Jeremy Sutton: The high legal cost of getting protection from an abusive partner

OPINION:

New Zealand has a legal aid programme available for people trying to resolve a problem in court but cannot afford a lawyer. Legal aid is funded by the Government and enables people on low incomes to obtain legal help. This system ensures that people are not denied access to justice because they cannot afford to pay a lawyer.

Who qualifies for legal aid?

Whether you qualify for legal aid depends on how much you earn, what property you own and whether you have any financially dependent children. If you have a partner, their income and assets will also be considered in your application.

The current maximum income thresholds for legal aid are:

• $23,820 a year for a single applicant with no dependent children

• $37,722 a year for a single applicant with one child or an applicant with a spouse or partner and no dependent children

• $54,245 a year for a single applicant with two children or an applicant with a spouse or partner and one child

This threshold continues to increase by $7000-$8000 for each additional child.

An applicant must also not have significant disposal capital. They cannot have more than $3500 as a single applicant. This maximum is increased by an additional $1500 if they have a partner and for each dependent child.

Family violence

New Zealand has an extremely high rate of family violence. Legal aid is an essential tool for victims seeking protection from their abuser. Legal aid is considered to be a loan. The applicant will usually have to pay back some or all of the funds they receive.

However, this is not the case for victims of family violence who have applied for a protection order against their abuser. The protected person will usually not have to repay any legal aid used for that application.

The cost of applying for a protection order is generally between $3000-$4000 plus GST. The fees will vary throughout the country depending on a variety of factors. If the other party chooses to defend the protection order, the cost can increase up to $7000-$10,000 plus GST in total.

However, the income and asset thresholds for legal aid are very low. Unless the person is working part-time at minimum wage or on a benefit, they will not typically qualify for legal aid.

This means that many applicants have applied for a protection order and had to bear this cost themselves, even though they really should not have given their financial circumstances. The costs associated with a protection order are disproportionate and unrealistic for a person who earns the minimum wage.

Developments

Some significant changes have been made to the legal system to provide better support and protection to family violence victims. The Family Violence 2018 Act and Family Violence (Amendments) 2018 Act came into effect in July 2019. These Acts brought in a whole suite of changes concerning how the court treats and reacts to family violence.

Criminal offence

A critical aspect of these changes was creating a new specific criminal offence for anyone who assaults a family member. This is now a criminal offence for which someone can be punished by up to two years imprisonment.

The criminal court can also order a protection order be granted as part of the sentencing process.

Police Safety Order

Before a protection order application is made, the police can issue a Police Safety Order if they believe it is necessary to help make someone safe from family violence. This is a temporary measure that prevents the person served the order from contacting or going near any building that the protect person occupies (including a family home that they live in together).

This is only a temporary order. It will only last forfive to 10 days. However, it provides a protected person with time to apply for a protection order if necessary.

How can we improve access to justice for victims?

The changes that have been implemented in recent years demonstrate that society has recognised the importance of protecting our vulnerable people. However, we need to go further.

A person earning as little as $50,000 with one child will generally not get legal aid. To me, this is a blatant injustice. There needs to be better access to justice in an area where the person is protecting themselves and their children. Society has a public interest in ensuring that everyone is safe and protected properly and efficiently.

Increase the minimum income level

The government should consider increasing the maximum income threshold to enable more people to access legal aid when applying for a protection order. The people most often applying for a protection order are adults who are protecting themselves and their children.

A distinct protection order service

Alternatively, a distinct protection order service could be set up funded by the government. This would provide people applying for a protection order the ability to easily obtain this service without cost, regardless of their income or assets.

Provide additional funding to Community Law Centres

Community Law Centres around the country can provide some free legal help. They have great educational resources. They can also offer limited advocacy assistance. However, the centres are often underfunded for advocacy purposes. This means they often do not have the resources to make an urgent application for a protection order. A protection order should generally be applied for on the same day or very soon after an incident of abuse.

The centres could be funded better to ensure they have designated lawyers who can help with an urgent application for a protection order.

Summary

We need to make it as easy as possible for people who seek and need protection. There is a significant public interest in ensuring that family violence victims (including children) are taken care of in the easiest possible way.

– Jeremy Sutton is a barrister and mediator for Bastion Chambers.

Source: Read Full Article