Executive summary

Background

This report presents the findings for the Evaluation of the Lawyer-Assisted Family Law Property Mediation: Legal Aid Commission Trial (the LAC Trial). The LAC Trial program provides legally assisted mediation for small value property matters (where the net assets are $500,000 or less excluding superannuation). The LAC Trial was one of two complementary initiatives funded under the Women's Economic Security Package (WESP), initially scheduled to run from 1 January 2020 to 31 December 2021, with a later extension to June 2023. The initiatives are aimed at increasing access to mechanisms to resolve post-separation property matters for parties (particularly women) for whom the value of the property pool may make it uneconomic to pursue an outcome through family law system services (mediation or a court process) due to a gap in the availability of efficient, low-cost avenues for property settlement.¹

The evaluation of the program extended over two years, commencing in 2020 and concluding in 2022. The methodology is based on the following data:

1. administrative data obtained from each legal aid commission through the Administrative Data Request and based on data submitted by the legal aid commissions to the Attorney-General's Department in both Year 1 and Year 2 of the LAC Trial
2. case-level data collected by each legal aid commission at year one and year two of the LAC Trial based on information in their client management systems, with some additional data items manually collected by the commission personnel (where available and subject to the privacy and client consent requirements of each commission, n = 725)
3. jurisdictional profiles based on the administrative and case-level data, together with data collected from the Request for Information completed by each legal aid commission
4. qualitative in-depth, semi-structured interviews with professionals (n = 47), survey data for the LAC Trial Survey of Parties (n = 38) and qualitative interviews with parties (n = 2).

In addition to 22 core evaluation questions concerning the efficacy of the trial, the evaluation addresses three additional questions based on these data. The first is a social return on investment analysis assessing the economic benefit of the LAC Trial to parties and the government. Second, case studies based on a program level and a client level. Third, an empirically informed recommendation on the definition of a small value property pool that should be applied if the LAC Trial approach is to be maintained on an ongoing basis. Ethical clearance for the implementation of this research was received from the Australian Institute of Family Studies Human Research Ethics Committee.

There are some limitations in the evaluation methodology. For the case-level data, these relate to variations in the scope of the data able to be collected and submitted by the legal aid commissions and the consequences on these for the analysis. A more limited sample of qualitative interviews with parties was achieved than anticipated. This was due to difficulties engaging with the program, reflecting both the complex issues and circumstances of parties. In these circumstances, the interviews with parties were supplemented by the survey of parties, which included open-text response options.

Objectives of the LAC Trial

According to the Attorney-General's Department (AGD), which funded the LAC Trial and the evaluation, the objectives of the LAC Trial were to support separating couples with small value property pools of $500,000 net or less (excluding superannuation), who require legal advice and support to mediate and reach agreement on family law property splits. According to the AGD, expected benefits under the LAC Trial included:

• greater access to affordable legal services to assist parties to achieve timely, affordable and fair property settlement outcomes following separation, especially parties experiencing family violence, economic abuse, where there is inequality in bargaining power or risk of economic hardship arising from an unresolved property dispute
• greater access to property settlement outcomes following separation, especially for parties experiencing family violence, economic abuse, where there is inequality in bargaining power or risk of economic hardship arising from an unresolved property dispute
• improved financial wellbeing and stability, including alleviated economic hardship and financial stress, especially for parties experiencing family violence, economic abuse, where there is inequality in bargaining power or risk of economic hardship arising from an unresolved property dispute
• an increase in mediated outcomes and pre-court resolution for small value property disputes²
• property settlement outcomes that are fair and enforceable
• better financial disclosure.

Findings

Access to affordable legal services to support property settlement following separation including for vulnerable parties

The administrative data show that there has been strong uptake of the LAC Trial program with more than 1,500 grants of aid to access the LAC Trial approved for parties across Australia. In states where data were available about the number of applications for a grant of assistance in property matters, they indicate that as a proportion of applications, grants of aid for the LAC Trial comprised approximately (18%) of applications in New South Wales, 17% in Queensland, 19 % in South Australia and around half of applications in Western Australia. By way of comparison, a total of 669 property litigation grants and 600 mediation grants were approved nationally in the full year prior to the Trial (2018-19).

