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Law Council: Budget a missed opportunity to invest in justice

Australia’s peak law group has welcomed funding earmarked for the family law system in Tuesday’s federal budget, however, expressed that it also missed the opportunity to invest in justice for all.

Law Council of Australia (LCA) President Tass Liveris welcomed funding to support the people interacting with the family law system, women experiencing family violence and those affected by the floods.

“The Law Council is particularly pleased to see additional funding for the Lighthouse Project … and the Family Violence and Cross Examination of Parties Scheme and additional funding for the court and Legal Aid Commissions,” Mr Liveris said.

“However, this funding does not effectively acknowledge that some of these initiatives – particularly the case management pathway – have increased costs for Australian families and that the family law sector has been significantly underfunded for many years.

“We will have to wait to see the impact this funding has on reducing the backlog of matters, in meeting the growing demand for services and ensuring Australian families can afford assistance when they need it.”

Federal Circuit and Family Court of Australia (FCFCOA) Chief Justice Will Alstergren welcomed the funding for the expansion of the Lighthouse Project – a world-first risk screening, triage and assessment process.

He said data from the project to date had revealed about 64% of litigants are initially screening as high risk, and 50% of high risk matters screened have four or more major risk factors including family violence, child abuse, drug or alcohol abuse, or mental ill health. 

“This funding is very good news for the Australian public,” Chief Justice Alstergren said.

“The courts have been piloting the Lighthouse Project in Adelaide, Brisbane and Parramatta registries, where it has not only shed light on the high prevalence of risk in family law cases, but assisted the courts to manage those risks appropriately.

“The funding ensures the courts can extend the project nationally to all 15 family law registries, providing for risks to be identified and managed in all registries nationally, including a number of regional locations, to ensure safer outcomes for vulnerable parties and children involved in family law disputes.

“Funding provides for the roll-out of the Lighthouse Project to Adelaide, Brisbane, Cairns, Canberra, Dandenong, Darwin, Hobart, Launceston, Melbourne, Newcastle, Parramatta, Rockhampton, Sydney, Townsville and Wollongong, in both parenting and parenting/property cases. 

“(Brisbane-based) Senior Judicial Registrar Lisa O’Neill is to be commended for her role in the creation and development of the Lighthouse Project. Together with the Lighthouse Project team, they have demonstrated extraordinary commitment to improving the court’s responses to issues of family violence and better outcomes for families involved in family law matters in the court.   

“Importantly, this funding will also ensure the courts can provide greater access to justice for family law litigants who identify as Aboriginal or Torres Strait Islander. Funding for the 11 additional Indigenous Family Liaison Officers is crucial to assist with specialist Indigenous lists and other parts of the courts’ case management pathway, as Indigenous Family Liaison Officers undertake a vital role in building relationships between the courts, local communities and support services.

“Securing these important resources has been a key priority of the courts. The additional funding appropriately recognises the work that our courts do and the critical need for further registrar, Child Court Expert, Indigenous Family Liaison Officer, and support staff resources for the courts to respond to the needs of the most vulnerable parties and children,” Chief Justice Alstergren added.   

The Lighthouse Project provides intensive case management and safety planning delivered by a team of skilled Senior Judicial Registrars, Judicial Registrars and Court Child Experts. Litigants who screen as high risk are interviewed as part of the risk assessment, referred to targeted support services to enable better public health outcomes, and cases identified as high risk are referred to the court’s specialist Evatt List.

The FCFCOA, Division 2, currently runs a specialist Indigenous List, or modified case management processes tailored to Aboriginal and Torres Strait Islander litigants, in five locations: Adelaide, Alice Springs, Darwin, Melbourne and Sydney. Indigenous Family Liaison Officers assist the smooth running of specialist Indigenous lists, and co-ordinate the attendance of Indigenous legal, health and other support services.

