History of legal aid and family law

History of legal aid and family law

Our research brief explores the timeline of legal aid and family law in Australia, as well as ongoing reform and the pressures on legal aid services. 

Download the research brief History of legal aid and family law (doc, 326 KB).

Key findings

The history of family law is a reflection of the social circumstances of the time. Legal divorce proceedings were generally not available to the ordinary person until relatively recent times, so legal assistance for divorce was not common in the 19th century. 

Legal assistance for matrimonial matters was only available in a limited capacity until the 1960s, when the Legal Aid Committee was established in Victoria.

The operation of family law in Australia has been heavily influenced by our constitution, and distinctions between federal and state laws. Family law is a product of the combination of Commonwealth power in relation to marriage and divorce, with the states retaining powers in relation to child welfare, property matters and de facto relationships. This is reflected in current legal aid funding arrangements, where legal matters related to families (such as family violence and child protection) are funded by the state, while the Commonwealth funds matters in relation to family breakdown and parenting disputes. 

The modern family law system and the modern family law legal aid system arise from the introduction of no-fault divorce, the establishment of the Family Court of Australia and the establishment of the Australian Legal Aid Office and subsequently state-based legal aid commissions in the mid 1970s.

In the first year of the Legal Aid Commission of Victoria’s operation, there were roughly equal numbers of family law and criminal law grant of aid approvals. However, in times of economic restraint, legal aid agencies have restricted their services, with family and civil law matters being cut more severely than criminal law services. This is due to a number of historical factors, but may also be due to underlying assumptions about the relative importance of different sorts of legal problems.

Where criminal law legal aid has been prioritised over legal aid for family and civil matters, this has impacted on women’s access to legal aid as the overwhelming majority of crime is committed by men. This is despite women being more likely to be economically disadvantaged. 

There have been further significant changes to Australia’s family law system throughout the 1990s and 2000s and family law legal aid services have had to change regularly to keep up with these developments as well as funding pressures.