the floodgates would be opened with respect to applications by children’.^[274] The submission noted

…there are very rare circumstances, nonetheless important, where children of their own volition ought initiate proceedings therefore [I] consider there ought be some increased concentration on the right of the child to initiate proceedings.^[275]

The Family Court also pointed out that legal aid guidelines should be drafted so as to take account of the possibility that children will initiate proceedings directly.^[276] In these cases, the child should be legally aided on the basis of the usual individual means and merits tests. The means test should be applied to the child’s resources, not those of his or her parent/s.

13.150 Any such contribution scheme would be inappropriate in the care and protection jurisdictions. Parents generally are not responsible for the initiation of proceedings and the involvement of the state as an initiating party makes the application of any such scheme inappropriate.