Federal budget 2022 funding announcements for the legal sector included:

  • $87.9 million over four years to expand the FCFCOA’s Lighthouse Project pilot and culturally responsive support for First Nations Australians. This included $63.75 million in funding to the court and $24.2 million over three years for Legal Aid Commissions to raise their capacity to meet increased demand for representation services resulting from the extension and expansion of the Lighthouse Project pilot
  • $52.4 million over four years to Legal Aid Commissions to meet expected demand for support under the Family Violence and Cross Examination of Parties Scheme
  • $22 million over five years from 2021-22 to support the placement of state child protection and policing officials in the family law courts across Australia to facilitate information sharing between the family law, child protection and family violence systems
  • $16.5 million over two years from 2021-22 to support Legal Aid Commissions to meet the cost of legal representation, including independent children lawyers as ordered by the FCFCOA as part of the Government’s enhanced case management arrangements for family law proceedings
  • $8.4 million over three years for a pilot of a new service delivery model to provide survivors of sexual assault with greater access to dedicated legal services to support their recovery and engagement with the criminal justice system
  • $7 million over two years for nine Women’s and Community Legal Services nationally, to help women access legal assistance and migration support
  • $5.4 million over two years from 2021-22 to existing legal assistance services operating within Queensland and NSW to support individuals and businesses affected by the recent floods.

The LCA also welcomed further investment of $1.3 billion to deliver targeted measures towards implementation of the new National Plan to Reduce Violence Against Women and Children.

“These are important initiatives that will help women and children impacted by family violence to navigate the family law system,” Mr Liveris said.

“However, more resources to ensure all Australians have equal access to justice are needed.

“The focus of this year’s budget has been on addressing increasing cost-of-living pressures. These pressures have the biggest impact on the most vulnerable in our society.

“In the Justice Project, the Law Council identified that people experiencing disadvantage, including financial disadvantage, are often more vulnerable to experiencing legal problems, including family law issues and family violence. There can be a particular impact on civil law issues related to care needs, housing and rising debts.

“We know that legal issues can arise or worsen when times get tougher and services need to be there and able to help when people need them most. The consequences of being unable to access legal help can be profound, with implications for their financial security, health, housing and safety. A stated focus of this budget is on guaranteeing essential services. It is time to recognise that legal services are an essential service.”

While the Law Council welcomed the announcements in the federal budget, Mr Liveris said frontline legal services within the legal assistance sector remain critically underfunded and subject to strict resourcing limitations.

“Investment in frontline legal services not only improves outcomes for individuals – it has demonstrated benefits in terms of downstream costs savings for the Government,” Mr Liveris said.

“The looming federal election is another important opportunity for those seeking to be our elected representatives to commit to the investment needed to ensure that all arms of our justice system can effectively help the people of Australia,” Mr Liveris said.

Other budget measures noted by the Law Council included:

  • $9.3 million over four years to support legal assistance services involved in coronial inquiries and expensive and complex cases
  • $1.4 million over two years from 2022-23 to the Attorney-General’s department to progress a national approach to modernise the execution of common legal documents
  • $5.6 million over four years to the Fair Work Commission for a small business support unit to improve employer/employee experiences when navigating the Fair Work system
  • $17.0 million over two years from 2022-23 to support the Office of the Australian Information Commissioner in undertaking its privacy and regulatory functions
  • $15.7 million over four years from 2022-23 (and $4.0 million per year ongoing) to increase the Commonwealth Director of Public Prosecution’s capacity to respond to its increasing caseload
  • $2.5 million over two years from 2022-23 to support the Financial Rights Legal Centre’s national insurance law service to continue to provide legal advice and advocacy for consumers in financial distress due to insurance claim disputes
  • $2.0 million over two years from 2022-23 for the Aboriginal Legal Service of Western Australia to expand its youth engagement program as part of the Kimberley Juvenile Justice Project in the Kimberley and Pilbara region
  • $1.6 million in 2022-23 to continue a pilot for a single case management solution for the Administrative Appeals Tribunal (AAT), with the cost to be met from within the existing resources of the AAT
  • $6.7 million in 2022-23 to support the work of the Office of the Special Investigator’s investigation and prosecution of potential war crimes in Afghanistan
  • $1.8 million over three years for advice and support services for women who experience sexual harassment
  • $1.2 million over four years to develop and implement a training and education program for volunteers who assist court users within the FCFCOA.
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