One of the recurring themes from the Australian Law Reform Commission’s (ALRC) portal “Tell Us Your Story” and the review into the Family Law system was the expense of the family law system. Many people struggled with what they said was the unaffordability of legal services. On this topic, the overwhelming information shared with the Commission was the need to enforce orders once made (and costs associated), the delays in obtaining an outcome and its corollary –the high cost of going to Court.
Court should be a place of last resort. Yet the families that end up litigating are often the most damaged or have the most complex of human and legal issues. These families have seemingly insoluble problems: violence (mental, financial, physical, emotional), sexual abuse allegations involving their children, threats of bankruptcy, gambling, addiction, wastage of their assets, or one or both parties suffer from being either high conflict or having a personality disorder. These complexities usually exacerbate the length and therefore the cost of running matters in Court.
The summary of the ALRC review stated:
“The family law system is expensive: People told us that the cost of resolving their family law disputes through the courts and associated services was high. Some people told us about the significant impact this cost had on their financial security and that of their children. Others told us that the cost made the system inaccessible to them, particularly when they were ineligible for legal aid.”
Given the increasing automation of aspects of transactional work (such as conveyancing) it is most likely that the one time in their lives that Australians will need a lawyer will be in association with separation or divorce. Australians expect that in return for their taxes, our government will ensure we have access to health services, education, housing and the one thing they hope they will never need – access to the courts and affordable legal advice. They deserve to receive the right advice at a time of greatest need. Yet, middle Australia – those who are not eligible for legal aid, struggle to pay for that advice.
The Court is aware of and has done significant work in relation to self-represented litigants as the Court personnel knows that these litigants can greatly complicate the matter, cause delays and increase the costs of the represented party.
When I meet family law clients I know that the vast majority of them will not be able to afford to pay our services from income. I can see the need for them to receive advice or representation. I can appreciate how sound advice about their options may even save them costs in the long run. But money for legal fees, when a family is separating, is money that they simply do not have. If they are trying to meet the cost of running two households, it is logical they have less money than they did pre-separation.
Based on my experience therefore about 80% of clients cannot afford to fund their legal fees from post separation income. Their options are to go into debt, to agree to both access lines of credit or redraw facilities, borrow money from family or friends or issue Court proceedings either throughout their matter or to obtain a Court order for litigation funding. Litigation funding may be granted if there is an accessible asset to which the party in need can make out a claim against and convert that asset into legal fees.
From ALRC portal “Tell Us Your Story” when commenting on the cost of going to Court:
“Costs: Fees are excessive. Financing protracted proceedings in the family courts is leaving people destitute, limiting their ability to provide for their children.”
Clients sometimes have no choice but to go to Court, particularly if their ex is combative or represented by combative lawyers. What the ALRC are keen to see instituted is a genuine attempt to resolve financial matters (currently limited to parenting matters) before a couple can commence legal proceedings. This threshold opportunity should not be paid lip service (as sometimes presently is the case with parenting disputes and a cursory attempt to resolve issues at a Family Relationship Centre).
A separating couple can design their own divorce. They get to decide what sort of divorce they want their children to remember: one punctuated with violence, recriminations, anger and squandered money. They should not leave it to complete strangers – lawyers, Family Consultants or judges to determine their family’s fate. They should embrace the options in alternate dispute resolution and deliberately decide what memories they want to create for their children – one in which they are enslaved on the Family Court merry-go-round or one in which the family’s needs are put ahead of the need for vindication. But as the song says “it takes two, baby”
Caroline Counsel
Principal Caroline Counsel Family Lawyers: Better Families Brighter Futures
Accredited Family Law Specialist, Mediator, Family Dispute Resolution Practitioner
