The Go Fund Me campaign of Israel Folau has sparked an unprecedented response in the online world with a plethora of supporters and detractors. Go Fund Me elected to shut down his page on the basis that his campaign violated their terms of service (as reported by Paige Cockburn ABC online news 24 June 2019).
It goes without saying that Court should always be a place of last resort but what happens to those who absolutely have no other options and no money with which to fund their lawyers.
For me it raised the issue of how ordinary Australian citizens – middle Australia are being squeezed out of their option to have legal representation when they are at their most vulnerable – when they are one half of a separating family. Personal judgment, patience, wisdom and insight is often lacking amongst litigants in family law as is available money to secure their legal representative of choice.
When separating, significant decisions need to be made and many people are making those decisions in the blind. They are not accessing the help they need when they most need it. To obtain legal aid is nigh on impossible in most States and Territories in Australia. Some legal aid agencies will not fund property or maintenance cases even when an applicant is not receiving any income and is completely financially dependent on the welfare system; the theory being that they will eventually obtain assets.
This leaves family law clients with few options to raise the finance they need to ensure they get the right advice. They can go into debt and compound an existing debt problem. They can access drawdown facilities but this may spark a reprisal action by their ex to seek to reverse this withdrawal of funds, they can borrow from family or friends, they can agree with their ex to each access funds or liquidate an asset to each fund their legal advice (provided they have a co-operative former partner), or they can apply to litigation funders (sometimes difficult to access with varying interest rates).
Alternatively, if they cannot get their ex to co-operate, they can commence litigation funding proceedings in Court and if they can point to an asset which could be accessed or liquidated and if the Court is willing to allow that access or liquidation, they may still have to fund the initial costs of going to Court.
At Caroline Counsel Family Lawyers, we hear tragic histories from our clients, often punctuated with family violence and financial abuse and yet their tragedies would barely warrant a blip on the Go Fund Me site as they are not former sports stars, they are not adherents to a given religion, they are not famous or infamous on social media. They are just ordinary citizens trying to exercise a normal right to obtain legal advice and representation.
We also know how expensive Court is as an option but as I’ve said, sometimes it simply cannot be avoided and a delay to get there may result in justice being denied. Think of someone transferring assets overseas or a parent refusing to hand back a child, someone who threatens their ex with violence and coercion to get their way, a parent who is unable to afford groceries for their children and an ex who has controlled the purse strings.
We know that self-represented litigants have a tough time of it in Court as they do not know the law or how to navigate the legal system. Their cases tend to take much longer and be more complex due to the lack of legal representation. Having lawyers can reduce the number of Court events and most cases resolve with the assistance of lawyers (only 3% to 5% of matters initiated in a given year require final determination by a judge with many clients benefitting from the impartial advice their lawyers provide them along the way to assist them settle).
If you know of anyone who needs legal assistance but is feeling the financial squeeze, please encourage them to get the right advice from lawyers who can help provide clarity and options including financing options.
Principal Caroline Counsel Family Lawyers
LIV Accredited Family Law Specialist, Nationally Accredited Mediator, Arbitrator, Family Dispute Resolution Practitioner and Collaborative Professional