Tens of thousands of women fleeing family violence are unable to get legal assistance each year, forcing them to represent themselves in court, incur huge debts to pay legal fees, agree to unfair parenting and child support arrangements, or stay in the abusive relationships.
Women fleeing domestic violence say their ex-partners can use the family law system to continue the abuse, sometimes for more than a decade, with partners deliberately running up their legal fees, delaying legal procedures, harassing them with excessive numbers of legal letters and causing them to be subject to bruising cross-examination in court.
Family lawyers have told Guardian Australia the system is broken and drastically underfunded and that women who cannot secure free legal assistance – many of whom have been subject to years of financial abuse – face bills of upwards of $200,000.
The revelations come as the government faces criticism for committing to modest increases to legal programs for women fleeing family violence in this week’s federal budget.
The government promised an additional $44.1m in 2024-25 for community legal services, for indexation and wages. Women’s Legal Services Australia called this a “step backwards” that would mean that many women’s legal services would “have to start planning to reduce services”. The National Legal Aid chair, Louise Glanville, said the $10.8m of additional funding coming to legal aid “falls well short” of the $484m needed, according to an independent report.
How the system works
Women leaving family violence situations often have to navigate the family law system to sort out parenting agreements, child support and property settlement.
Some women are eligible for free assistance through legal aid and community legal centres, which are financed by the federal government. But due to limited funding, the number of women who receive this help is a tiny fraction of those who need it.
The eligibility criteria to receive legal aid requires applicants to be in the lowest 8% of income earners in Australia, putting them well below the poverty line. Last year legal aid provided 40,000 legal aid grants in the family law space. Eighty per cent of family law cases involve family violence, according to federal circuit and family court of Australia data.
Those who are not eligible for legal aid can approach community legal centres for assistance but these services also have limited capacity to assist.
Last year an estimated 52,000 women were turned away from the 13 women’s community legal centres across the country, according to Women’s Legal Services Australia. These centres were able to assist roughly 25,000 women, meaning they had to turn away more than double the number of women they helped.
Katherine McKernan, the executive director of National Legal Aid, says women who cannot access free legal assistance often face dire choices.
“It’s a really tough decision for people. I think that they have an option to represent themselves or they may choose to go into significant financial debt in order to manage their matter. All of those things also can mean that you may choose to stay in a relationship that’s unsafe because of the unavailability of services.”
‘I couldn’t handle it any more’
Karla – who asked not to use her real name – did not qualify for free legal assistance, but could not afford legal representation. Her ex-partner had private legal representation, paid for by his family, and she says he used the courts as a way of continuing to abuse her, even after she left him.
“He just wants to keep fighting and fighting,” she says. “If you’ve got someone who’s got that kind of vengeful personality, or post-separation abuse going on, they will just do everything they can to continue the family court hearings because it gives them a chance to humiliate the other person in public. It really came very close to completely destroying my life.
“I self-represented for two years and I couldn’t handle it any more. So I gave him everything on his terms.”
Karla says that because they still have shared custody of their children, the post-separation abuse from her ex, through the legal system, is ongoing.
“He knows that if he wants to stress me out, he sends me a legal letter. I don’t even check my mailbox any more … because I’ve been so bombarded with letters from family court, family lawyers, child support. It’s all just tactics; it’s using the system to scare someone and break them down. I just kind of live with it and it’s really taken its toll.”
Vivian Galanis, the director of Wallumatta Legal, says it is “very common” for women who seek out private legal representation to face six-figure legal bills if their cases proceed to a final hearing.
“I would say that generally [it costs] somewhere between $100,000 and $200,000, and in many cases more than that, to get from that initial stage, of I’ve just separated, to that final hearing stage.”
Galanis’s firm is a not-for-profit low-fee family law firm that caters to the “missing middle” of people whose incomes are too high to receive free legal assistance but cannot afford to pay for private legal representation. Galanis estimates that 85% of Australians fall into this category.
Lara Freidin, the executive officer of Women’s Legal Services Australia, says a perpetrator of family violence may also use legal costs as a way of continuing the abuse, particularly if the perpetrator has more money than a victim-survivor, who might have been prevented from working, traumatised by abuse and subject to financial abuse.
“It’s well recognised that perpetrators of family violence will purposely drag out legal proceedings in the family court system to essentially bankrupt the victim-survivor and make it impossible for them to move on with their lives in a safe and supportive way,” Freidin says.
Anita – who also asked not to use her real name – told Guardian Australia that after leaving her partner she ended up compromising on a child support agreement that her lawyers warned her was unfair, because her husband “made it very clear to me that if I fought on that point, he would run me dry. I’d have no money left.”
Anita said her ex-partner subjected her to decades of emotional and financial abuse and regularly failed to pay her child support, despite her income being roughly a quarter of his. But she was unable to pursue him for the debt through the courts because of prohibitive legal fees, and fears this might cause him to escalate his emotionally abusive behaviour towards their children.
The situation for Indigenous women
The situation is even more acute for Indigenous women and children, who are 34 times more likely to be hospitalised and six times more likely to die from family violence than non-Indigenous women and children.
“Historically the law is used as a tool of oppression against our people, so our people, and especially our women, often find it difficult to see the law as a solution,” says Antoinette Braybrook, the chief executive of Djirra, an Aboriginal community-controlled organisation that provides legal and social support to Indigenous women in Victoria.
Braybrook says that in addition to prohibitive costs and replication of abuse, Indigenous women are often misidentified by police as the perpetrators of violence, not the ones needing protection.
“One of our clients was severely assaulted and when she was trying to escape the violence she clipped the perp’s motorbike, causing minor damage,” she says. “And when the police attended, they put an intervention order on her.”
Without access to legal representation, these women can end up with orders against them, having their children removed or even being jailed.
What needs to be done
Lawyers and advocates have pointed to some changes to the family law system that have made it more accessible and fairer for women trying to leave family violence.
Among these are changes to law introduced in 2019 that mean alleged perpetrators of abuse are not allowed to cross-examine their former partners during a hearing, and attempts to reduce timeframes of hearings, including a fast-track process for splitting assets that total less than $500,000. There have also been changes to the Family Law Act which now mean that the best interests of a child is prioritised in custody matters, reversing a change brought in nearly two decades ago under John Howard, that prioritised an equitable parenting arrangement for both parents.
All this is starting to make a difference, say lawyers, but legal advocates all say more could be done, including amending the Family Law Act to make family violence a consideration in property disputes, to acknowledge that victim-survivors of abuse often contribute less to the property pool and have had their future earning capacity curtailed because of family violence.
Djirra is calling for a mandatory notification system to be introduced so that if child protective services get involved in a case involving an Indigenous woman and family violence, an Aboriginal legal service is notified, so the woman can secure legal representation and reduce the chance of having her child removed.
All advocates say that above all what is needed is a huge injection of funding in the sector, and they are calling on the government to release the National Legal Aid Partnership Review, which contains an assessment of the state of legal access across the country and the funding gap.
“We need a massive injection of funding and longer term funding agreements. So we’re not scrambling at the end of each financial year to get a commitment from government,” Braybrook says.
Freidin agrees. “Obviously, we would like to see the same kind of investment in frontline service delivery as we see in national security or defence. But I think women being murdered in their own homes or after leaving a violent relationship isn’t being given the same level of recognition by governments as protecting our country from foreign threats.”
• In Australia, the national family violence counselling service is on 1800 737 732. In the UK, call the national domestic abuse helpline on 0808 2000 247, or visit Women’s Aid. In the US, the domestic violence hotline is 1-800-799-SAFE (7233). Other international helplines may be found via www.befrienders.org
