Rachael Brown reported this story on Monday, March 17, 2014 12:50:00

ELEANOR HALL: The Chief Justice of the Family Court of Australia says cuts to legal aid have compromised her court.



Justice Diana Bryant says more and more people are now representing themselves but she said she is not holding her breath waiting for more funding, as Rachael Brown reports.



RACHAEL BROWN: The Family Court is often a hotbed of tension and fraying relationships.



And the Chief Justice, Diana Bryant, says this friction is being exacerbated by the growing number of litigants representing themselves.



DIANA BRYANT: That arises because of cuts and processes that legal aid brought in, around about 12 or 18 months ago, and I and other spoke out about it at the time.



RACHAEL BROWN: It's rare for judges to speak publicly, especially chief justices, but Chief Justice Bryant told ABC Local Radio the system is untenable.



Regularly the Family Court is home to uncomfortable situations where a woman accusing her ex-partner of rape can be forced to withstand cross-examination from that very person.



The Chief Justice says it's not ideal but it's been happening for a long time.



DIANA BRYANT: But the major change came when Legal Aid Victoria said that if one party was unrepresented, they were not going to fund the representation of the other party.



You have a party who's not only going to be cross-examined by their former partner about, perhaps, violence of which they're the victim, but they have to run their case and they have to cross-examine their partner. And for many people that's impossible and it leads to settlements.



RACHAEL BROWN: Chief Justice Bryant says it also leads to adjournments, major backlogs, and a loss of faith in the system.



DIANA BRYANT: We would have to say that the system is compromised, unquestionably, and you get decisions that don't stick and also you get people who are unhappy with decisions, or take matters into their own hands.



And I think the Luke Batty case gives us all pause for reflection, not because it's got anything to do with the courts in that case - it didn't - but if you look at what the mother knew - she knew about the mental health issues of the father but she didn't think that they were as bad as they were.



And if you imagine that playing out in a courtroom, where there are mental health issues and the court needs to know about those issues and to know the extent of them, and you don't have parties with the capacity to bring the right evidence, then you are certainly putting children at risk.



RACHAEL BROWN: In trying to make its money stretch efficiently, legal aid has been prioritising independent children's lawyers.



Dr Rae Kaspiew from the Australian Institute of Family Studies says they're filling a crucial gap.



RAE KASPIEW: They will subpoena evidence from doctors and perhaps schools if necessary, they have child protection departments, any kind of information that might be available that will assist the court to understand whether a child is at risk or not.



RACHAEL BROWN: But she says funding is an issue.



RAE KASPIEW: Many ICLs in fact do their job essentially on a pro bono basis, without adequate remuneration.



RACHAEL BROWN: And I'm guessing that won't happen forever? People will just get frustrated?



RAE KASPIEW: Well, certainly our report shows that there are signs of pressures in the system.



RACHAEL BROWN: Nicole Rich is the director of Family Youth and Children's Services at Victoria Legal Aid.



NICOLE RICH: We've continued to prioritise funding for those lawyers. I think everyone agrees that they're very important in those cases.



RACHAEL BROWN: She says a lot of effort goes into mediation but the large numbers of unrepresented litigants will continue.



NICOLE RICH: In the last 12 months we at Victoria Legal Aid, we have changed our guidelines again. I don't think we'd pretend that they are ideal. They do mean that there are more people probably without representation going to trial. But that problem's existed for a long time and if we changed our guidelines back tomorrow we'd still have that problem.



Longer-term, everyone agrees that the solution is we do need to look at how the system as a whole, the court system, can actually deal with unrepresented litigants and also deal appropriately with issues of family violence because actually legal aid is not going to fix all of those problems.



RACHAEL BROWN: She says the National Partnership Agreement expires in June, so future Legal Aid funding is dependent on the May budget announcement.



Chief Justice Diana Bryant says the Attorney-General, George Brandis, is aware of the system's problems but she's not holding her breath.



DIANA BRYANT: As you know, money is a scarce commodity for everyone. It's happening all around the world, unfortunately, and money is scarce for courts. But I think we have to think about it.



ELEANOR HALL: That's the Chief Justice of the Family Court of Australia, Diana Bryant. And that report by Rachael Brown.