Administrative data relating to the number of conferences that were held in the LAC Trial and the number of matters resolved at conference illustrate that most matters progressing to an FDR/mediation conference resolved by agreement in part or in full (81% of 497 matters that progressed to conference) and that most matters concluded with either heads of agreement or consent orders resolving the matter in full. In contrast, in 2018-19, 60% of property mediations engaged Parties 2, with 62% of the matters proceeded to mediation resulting in full or partial agreement. The case-level data also show that most matters (65%) involved only one conference and 21% two conferences, and the duration of most matters from the date of acceptance of Party 1 into the program and the resolution at conference was either a 3-5 month time frame (32%) or a 6-10 month time frame (33%).

These findings are promising. However, other administrative data illustrate some challenges. Not insubstantial proportions of matters were closed before the completion of the LAC Trial process, with some legal aid commissions identifying that further consideration is required in relation to the barriers to client engagement and factors associated with parties withdrawing during the conference preparation phase. However, in this context, it is important to acknowledge that data from other elements of this evaluation, including case-level data, together with the jurisdictional profile, and the qualitative data, illustrate that in addition to benefits arising from matters reaching final agreement, grants of aid in LAC Trial matters facilitate: the provision of legal advice; safety planning; risk management and case management; safer property settlement negotiations and improved financial disclosure; together with effective referrals and supported engagement with other services, such as family violence services, financial counselling and tenancy assistance services. These services support not only resolutions of matters that progress outside of the LAC Trial by consent or by judicial determination, but also improved social and financial wellbeing for participating parties.

The case-level intake data resulted in a final sample of 725 total matters across years one and two. Matters from New South Wales (29%) accounted for more than one quarter of the sample and nearly two in 10 matters were from the Northern Territory LAC Trial program. The Victorian and ACT matters comprised 13% and 14% of the case-level data sample.

The evaluation indicates that the LAC Trial increased access to post-separation property resolution mechanisms particularly for women. Women (most commonly Party 1s) instigated the LAC Trial process in the vast majority of cases (83%). Women were also most likely to be Party 1s where matters were set down for an FDR/mediation conference (82%) and most likely to be granted aid for an application in the PPP500 (89%) if the matter did not proceed in the LAC Trial. In this context, it is noted that women were most likely to have the parties' children primarily residing with them where their matter proceeded to conference, where the matter progressed to litigation or was discontinued. These findings suggest that the LAC Trial is important in supporting access to post-separation property settlement for primary caregivers.

Analysis of the case-level data according to party and gender indicates that men were primarily family violence perpetrators in these matters. Material relating to family violence was more likely to indicate that the perpetrator was a Party 2 (57%) or a male (60%) as compared to Party 1s and female parties.

The case-level data show that women were more likely than men to receive publicly funded legal support. Party 1s (mostly women) were more likely to be represented by an in-house legal aid commission lawyer (49%) or a private lawyer appointed to the legal aid commission panel and funded by a grant of aid (41%). Party 2s were most likely to be represented by privately retained lawyers (28%) and by legal aid commission panel lawyers (25%). Nearly 18% of Party 2s were unrepresented and the representation status was other/unknown for 22%. These data illustrate that vulnerable parties are afforded access to options to resolve their post-separation property arrangements through the LAC Trial and via referral to the PPP500 Pilot.

The qualitative data from both parties and professionals provide further insight into whether parties, including parties who have experienced family violence or who are otherwise experiencing an inequality of bargaining power have access to affordable legal services to support post-separation property settlements. Both parties and professionals reflected positively on the LAC Trial process as providing access to a low-cost dispute resolution process. Some parties described the process as providing them with an option to resolve their post-separation property arrangements in circumstances where other options were not available to them due to their limited financial resources. Many professionals also indicated that the LAC Trial provided parties with access to property settlements where they would otherwise not have been able to pursue a property settlement due to the prohibitive costs, delays and stress associated with engaging in litigation.

More specifically, the vast majority of professionals participating in qualitative interviews indicated that the LAC Trial had provided accessibility to low-cost, agreement-based outcomes for parties with small property pools. Professionals highlighted how the LAC Trial provided an option for two key groups of clients: First, the LAC Trial was providing access for clients who were referred to by one participant as the 'missing middle'. The 'missing middle' client base was characterised by professionals as clients who would not be eligible for legal aid outside of the LAC Trial due to their level of earnings or assets but who, at the same time, would not have the financial resources required to afford private legal services, including for mediation or legal advice. Second, professionals indicated that the LAC Trial assisted vulnerable and disadvantaged clients who would also lack capacity to privately fund alternative legal services. Professionals described this vulnerable client base as parties who had experienced family and domestic violence, parties with limited bargaining power in a relationship, as well as economically vulnerable parties experiencing financial hardship and/or parties with limited financial literacy. Some professionals suggested that but for the LAC Trial program, it would be likely for vulnerable or disadvantaged parties (including parties who had experienced family and domestic violence and parties in financial distress) to 'walk away' from any property settlement due to of the range of barriers to them accessing suitable and affordable support.

