Financial sustainability

Financial sustainability

Victoria Legal Aid began active steps last year to return to a sustainable budget, to avoid large operating deficits that are forecast in the future due to a range of demand pressures in the justice system. 

Since August 2019 we have been consulting publicly on possible changes in child protection and family law services to make financial savings in line with our available funding. 

We have received important and helpful feedback from stakeholders on the proposed savings measures and have taken this into account in confirming our decisions on next steps

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Child protection legal services (state-funded)

We will go ahead with the following two measures, the first with some modification to the original proposal and the second as originally proposed:

  • Requiring legal aid-funded parties to seek costs against the Department of Health and Human Services (DHHS) if the DHHS has not filed and served on all parties a report when required to by legislation or by court order, unless all parties consent to the making or variation of a court order.

Stakeholders acknowledged concerns with the late filing of reports and the impacts this has on parties as well as on efficient court proceedings. 

Our original proposal was to require the seeking of an adjournment and costs whenever the DHHS has not provided a report within the legislated timeframe of 3 days before hearing. However, we agree with concerns raised by stakeholders that there are circumstances when matters can and should still proceed, particularly for the benefit of the children and parents involved. 

This measure has therefore been modified, to recognise that costs should be sought where non-compliance has meant a matter cannot proceed appropriately on the day, for example because parties (including the child) are not available to provide instructions or it would be unfair to the parties to consider substantial amounts of new material on the day.

  • Limiting funding for legal representation for Children’s Court conferencing to only one conciliation conference per matter. 

We maintain strong support for alternative dispute resolution that aims to avoid court contests, however this must be delivered in a cost-efficient manner and we are seeking that more matters resolve at the first conference. Some concerns were raised that this proposal could lead to an increase in contested matters but on balance it was considered manageable by most stakeholders.

Proposed start 17 February 2020.

We also propose to go ahead with the following measure, modified from the original proposal, but are first seeking feedback on its amended form:

  • Limiting eligibility for grants of assistance to exclude spouses and domestic partners as referred to under the definition of parent in section 3 of the Children, Youth and Families Act 2005, except where the spouse or domestic partner:
  1. is a primary carer of the child; or
  2. ordinarily lives with the subject child and the DHHS seeks an order (including an interim order) to restrict contact or communication between them and the child;
    and the conditions restricting contact or communication are different from the conditions sought for the mother or father to whom they are a spouse or domestic partner.

Our original proposal was to exclude parents who have not lived with their child for some time, with some exceptions. Stakeholders acknowledged the intent to further prioritise eligibility for grants but expressed concerns that the original proposal may disproportionately impact Aboriginal families, victims of family violence, those experiencing homelessness, those experiencing mental illness, and children, and provided examples of unintended outcomes. 

This measure has therefore been modified to more clearly set out the parents who would be affected by this restriction.

Proposed start – 1 July 2020.

We will not go ahead with the following measure:

  • Removing interim accommodation order adjournment fees and only paying for appearances where there is substantive progress of a matter. 

This change would align with VLA’s fee structure for summary crime matters and ensure a fee is only payable where there is substantive progress of the matter. However, we agree with concerns raised by stakeholders about the disproportionate impact that being unrepresented at early stages of court proceedings would have on clients in this jurisdiction and the impact of this on vulnerable children, particularly in regional areas. 

Given this decision, we will need to consider alternative child protection savings proposals in the coming months as our financial situation remains challenging. We will consult publicly on any new proposals before making any changes.

Intervention order legal services (state-funded)

We will go ahead with the following two measures, with some modification to the second: 

  • Removing grants of aid for adults for personal safety intervention order matters.
  • Removing duty lawyer services for adults in personal safety intervention order matters, with exceptions that duty lawyer services will still be available where:
  1. the client is receiving assistance with a related family violence intervention order matter, or 
  2. the duty lawyer is already present at court for other lists and the client has a cognitive or neurological disability.

