Adversarial Mythologies: Policy Assumptions and Research Evidence in Family Law

Journal of Law and Society

Volumn 30, Issue 1 SPEC. ISS., 2003, Pages 156-176

  Hunter, Rosemary ^a  

^a GRIFFITH UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

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EID: 0142230885     PISSN: 0263323X     EISSN: None     Source Type: Journal    
DOI: 10.1111/1467-6478.00251     Document Type: Review

References (114)

1. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
2. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
3. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
4. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
5. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
6. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
7. For example, Lord Woolf, Access to Justice: Interim Report (1995); Lord Woolf, Access to Justice: Final Report (1996); J. Eekelaar et al., Family Lawyers: The Divorce Work of Solicitors (2000) 2, 6, 7, 9; P. Lewis, Assumptions About Lawyers in Policy Statements: A Survey of Relevant Research (2000); Commonwealth of Australia, Attorney-General's Department, The Delivery of Primary Dispute Resolution Services in Family Law (1997) and The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (1998); Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation (2001) ES 4, 58. See, also, M. Galanter, 'Predators and Parasites: Lawyer-Bashing and Civil Justice' (1994) 28 Georgia Law Rev. 633 for United States examples.
8. The aim of the research project is to examine the changes in Australian legal aid policies and practices in the 1990s, their immediate rationales and philosophical underpinnings. The research is funded by a Griffith University Research Development Grant.
9. Interviewee 6, interviewed by R. Hunter and J. Giddings, 6 December 2001.
10. Interviewee 4, interviewed by R. Hunter and J. Giddings, 15 November 2001.
11. While this proposition is true in Australia because of the way alternative dispute resolution processes are structured and because of the effectively mandatory referral of legal aid clients to ADR, it has been queried in the United Kingdom: see, for example, Eekelaar et al., op. cit., n. 1, pp. 28-9. A pilot study of family mediation under the United Kingdom Family Law Act 1996, which involved public funding of mediation services, a requirement that legal aid applicants consider mediation before being eligible for funding for legal representation, and assessment of the suitability for mediation of all such cases found that mediation did not necessarily achieve cost savings for the government: G. Davis et al., Monitoring Publicly Funded Family Mediation: Final Report to the Legal Services Commission (2000).
12. While this proposition is true in Australia because of the way alternative dispute resolution processes are structured and because of the effectively mandatory referral of legal aid clients to ADR, it has been queried in the United Kingdom: see, for example, Eekelaar et al., op. cit., n. 1, pp. 28-9. A pilot study of family mediation under the United Kingdom Family Law Act 1996, which involved public funding of mediation services, a requirement that legal aid applicants consider mediation before being eligible for funding for legal representation, and assessment of the suitability for mediation of all such cases found that mediation did not necessarily achieve cost savings for the government: G. Davis et al., Monitoring Publicly Funded Family Mediation: Final Report to the Legal Services Commission (2000).
13. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
14. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
15. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
16. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
17. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
18. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
19. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
20. J. Griffiths, 'What Do Dutch Lawyers Actually do in Divorce Cases?' (1986) 20 Law and Society Rev. 135; R. Ingleby, Solicitors and Divorce (1992); G. Davis et al., Simple Quarrels: Negotiating Money and Property Disputes on Divorce (1994); L. Mather et al., '"The Passenger Decides on the Destination and I Decide on the Route": Are Divorce Lawyers "Expensive Cab Drivers"?' (1995) 9 International J. of Law and the Family 286; A. Sarat and W.L.F. Felstiner, Divorce Lawyers and their Clients: Power and Meaning in the Legal Process (1995); R. Hunter et al., Legal Services in Family Law (2000) ch. 7; Eekelar et al., op. cit., n. 1. L. Mather et al., Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001) found that lawyers dealing with 'high end' divorce clients tended to be litigious, however those dealing with clients with more limited resources emphasized settlement.