Data from parties in the LAC Trial indicated similar themes. Half of the survey participants indicated that they would have had to pay for a lawyer to negotiate with the other party (50%) if not for the LAC Trial. A further 16% indicated that they would have attempted to represent themselves in court or tried to negotiate with the other party themselves (also 16%). Other LAC Trial parties indicated that they would have done nothing or they were unsure what they would have done in the absence of the LAC Trial, especially where they had already tried unsuccessfully to negotiate directly with their former partner.

Processes supporting financial disclosure

Where matters progressed to conference the case-level data indicated that most commonly Parties 1 and 2 made full disclosure (84% and 72% respectively). However, Party 2s were less likely to make full disclosure than Party 1s, with a statistically significant difference of more than 10 percentage points. Relatedly, Party 2s were more likely to have been assessed as having provided only partial disclosure than Party 1s (19% cf. 10%). Analysis by gender showed similar patterns.

Interviews with professionals indicated that key features of the LAC Trial they considered important to facilitating financial disclosure were the implementation of a preparatory conference, as well as the role of mediators in encouraging financial disclosure, and the case management approach taken by the legal aid commission in intake processes. Professionals also noted the significance of providing both parties with legal representation within the LAC Trial in relation to financial disclosure and supporting their participation more broadly. In reflecting on the reasons for ineffective financial disclosure within the LAC Trial, lawyers often recalled the difficulties associated with receiving adequate disclosure from parties, with some drawing attention to the complexities and vulnerabilities of this client base that make the disclosure process a challenging and confusing one for parties.

Asset pool profiles

In terms of the asset pool profiles, the case-level data indicate that most net real property fell under $300,000, with 51% in this range.³ Negative asset pools were involved in 6% of matters and 14% of matters involved assets of $300,000 to $500,000, while only 7% exceeded $500,000. The median property value was $390,000 with median mortgages of $218,501. The median value of equity in real property across the sample was $177,000 with a mean debt level of $24,585 where property pools were negative.

Case-level data demonstrated that the typical matter progressing to a LAC Trial conference involved a real property with gross value in the range of $300,000 and $500,000 and more than $500,000 (each 31%). The most common mortgage level was less than $300,000 (40%), followed by $300,000 to $500,000 (24%). The analyses showed considerable variation between jurisdictions in the distribution of both negative equity properties and overall values of real property.

Superannuation balances were much higher for men than women. The data show that when considering the combined superannuation for Party 1s and Party 2s, the mean combined superannuation holding is $165,152. Most notable in the data is that the mean superannuation for Party 1 was $38,449 to $38,494, as reported by each party, and for Party 2 the mean superannuation was $109,759 to $116,719. These superannuation data largely reflecting the pattern in superannuation holdings for women ($36,699 to $44,598) and men ($103,275 to $118,123) respectively, with female and male superannuation largely following Party 1 and Party 2 holdings respectively. Other assets such as motor vehicles typically fell into the under $10,000 range but a significant proportion of motor vehicle values were in the unknown range.

Increase in mediated outcomes and pre-court resolutions that improve the financial wellbeing of parties

Case-level data and data from the qualitative elements of the evaluation provide insight into increases in mediated outcomes and pre-court resolutions that improve parties' financial wellbeing. Identifying the extent to which there is an increase in mediated and pre-court resolutions is difficult given that prior to the implementation of the LAC Trial, there were limitations on the options for mediated outcomes and supported pre-court resolutions. Consequently, baseline data are not available on this question. However, case-level data indicate that nearly half of matters were set down for an FDR conference following the suitability assessment phase (44%). As acknowledged above, the administrative and case-level data also indicate that substantial proportions of matters do not proceed beyond the suitability assessment (including because the matter was deemed unsuitable) or are discontinued before the suitability assessment for a range of reasons. Further reasons for parties withdrawing from the LAC Trial at this point included parties not engaging or electing to withdraw from the LAC Trial; the legal aid commission terminating aid due to client failure to engage in processes or to follow reasonable advice; clients in matters where parenting issues became apparent; jurisdictional issues arising in matters; clients settling via private negotiation or engaging private legal representation; and clients leaving the LAC Trial to commence litigation. Data from the case-level sample indicate that nearly half of matters (48%) that did not progress fell into this category.