These exceptions respond to stakeholder concerns for vulnerable clients, particularly those with intellectual disability, if they do not have access to duty lawyer assistance. It was noted that timely advice and representation helps ensure that orders are made appropriately, that they are tailored to the individual circumstances of the parties and that clients understand the order and its conditions. This helps to prevent breaches of orders and resulting criminal charges down the track.

The state special circumstances grant guideline will also remain available, including for personal safety intervention order matters.

Proposed start  1 July 2020.

We confirm that we are not proposing any changes to family violence intervention order legal services, or to personal safety intervention order legal services for children, at this time. 

Family law legal services (Commonwealth-funded) 

We will go ahead with the following two measures as originally proposed:

  • Removing the instructing solicitor fee for Independent Children’s Lawyers.
  • Reducing the number of Independent Children’s Lawyer appointments, we fund. 

We have limited control over the appointment of Independent Children’s Lawyers (ICLs) as they are court appointed. Legal Aid Commissions fund these appointments because of their importance in helping courts make decisions in the best interests of children but no specific funding is received for this function. 

We received little feedback on removing the current instructing solicitor fee, but stakeholders raised concerns about the impacts of the proposal to reduce funded ICL appointments on children’s ability to have a voice in proceedings and the efficient management of family law litigation, including impacts on self-represented litigants and possible increases in time in litigation. However, no alternative savings proposals were identified. 

We propose to reduce funded ICL appointments by only funding ICLs appointed based on the first Re K factor, being allegations of physical, sexual or psychological abuse of the child. 

We will monitor this measure to determine if it produces sufficient savings but will need to consider introducing a numerical quota or cap on funded appointments if this measure does not reduce funded appointments sufficiently.

Proposed start – 17 February 2020.

We will also go ahead with the following measure but modified from the original proposal: 

  • Reducing general family law duty lawyer support outside of the Family Advocacy and Support Services (FASS) enhanced duty lawyer service at the Melbourne and Dandenong permanent family law court registries. 

Both FASS and general duty lawyer services are currently delivered at the permanent family law court registries in Victoria by alternate VLA and community legal centre (CLC) services. 

Parties are eligible for FASS if their matter involves a history or risk of family violence. FASS has been evaluated as a highly successful service and funding for the FASS pilot was recently extended for another three years. FASS has also become the primary channel for duty lawyer services in the permanent family law court registries. 

Stakeholders raised concerns about vulnerable parties, particularly those with cognitive impairment or from a culturally and linguistically diverse background, missing out on general duty lawyer assistance, noting that even if their matter does not involve family violence allegations it may still involve complex issues. The CLCs that provide the alternate services also raised practical issues with the feasibility of removing the funding for their general family law duty lawyer services in terms of maintaining coverage and support for FASS clients.

We will proceed to remove VLA’s general family law duty lawyer services. We will not remove the relevant CLC funding and will work with the CLCs on ongoing arrangements for their alternate services in these circumstances.

Proposed start – 1 July 2020.

A reminder that we have also suspended our previous grant guideline for legal assistance for family law property matters since the new and separately funded family law property mediation trial commenced on 1 January 2020

Criminal and civil law legal services 

We are also continuing to consider indictable crime change proposals, as well as considering savings initiatives in the summary crime area. We will provide further updates on these proposals as they develop. We have delayed the potential removal of the civil guideline for grants of assistance for infringements, however, will revisit this again in mid-2020.

Next steps

We are seeking further feedback on child protection proposal three before we proceed, including on potential unintended impacts or practical considerations for implementation. 

You can contact the relevant senior managers at VLA or provide written feedback to consultation@vla.vic.gov.au We are seeking formal feedback before or by 28 February 2020

We will also now proceed with actions required to implement the measures that will be commencing in February 2020, including VLA ATLAS and Handbook changes. There will be further communication about these measures as they approach commencement.

Demand for legal assistance services continues to be strong in the current financial year so we are continuing to monitor our financial circumstances closely. It is likely we will need to consider further savings measures but will again consult publicly before making any new changes. 

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