Research Brief – History of Legal Aid and Family Law
History of legal aid and family law
Key Findings
The history of family law is a reflection of the social circumstances of the time. Legal divorce proceedings were generally not available to the ordinary person until relatively recent times, so legal assistance for divorce was not common in the 19th century.
Legal assistance for matrimonial matters was only available in a limited capacity until the 1960s, when the Legal Aid Committee was established in Victoria.
The operation of family law in Australia has been heavily influenced by our Constitution, and distinctions between federal and state laws. Family law is a product of the combination of Commonwealth power in relation to marriage and divorce, with the states retaining powers in relation to child welfare, property matters and de facto relationships. This is reflected in current legal aid funding arrangements, where legal matters related to families (such as family violence and child protection) are funded by the state, while the Commonwealth funds matters in relation to family breakdown and parenting disputes.
The modern family law system and the modern family law legal aid system arise from the introduction of no-fault divorce, the establishment of the Family Court of Australia and the establishment of the Australian Legal Aid Office and subsequently state-based Legal Aid Commissions in the mid 1970s.
In the first year of the Legal Aid Commission of Victoria’s operation, there were roughly equal numbers of family law and criminal law grant of aid approvals. However, in times of economic restraint, legal aid agencies have restricted their services, with family and civil law matters being cut more severely than criminal law services. This is due to a number of historical factors, but may also be due to underlying assumptions about the relative importance of different sorts of legal problems.
Where criminal law legal aid has been prioritised over legal aid for family and civil matters, this has impacted on women’s access to legal aid as the overwhelming majority of crime is committed by men. This is despite women being more likely to be economically disadvantaged.
There have been further significant changes to Australia’s family law system throughout the 1990s and 2000s and family law legal aid services have had to change regularly to keep up with these developments as well as funding pressures.
History of legal aid and family law
Executive Summary
Marriage and divorce in Australia during the 19th century
Commonwealth involvement in Family Law 1959-1975
The modern family law system 1975-1990
1990s – Pressures on family law and legal aid cuts
Women and legal aid
2000 and beyond
Timeline
Executive Summary
The ‘Family law’ system as we know it today had its origins with the development of divorce laws in Britain and in colonial Australia. Unlike in criminal matters, for most of the18thand 19thcenturies, there was no concept of legal assistance for the poor in family law matters, as there was no such thing as ‘family law’ (as we know it today). There were laws relating to the dissolution of marriage, but they were only designed for rich, titled men – it wasn’t until in the latter half of the 19th century that the social consequences of bad marriages (for instance abandoned or abused wives, neglected children) were seen as a state responsibility, so it was in the interests of the state to provide some means of relief from a bad marriage. While early Australian laws were modelled on British divorce laws, the social circumstances in Australia meant that the impetus for reform and development of the law was more urgent, and in the late 19th century we saw some progress on more grounds for divorce being available that took into account the particular needs of women. We also saw the very important move from an individual having to petition Parliament for an act to dissolve their marriage to being able to apply to the courts for dissolution.
The separation of powers between the states and the Commonwealth has also had a major influence on how laws relating to marriage breakdown have developed. So while each state and colony in Australia had its own marriage/divorce laws, with Federation the Commonwealth took over the powers in relation to law making regarding marriage. Despite having these powers, the Commonwealth’s use of them was limited until 1959.While it created a new Commonwealth Marriage Act, the states retained legislative powers in relation to child welfare, de-facto relationships, children born outside of marriage and disputes about property. In the meantime, legal aid became available for family law matters through the Public Solicitor’s Office, which though able to undertake these family related matters, was predominantly focused on criminal law. Later the Legal Aid Committee of Victoria was established and subsequently took over the bulk of civil matters, including matrimonial matters, from the Public Solicitor’s Office. Poor people could apply for assistance through these schemes, which were run by the private profession.
The Commonwealth did not take responsibility for legal aid for family law until the establishment of the Australian Legal Aid Office (ALAO) in 1973. A large part of the work of the ALAO was in family law matters. In 1975, the introduction of no fault divorce and the Family Law Act, saw a significant increase in the number of divorces. During this period, a federal specialist family court was established and we saw family law matters moving from the state courts to the Family Court of Australia. It was envisaged that legal aid would be available to people who needed access to the Family Court but did not have the means to do so and that aid would be provided by solicitors employed by the ALAO.