21. Hunter et al., id., chs. 1, 2. The study was conducted by the Justice Research Centre, Law Foundation of N.S.W. and funded by the Commonwealth Attorney-General's Department and Department of Finance. Interviews were conducted with a total of 80 private sector and 23 Legal Aid Commission lawyers.
22. id., p. 330.
23. id., p. 332.
24. id. For similar findings in the United Kingdom, see Ingleby, op. cit., n. 6; Davis et al., op. cit., n. 5.
25. id. For similar findings in the United Kingdom, see Ingleby, op. cit., n. 6; Davis et al., op. cit., n. 5.
26. id. For similar findings in the United Kingdom, see Ingleby, op. cit., n. 6; Davis et al., op. cit., n. 5.
27. A. Melville et al., 'Phase One of a National Evaluation of Primary Dispute Resolution Programs in Legal Aid Commissions: Report Prepared for the Family Law and Legal Assistance Division, Commonwealth Attorney-General's Department' (2000) 203 (unpublished report on file with author).
28. id., p. 197.
29. Part III of the Family Law Act 1975 (Aust.) establishes the principle that people should be encouraged to resolve disputes following the breakdown of a relationship by means of out-of-court resolution processes collectively labelled 'primary dispute resolution'. 'Primary dispute resolution' includes, but is not confined to, family and child counselling, family and child mediation, and arbitration: s. 14E.
30. Davis et al., op. cit., n. 5, pp. 276-7.
31. Eekelaar et al., op. cit., n. 1, p. 184.
32. id., p. 187.
33. Family Law Pathways Advisory Group, op. cit., n. 1, pp. ES 17, 52.
34. See n. 13 above.
35. M. Galanter, 'Worlds of Deals: Negotiation to Teach About Legal Process' (1984) 34 J. of Legal Education 268.
36. For example, Family Court of Australia, Report to the Chief Justice of the Evaluation of Simplified Procedures Committee (1997) 64-6, showing 7 per cent of cases proceeding to judgment in 1995 and 1996. The equivalent figure for 1997-98 was 5 per cent.
37. The Family Court of Australia has judges permanently stationed in a number of locations (Registries) around the country. There are twelve Registries in total: Townsville, Brisbane, Newcastle, Sydney, Parramatta, Canberra, Melbourne, Dandenong, Hobart, Darwin, Adelaide, and Perth. The six included in the study were Brisbane, Newcastle, Sydney, Parramatta, Melbourne, and Adelaide - most of these being large Registries.
38. R. Hunter, Family Law Case Profiles (1999) ch. 5.
39. id., tables 5.1, 5.7.
40. id., table 5.6.
41. Ingelby, op. cit., n. 6; Eekelaar et al., op. cit., n. 1, p. 13.
42. Ingelby, op. cit., n. 6; Eekelaar et al., op. cit., n. 1, p. 13.
43. Eekelaar et al., id., pp. 16-17.
44. R. Kagan, Adversarial Legalism: The American Way of Law (2001) 116.
45. R. Mnookin and L. Kornhauser, 'Bargaining in the Shadow of the Law: The Case of Divorce' (1979) 88 Yale Law Rev. 950.
46. See, for example, H. Rhoades et al., The Family Law Reform Act: The First Three Years (2000).
47. For example, Hunter et al., op. cit., n. 6, pp. 174-6, 213-25; K. Rendell et al., An Unacceptable Risk: A Report on Child Contact Arrangements Where There is Violence in the Family (2000).
48. For example, Hunter et al., op. cit., n. 6, pp. 174-6, 213-25; K. Rendell et al., An Unacceptable Risk: A Report on Child Contact Arrangements Where There is Violence in the Family (2000).
49. Family Law Pathways Advisory Group, op. cit., n. 1, pp. 13, 82; T. Brown et al., Resolving Family Violence to Children (2001), report and executive summary available at 〈www.familycourt.gov.au/papers/pdf/magellan.pdf〉.
50. Family Law Pathways Advisory Group, op. cit., n. 1, pp. 13, 82; T. Brown et al., Resolving Family Violence to Children (2001), report and executive summary available at 〈www.familycourt.gov.au/papers/pdf/magellan.pdf〉.
51. Brown et al., id. The results of the baseline study are reported in T. Brown et al., Violence in Families: Report number one: The management of child abuse allegations in custody and access disputes in the Family Court of Australia (1998). The costs in Australian dollars were $22,666 and $13,770 respectively.
