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The National Association of Community Legal Centres (NACLC) supports about 16 different specialist networks. These networks are organised around particular areas of concern or legal practice or groups in the community.
This month the Legal Centres column highlights particular projects or achievements of four national net works:
• National Rural, Regional and Re- mote Network
• National Welfare Rights Network
• Disability Rights Network
• Women's Legal Services Network.
The National Rural Regional and Re mote (RRR) community legal centre network has gained the support of the NACLC in progressing study into legal needs across Australia. An analysis that maps existing services and highlights areas of unmet need is long overdue. The RRR Network has previously acknowledged that the most disadvantaged people in Australia in gaining access to legal services are Aboriginal and Torres Strait Islander women living in rural and remote communities. The legal needs analysis will be essential to providing quality information that will allow for the development of services to address the unmet need.
Co-convenor of the National RRR Network, Chris Gabelish says: 'In the past few years, we have seen the Commonwealth government waste significant amounts of money in attempting to provide telecommunication and web-based services to those most in need in particular RRR areas. Clearly the Commonwealth's attempts, while well intentioned, have failed. The opportunity cost to providing real services has been lost and our RRR communities cannot allow continuation of waste to occur. The Australia Law Online project is an example of why poorly re searched projects of national significance will often fail to hit the mark. It is essential that the research be done and the most appropriate services be determined as a result of the re search.'
The RRR Network applauds the NACLC's decision and looks forward to progressing this immensely important project.
The National Welfare Rights Network (NWRN) is a network of services throughout Australia providing free and independent information, advice and representation to individuals about social security law and its administration through Centrelink.
The network's website, which has been in operation for about six months, is an important resource for lawyers and community workers who deal with social security matters. Included are over 30 factsheets on key and current social security payments and topics; and the Welfare Rights 'rates chart', with all the latest social security payment rates. There are also two self-help booklets for appealing to the Social Security Appeals Tribunal and the Ad ministrative Appeals Tribunal. The website also contains policy papers and contact details for each member of the network.
The website address is: <www.welfarerights.org.au>.
The report 'More than Getting Through the Gate' records the experiences of many parents with disabilities who have been prevented from participating in the education of their children due to barriers created by the education sys tem or the attitudes and lack of awareness of others. Eighty-three parents with disabilities, which included parents with physical disabilities, intellectual disabilities, blindness, deafness and mental illness contributed to there port.
Twenty recommendations for change, which will greatly assist the achievement of the inclusion of parents with disabilities in their child's education are detailed in the report. Copies of the report are available on the Council's website <www.discoun.nsw.gov.au> or can be ordered from the Disability Council of NSW. The Disability Council can be contacted on tel 02 9211
2866 or tollfree 1800 044 848 (both with TTY facility), fax 9211 2271 or email: info@discoun.nsw.gov.au
Decision of the Full Court of the Family Court -T and S
On 29 October 200 I the Brisbane-based Women's Legal Service (WLS) received judgment in an appeal which they had taken to the Full Court of the Family Court. The case involved a woman (Ms T) who had represented herself for most of a trial regarding the residence of her 2-year-old son. The trial judge had granted residence to the father -which effectively meant that the boy would reside with his paternal grandparents in a small rural Queensland town. The Full Court set aside the decision and ordered a re-trial as a matter of urgency. However, the father has now filed an application for Special Leave to Appeal to the High Court.
Ms T had been represented throughout most of the proceedings prior to the hearing. However, in January 2000 that representation came to an end. She then represented herself for five days of evidence in March 2000. She was represented by counsel a further day, which was largely limited to submissions.
The WLS provides considerable levels of legal assistance in a variety of forms to women who are representing themselves in family law proceedings. Ms T's case epitomised the issues many of WLS's clients face including feeling unable to fully cross-examine the perpetrator and/or being reluctant to reveal the nature and extent of the violence. The women often live in fear of the re percussions to themselves and their children if they reveal the level of violence they have endured. Ms T reported a history of domestic violence and sexual assault at the hands of her former partner, the child's father.
Much of the abuse had taken place in front of the child and was sexual in nature. She reported that the father would approach her and offer her more contact with the child in exchange for sexual favours.
It was difficult to mount a comprehensive bid for legal aid in the absence of the trial transcript which was estimated to cost about $6000. Legal Aid Queensland refused to fund the appeal on the basis of merit so WLS turned to the Commonwealth Public Interest and Test Cases Scheme in the Common wealth Attorney-General's office. It be came apparent that the best way to obtain a grant of aid for this client was for WLS to offer to take on the solicitor's role.
Primarily this was because WLS wished to argue the critical issues with respect to domestic violence and self representing litigants drawing on the expertise developed through client work and research. The Service had been considering ways in which to assist these women in the Family Court and it had become clear that some appellate court judicial guidelines specifically relating to self-representing litigants who were survivors of domes tic violence could be very useful.
WLS also mistakenly believed that the workload would not be too over whelming but in fact filed extensive 'new' material and discovered that the workload had been seriously underestimated!
In the end the grounds of appeal (in summary) were as follows:
• the woman did not receive a fair trial because the effect of the violence on her made her incapable of present ing evidence about the violence without professional assistance;
• the issues of the domestic violence were not explored fully at trial;
• the judge or the children's representative should have required/under taken a deeper exploration of the is sues of violence;
• the trial judge found that the woman had a personality disorder but during the trial there was no evaluation of the connection or possible connection of the woman's 'mental health problems' to the violence she had suffered;
• several procedural issues and evidentiary issues were not explained to the women and this resulted in procedural unfairness for her;
• the judge made several errors in assessing the evidence which was placed before him.
WLS also sought to introduce further evidence including detailed affidavits from Ms T and her family giving a comprehensive account of the violence which had occurred, as well as an ex pert domestic violence report from a psychologist who interviewed Ms T, and an affidavit from WLS's own social worker, Pam Godsell.
The appeal was heard in May before the Full Court of the Family Court and WLS enlisted the services of Mr Tim North, Senior Counsel who presented the arguments (and knew the relevant authorities on all the technical questions the judges asked)!
In their judgment the Full Court found that the new evidence was credible and, if accepted, would have produced a different result at the initial hearing. They also accepted that Ms T had not received a fair trial and had suffered considerable difficulty in representing herself.
While the submissions with respect to the duty of the child's representative and the trial judge to investigate the violence were not accepted by the Full Court, there have been positive outcomes with respect to some of the findings in the case. The Chief Justice delivered some 'additional reasons' in which he said:
... this case highlights a serious problem affecting the administration of justice in family law proceedings .. . as also occurs on occasion in the area of criminal law, women who have suffered serious domestic violence may be unable to present their cases unaided in family law proceedings. The present legal aid sys tem does not appear to be able to cope with these problems.
He commented that the case 'suggests the need for a re-think by government and legal aid authorities as to the sort of cases in which legal aid should be granted'. He also expressed the view that the denial of legal aid in cases such as this may constitute a breach of obligations created under international instruments such as the Convention on the Elimination of Discrimination Against Women and the Declaration on the Rights of Disabled Persons.
This decision is an important recognition of the special issues raised when domestic violence and self-representation intersect. However, it actually provides no new guidelines for trial judges and other judicial officers confronted by similar circumstances. To some extent the case turns on its own facts and the particular difficulties experienced by Ms T in her preparation and presentation.
The High Court refused the father's application for special leave to appeal.
TandS[200I]FamCA 1147andthe Full Court's judgment is available on the Family Court website at
<www.familycourt.gov.au/htmllnewjudge.html>
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URL: http://www.austlii.edu.au/au/journals/AltLawJl/2002/71.html