However, in 1975, with the change of government, the ALAO was disbanded and a decision was made to decentralise legal aid and establish separate legal aid commissions in each state and territory. Some of the ALAO staff and caseload were absorbed into the Legal Aid Commission of Victoria. At the establishment of the commission there was an even split between family and criminal law approvals for grants of aid. However through the 1970s and 1980s, the mix of work would see the number of criminal law grants approved overtake family law grants of aid.
In the 1990s, the Legal Aid Commission was under financial pressure and implemented further restrictions on grants of aid, particularly in family and civil law. At this time, there was recognition that women as a group faced barriers when accessing justice. Legal Aid Commissions tended to prioritise criminal over family and civil matters, resulting in men becoming the overwhelming beneficiaries of legal aid. In 1995, the Federal Government stated that it was going to address these concerns through a National Women’s Justice Strategy, but there was a change in government in 1996 before this could be implemented. The strategy was abandoned and the new Government subsequently changed the Commonwealth/State funding arrangement, restricting Commonwealth funding to Commonwealth matters only and introducing a ceiling on funding for family law matters. This effectively reduced Commonwealth funding for legal aid, and family and civil law services faced the biggest cuts during this period.
This arrangement caused Victoria Legal Aid to accrue a surplus in unspent Commonwealth money, while at the same time, reporting a state deficit. The added frustration of the funding agreement was that VLA wasn’t able to spend Commonwealth money on increasing demand for legal assistance in the areas of family violence and child protection. This has eased somewhat with the National Partnership Agreement, but the Commonwealth/State funding restriction is still in place today.
Throughout this time, VLA has had to keep pace with the multiple changes in a dynamic jurisdiction, which has seen significant reform since its inception. VLA provided support to a new court, the Federal Magistrates’ Court (now Federal Circuit Court), provided funding for primary dispute resolution, set up a Family Violence sub-program and a Child Support Unit (Family Law Financial Support) and has set up its own dispute resolution program through Roundtable Dispute Management. In the last three to four years in particular, VLA has made major changes to guidelines in order to manage family law expenditure, including controversial funding decisions related to Independent Children’s Lawyers and the funding of family law trials. Restrictions to family law services invariably affect the lives of vulnerable people, and particularly two of VLA’s priority groups – women experiencing (or at risk of experiencing) violence and children. VLA has to manage a limited legal aid fund, in an environment where demand is increasing across all programs.
Marriage and divorce in Australia during the 19th century
Pre-federation, the laws governing divorce were mainly derived from British law. Colonies did not have the power to grant divorces, Australian colonists who wanted a divorce would have to apply directly to Britain.[1] As it was in Britain, prior to the 1857 Divorce and Matrimonial Causes Act, getting a divorce was out of the reach of anyone apart from the very wealthy and required a petition directly to parliament. While women could apply for a divorce, the grounds on which they could do so were inequitable. For instance, a man would only have to prove one single incident of adultery, a woman would have to prove aggravated and repeated adultery. Historically, divorce was more about the protection of property, and the inheritance of property, which is why the very wealthy and men were the only ones able or motivated enough to enact their rights to a divorce. The double standard for men and women was justified on the grounds that adultery was much more serious when committed by women as it could throw doubt on lines of inheritance. There was no question of access to divorce by the poor, as the divorce laws as they were, excluded most of society. In fact, allowing divorce to occur was controversial throughout the 19th century as marriage, even bad marriages were seen as preferable to encouraging divorce amongst the lower classes.
After the 1857 BritishAct, each state or colony in Australia developed its own divorce laws, however uniformity with the mother country was paramount, and any law that differed from the Britishlegislation required royal assent directly from England, rather than from the Governor as the Queen’s representative.[2] In 1861, Victoria introduced its first divorce legislation, based on the BritishAct. By 1873, all states had some divorce legislation in place. The Victorian legislation reflected the double standard in relation to the grounds for divorce, where a man could divorce his wife for one single act of adultery, while a woman would have to prove repeated adultery, or adultery coupled with incest or cruelty.[3]
Australia in the 19th century was a very different place to England, with a more transient population, where numbers of men heavily outweighed the numbers of women. This may partly explain why divorce law developed more quickly and progressively in Australia then in England. For instance, desertion was a real problem for Australian women, it occurred at a much higher level than in England, with men deserting them for casual work or for the goldfields. This desertion could have more serious consequences for women as they lacked the traditional family or community supports they may have had in England. If they were unable to re-marry (and in the early days of the colony, there were plenty of men around to become second husbands), they became a burden on the colony. The way Australia was settled also led to a more transient population. Married couples lost contact with each other, for example, if one was transported here and the other left behind in England, and the number of de facto relationships was higher as it was easier to form new relationships outside of marriage.