52. Brown et al., id. The results of the baseline study are reported in T. Brown et al., Violence in Families: Report number one: The management of child abuse allegations in custody and access disputes in the Family Court of Australia (1998). The costs in Australian dollars were $22,666 and $13,770 respectively.
53. Brown et al., id. (2001).
54. Family Law Pathways Advisory Group, op. cit., n. 1, recommendation 19.
55. id., pp. ES 10, 21.
56. id., p. 7.
57. id., p. ES 18.
58. id., p. ES 3; see, also, p. 76.
59. id., p. ES 3; see, also, p. 76.
60. id., p. 76.
61. Hunter, op. cit., n. 22, pp. 35, 84-5, 193-94; Hunter et al., op. cit., n. 6, pp. 213-15; Melville et al., op. cit., n. 11, pp. 36, 42, 45, 47, 56; Rendell et al., op. cit., n. 30, p. 66.
62. Hunter, op. cit., n. 22, pp. 35, 84-5, 193-94; Hunter et al., op. cit., n. 6, pp. 213-15; Melville et al., op. cit., n. 11, pp. 36, 42, 45, 47, 56; Rendell et al., op. cit., n. 30, p. 66.
63. Hunter, op. cit., n. 22, pp. 35, 84-5, 193-94; Hunter et al., op. cit., n. 6, pp. 213-15; Melville et al., op. cit., n. 11, pp. 36, 42, 45, 47, 56; Rendell et al., op. cit., n. 30, p. 66.
64. Hunter, op. cit., n. 22, pp. 35, 84-5, 193-94; Hunter et al., op. cit., n. 6, pp. 213-15; Melville et al., op. cit., n. 11, pp. 36, 42, 45, 47, 56; Rendell et al., op. cit., n. 30, p. 66.
65. For example, L. Girdner, 'Mediation Triage: Screening for Spouse Abuse in Divorce Mediation' (1990) 7 Mediation Q. 365; J. Kelly, 'A Decade of Divorce Mediation Research: Some Answers and Questions' (1996) 34 Family and Conciliation Courts Rev. 373; Keys Young, Research/Evaluation Study of Family Mediation Practice and the Issue of Violence: Final Report (1996) 122-9; J. Pearson, 'Mediating When Domestic Violence Is a Factor: Policies and Practices in Court-Based Divorce Mediation Programmes' (1997) 14 Mediation Q. 319.
66. For example, L. Girdner, 'Mediation Triage: Screening for Spouse Abuse in Divorce Mediation' (1990) 7 Mediation Q. 365; J. Kelly, 'A Decade of Divorce Mediation Research: Some Answers and Questions' (1996) 34 Family and Conciliation Courts Rev. 373; Keys Young, Research/Evaluation Study of Family Mediation Practice and the Issue of Violence: Final Report (1996) 122-9; J. Pearson, 'Mediating When Domestic Violence Is a Factor: Policies and Practices in Court-Based Divorce Mediation Programmes' (1997) 14 Mediation Q. 319.
67. For example, L. Girdner, 'Mediation Triage: Screening for Spouse Abuse in Divorce Mediation' (1990) 7 Mediation Q. 365; J. Kelly, 'A Decade of Divorce Mediation Research: Some Answers and Questions' (1996) 34 Family and Conciliation Courts Rev. 373; Keys Young, Research/Evaluation Study of Family Mediation Practice and the Issue of Violence: Final Report (1996) 122-9; J. Pearson, 'Mediating When Domestic Violence Is a Factor: Policies and Practices in Court-Based Divorce Mediation Programmes' (1997) 14 Mediation Q. 319.
68. For example, L. Girdner, 'Mediation Triage: Screening for Spouse Abuse in Divorce Mediation' (1990) 7 Mediation Q. 365; J. Kelly, 'A Decade of Divorce Mediation Research: Some Answers and Questions' (1996) 34 Family and Conciliation Courts Rev. 373; Keys Young, Research/Evaluation Study of Family Mediation Practice and the Issue of Violence: Final Report (1996) 122-9; J. Pearson, 'Mediating When Domestic Violence Is a Factor: Policies and Practices in Court-Based Divorce Mediation Programmes' (1997) 14 Mediation Q. 319.
69. S. Cobb, The Domestication of Violence in Mediation' (1997) 31 Law and Society Rev. 397; D. Greatbatch and R. Dingwall, 'The Marginalization of Domestic Violence in Divorce Mediation' (1999) International J. of Law, Policy and the Family 174.
70. S. Cobb, The Domestication of Violence in Mediation' (1997) 31 Law and Society Rev. 397; D. Greatbatch and R. Dingwall, 'The Marginalization of Domestic Violence in Divorce Mediation' (1999) International J. of Law, Policy and the Family 174.
71. Melville et al., op. cit., n. 11, pp. 41, 43, 46; Rendell et al., op. cit., n. 30, p. 70.
72. Melville et al., op. cit., n. 11, pp. 41, 43, 46; Rendell et al., op. cit., n. 30, p. 70.
73. Melville et al., id., pp. 36, 40.
74. id., p. 40.
75. The 'reasonable prospects of success' test is one limb of the three-pronged merits test imposed under the Commonwealth legal aid guidelines. 'Reasonable prospects of success' is expressed to mean more than a 50 per cent chance of success.
76. Family Law Act 1996, s. 29.
77. Davis et al., op. cit. , n. 5, p. 285.
78. Hunter et al., op. cit., n. 6, p. 78 (n = 10/53).
