«Final Report - Executive Summary October 2013 National Pro Bono Resource Centre The Law Building, University of New South Wales UNSW Sydney NSW 2052 ...»
“For us it’s not about drawing the line at government responsibility as it is about assisting our clients in a holistic manner. Many of our [Family Violence Order] cases come through the Homeless Person’s Legal Service. For those clients family violence may have been a major contributor to their homelessness. We wouldn’t be doing our job if we chose not to assist clients to address the issues that contributed to their homelessness.” (Pro bono coordinator, mid-sized firm) Also, despite the fact that legal issues in family violence are not within the core expertise of large and mid-sized law firms, the size of the legislation relating to Family Violence Orders and Victims Compensation means that a lack in expertise is easier to overcome with training.
“It’s a discrete body of law. The Act is fairly short and straightforward, as is the court procedure. Our lawyers attended half a day of training and received a pack of materials they can refer to if they need to refresh their memory. Although the issues themselves may be contested, it’s a question of fact, not a complicated question of law.” (Pro bono coordinator, large firm) Further, the assistance provided by pro bono lawyers in matters relating to family violence is often in the form of a discrete task.
“The Act is contained in size and easy to get across. There’s no complicated case law. It is impossible to have complicated, multi-faceted legal issues in matters under the Act, and the legal assistance required by clients in these cases is straightforward drafting. Some of our clients may have complicated circumstances, but that’s a different issue. (Pro bono coordinator, large law firm) However, the interconnectedness of family law and family violence issues can make it difficult to obtain adequate pro bono legal assistance in a family violence matter, especially if the legal issues cannot be sufficiently isolated or separated.
“We used to send our lawyers to a women’s shelter to provide legal advice to women who had escaped abusive relationships. The idea was that we would advise them on how to seek protective orders and on some other legal issues. But for so many of the clients their family violence issue was so connected with family law issues that our lawyers were unable to provide proper advice. All the questions [the lawyers] would get would somehow relate to family law and they just didn’t have the knowledge. As a result we actually had to stop sending our lawyers down there and now only provide pro bono assistance to the shelter itself, not to its clients.” (Pro bono coordinator, large firm) The application of the Framework to family violence matters further illustrates why pro bono assistance from large and mid-sized firms has been difficult to obtain in family law and is likely to remain so.
Conclusion The research indicates that large and mid-sized firms are in most cases unlikely to provide pro bono legal services in family law matters.
Therefore, in responding to unmet need in family law, the focus needs to be on those practitioners who have the expertise and willingness to continue doing the work, whether in publicly-funded services or in private practice.
The issues of government funding, legal aid criteria for means and merits tests, the role of duty lawyers, legal aid early intervention schemes, community legal centres and other service providers provide the context for this research, but were matters beyond its scope.
In the pro bono context, not enough is known about the pro bono work of family law practitioners as this work is currently not visible and ‘embedded’ into the work they regularly undertake for clients. It is important to shed light on this work to recognise the significant pro bono contribution that these family law practitioners are making, and its resource implications (for example, if this contribution was no longer provided). A greater understanding of the extent and impact of the pro bono legal work undertaken by family law practitioners could also inform a discussion and debate about how to respond to unmet legal need in family law, particularly the ongoing development of legal aid policy.
Given the limited capacity of family law practitioners to undertake more pro bono work, shedding light on the work they currently do is also important so they can be supported in continuing to assist clients with no or limited means in the best way possible.
Further research could provide a better understanding of:
the factors that motivate family law practitioners to undertake this work;
the characteristics of the clients who are receiving this assistance;
the impact of this work on legal need and access to justice;
the relationship between this work and work done under a grant of legal aid; and the ways that family law practitioners can be better supported to continue to provide family law services to clients with no or limited means.
This research is important not only because it is an area of significant unmet legal need but
Family law is the legal system’s metaphor, the crucible with which so much else in law intersects… It is also, because it is the area of law by means of which most people will come into contact with it, the area by which the legal system will be judged by most people.1 Justice Rosie Abella of the Supreme Court of Canada, as quoted by The Honourable Diana Bryant, Chief Justice of the Family Court of Australia in her speech, ‘Walruses and the Changing Shape of Family Law in Australia’, November 2008, http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Media/Speeches/FCOA_NZ_Speech.