’In Australia…the expedient of parliamentary divorce, as a way of escaping from a marriage, had never existed. A ‘popular’ way out was bigamy based on the presumption of death’.[4]
Due to these cultural differences, the colonies advocated for more grounds to be available in order to get a divorce. In Victoria, a new Divorce Act in 1889 included desertion, habitual drunkenness, leaving the mother without support and cruelty as some of the additional grounds available for divorce.[5]While there was still no concept of legal assistance for the poor when it came to access to divorce, what this legislative development shows is a shift away from divorce law as a privilege exercised only by the rich, to the law being used to protect the welfare of women, or to escape an unhappy or unreasonable marriage by either party (for instance men could divorce women for neglecting their domestic duties).[6]
With federation in 1901, the Constitution gave the Commonwealth powers relating to marriage and divorce. Other aspects of family law, such as property, adoption, child welfare, de facto relationships and inheritance remained with the state.[7] The Commonwealth would not enact these powers until 1959, until then each state and territory had its own marriage and divorce laws and family divorce applications were heard in state courts. In terms of legal assistance for divorce applications, theVictorian Public Solicitor’s office was established in the late 1920s, and while it did include provision for legal assistance formatrimonial matters,[8] it was quite under-resourced so, in practice, it mainly focused on criminal matters.
Commonwealth involvement in Family Law 1959–1975
In 1959, the Commonwealth enacted the Matrimonial Causes Act thereby creating a uniform matrimonial/divorce and child custody law in Australia. There was no federal court created so family law matters were still heard through the state Supreme Courts, who had been vested with federal jurisdictional power in relation to family matters.[9]Commonwealth ‘family law’ powers specifically dealt with marriage and divorce, the state retained separatepowers in relation to family violence, child welfare, and de facto matters (including jurisdiction over children born outside of legal marriage).
In 1964, applications for legal assistance for family law matters went through the Legal Aid Committee[10], while the Public Solicitor’s Office focused on criminal law applications. The committee, made up of members of the Law Institute of Victoria and the Victorian Bar, assessed applications for aid and assigned work to private solicitors. Thecommittee dealt with a lot of family law matters, in fact before the Australian Legal Aid Office (ALAO) was established in 1973, the largest single category of cases were matrimonial cases (divorce, maintenance and custody of children).[11]This meant that the private profession was heavily involved in the delivery of family law services. The Public Solicitor’s Office, with salaried government lawyers, delivered criminal services and effectively outsourced civil matters (mainly family law matters) to the private solicitor run Legal Aid Committee. This established the history of legal assistance in the criminal area being delivered by the government through salaried lawyers, while legal assistance in the ‘private’ civil and family sector was provided by a scheme controlled by the private profession.
The Australian Legal Aid Office (ALAO) was established in 1973, and took over the provision of legal assistance for family law matters from the committee, though the committee still retained some of these matters. In 1973–4, the committee reported assigning 2,809 grants towards family matters. By 1975, two years after ALAO was established, this number had more than halved to 1,315.[12]When the establishment of ALAO was announced, Lionel Murphy (Attorney-General 1972–75) specifically mentioned the need to provide legal aid for divorce matters.[13]
The modern family law system 1975–1990
In 1975, the Family Law Act was introduced. This Act revolutionised the family law system, due to the complete removal of all grounds for divorce, apart from irretrievable breakdown. This concept of no-fault divorce was meant to make divorce more accessible and simplify court proceedings by removing the grounds of divorce as a contestable matter.[14]Following the introduction of the Act, there was a large jump in the number of divorces, from 28,308 divorces in 1975, to 66,092 in 1976.[15] We also saw the establishment of a central, federal family court, which became a specialist court for family law matters. With the set up of the Family Court of Australia, the Commonwealth still gave the states the power to create their own family court – Western Australia was the only state to take this up, which is why it has ‘separate’ family law legislation (which is still consistent with the Commonwealth).[16]