79. Under the Commonwealth family law legal aid guidelines in operation at the time of the study, legal aid was unavailable for property proceedings except in the extremely rare circumstances that (i) the applicant was likely to retain the family home; (ii) they could not borrow sufficient funds both to buy out the other party's interest in the family home and pay the anticipated legal costs of the proceedings, and (iii) the equity of the home was valued at more than $A10,000 but less than $A20,000 (€5,500-11,000). In the earlier Family Law Case Profiles study, 17 per cent of self-funding clients of private solicitors were reliant on social security, with the majority excluded from legal aid because their dispute involved property division: Hunter, op. cit., n. 22, p. 73.
80. The client had applied for legal aid but failed the means test in two of the five cases involving children only, and one of the five cases involving children and property.
81. The client had not applied for legal aid in three of the five cases involving children only.
82. Hunter et al., op. cit., n. 6, p. 78 (n = 13/176). These clients' average annual income was $A14,196, compared to an average annual income of $A13,233 for legally aided clients (€7,808 compared to €7,278).
83. See the article by L. Mather in this volume, p. 137.
84. That is, in disputes over arrangements for children and the disposition of property after separation. Self-representation through the quasi-administrative process of divorce itself is expected - indeed more or less encouraged - and does not pose the same problems as self-representation in adversarial proceedings.
85. Family Court of Australia, 1998 Study of the Effects of Legal Aid Cuts on the Family Court of Australia and Its Litigants: Final Report (1998) table 8.3: 34.6 per cent of cases coming before a registrar, judicial registrar or judge in a two-week period in 1998 involved at least one self-representing litigant; Australian Law Reform Commission, Discussion Paper 62: Review of the Federal Civil Justice System (1999) 375: 41 per cent of cases finalized in the Family Court in May-June 1998 involved at least one fully or partially self-representing litigant.
86. Family Court of Australia, 1998 Study of the Effects of Legal Aid Cuts on the Family Court of Australia and Its Litigants: Final Report (1998) table 8.3: 34.6 per cent of cases coming before a registrar, judicial registrar or judge in a two-week period in 1998 involved at least one self-representing litigant; Australian Law Reform Commission, Discussion Paper 62: Review of the Federal Civil Justice System (1999) 375: 41 per cent of cases finalized in the Family Court in May-June 1998 involved at least one fully or partially self-representing litigant.
87. R. Hunter et al., The Changing Face of Litigation: Unrepresented Litigants in the Family Court of Australia (2002).
88. Family Law Pathways Advisory Group, op. cit., n. 1, p. 75.
89. See W. Felstiner, R. Abel, and A. Sarat, 'The Emergence and Transformation of Disputes: Naming, Blaming and Claiming ...' (1981) 15 Law and Society Rev. 631.
90. Family Law Pathways Advisory Group, op. cit., n. 1, p. 58.
91. Ibid. id.
92. J. Dewar et al., 'The Impact of Legal Aid Changes on Family Law Practice' (1999) 13 Aus. J. of Family Law 33.
93. Australian Law Reform Commission, op. cit., n. 56, p. 377.
94. Hunter et al., op. cit., n. 57, pp. 71-2.
95. Also Australian Law Reform Commission, op. cit., n. 56, p. 377.
96. Hunter et al., op. cit., n. 57, p. 72.
97. id., pp. 63-4.
98. Lewis, op. cit., n. 9.
99. Melville et al., op. cit., n. 11, pp. 59-60.
100. id., p. 57.
101. id., pp. 61-62.
102. id., p. 61.
103. id., p. 62.
104. Ibid. id.
105. Rendell et al., op. cit., n. 30, p. 73.
106. Keys Young, op. cit., n. 41, pp. 65-6, 78-9.
107. G. Sheehan and B. Smyth, 'Spousal Violence and Post Separation Financial Outcomes' (2000) 14 Aus. J. of Family Law 102, at 112.
108. G. Sheehan, 'What Counts? The "Other" Factors that Influence Property Allocation on Divorce' in 9th National Family Law Conference, July 2000, Sydney: Conference Handbook (2000) 545, at 550.
109. id., p. 552; G. Sheehan and J. Hughes, Division of Matrimonial Property in Australia (2001) 26.
110. id., p. 552; G. Sheehan and J. Hughes, Division of Matrimonial Property in Australia (2001) 26.
111. Sheehan and Smyth, op. cit., n. 77, pp. 112-13.
112. See, for example, Hunter et al., op. cit., n. 6, pp. 286-8; Family Law Pathways Advisory Group, op. cit., n. 1, p. 9.
113. See, for example, Hunter et al., op. cit., n. 6, pp. 286-8; Family Law Pathways Advisory Group, op. cit., n. 1, p. 9.
114. Family Law Pathways Advisory Group, id., p. 10.