Findings based on the case-level data regarding the extent to which the LAC Trial resulted in agreements being made in relation to all or some matters indicate that, overall, 77% of matters progressing to conference resulted in a full or partial resolution of the issues in dispute. Most commonly, full settlement was reached (65%), with partial settlement in 3% of matters. Only 20% of matters progressing to conference did not result in agreement being reached on any issues in dispute.

When considering improvements to parties' financial wellbeing, the case-level data show that property and financial interests were redistributed as a result of agreements made in the LAC Trial in 37% of the 214 matters that this information was available for, where these cases had either reached full or partial agreement. These redistributions most commonly involved Party 1 receiving a financial payment with Party 2 retaining the property and refinancing debt (23%). The converse outcome, with Party 2 receiving a financial payment and Party 1 retaining the property and refinancing debt, only applied to 14% of cases. Again, it is noted that Party 1s were more commonly women and Party 2s were more commonly men in the LAC Trial program.

Superannuation adjustments typically involved transfers from Party 2 to Party 1. When parties agreed to redistribute their superannuation, this typically involved a payment transfer from Party 2 to Party 1 (62%) with the median transfer amounting to $45,000. It was uncommon for Party 1 to transfer their superannuation to Party 2 (8%) and, for a substantial minority (30%), it was not clear how parties redistributed their superannuation. Overall, Party 1s or women received greater share from real property and superannuation (53% and 55% respectively) than Party 2s or men (47% and 45% respectively). Notably, where superannuation formed part of the agreements, the mediated outcomes led to the redistribution of superannuation for Party 1s and women (receiving 51% and 53% from the combined superannuation pool).

Most professionals participating in the interviews also indicated that the LAC Trial successfully encouraged resolution by agreement for parties participating in the program. One of the key features of the LAC Trial that was highlighted by participants as facilitating resolution by agreement, was the role of lawyers and mediators in managing and 'reality checking' parties' expectations, as well as providing parties with the opportunity to focus on settlement in a safe and structured environment.

The qualitative data from the interviews and case studies also underscore the observations about increases in outcomes that improve the financial wellbeing of parties. These data indicate the LAC Trial was important for alleviating economic hardship for parties and assisting them in achieving long-term financial security. Professionals also considered the importance of social benefits to parties that are more challenging to quantify; for example, allowing parties to 'move on' and end the financial relationship with the other party, as well as the engagement with therapeutic and other support services via the LAC Trial process. In the context of these social benefits, professionals also emphasised the complex characteristics of the families accessing the LAC Trial, highlighting the vulnerability that this client base presents with, including but not limited to, the experience of family violence, living with a disability, experience of financial hardship, and being from a cultural and linguistically diverse or Aboriginal and/or Torres Strait Islander background.

Fair and enforceable outcomes

In terms of enforceable outcomes, the case-level data indicate that of the matters that reached agreement (in full or in part), under half (44%) were recorded as having resulted in consent orders being made, compared to 14% of resolved matters that were not formalised in consent orders. However, insight from the qualitative data indicates that legal aid commissions were often not advised of, or provided with, copies of consent orders, or there were delays in the confirmation of these details. For those matters that had resolved with consent orders, there was limited evidence of applications for enforcement (3%), although a substantial proportion (39%) had no information available in this regard, and there was limited follow up by legal aid commissions with parties who had reached agreement (10%). The extent to which there are issues with enforcement is difficult to quantify in this context; however, the qualitative data from clients suggest that some issues in relation to enforcement were experienced following resolution through the LAC Trial process.

Data from the qualitative interviews with parties and professionals provide insight on this question. Most professionals suggested that the processes within the LAC Trial result in fair outcomes for parties with small property pools, with most of these participants stressing the importance of legal representation in achieving these outcomes. A smaller group of participants indicated that the LAC Trial facilitated commercial rather than 'fair' outcomes, while another small group of professionals suggested that some improvements were required to ensure fairer LAC Trial outcomes. Parties' views of the program were largely positive. Most of the parties who responded to the survey of parties confirmed that they were satisfied with the LAC Trial process (76%) and with the outcome reached (61%); however, nearly a quarter of parties indicated that they were not satisfied with the process (24%), and 40% indicated that they were not satisfied with the outcome. Positive feedback about the LAC Trial process most frequently applied to the party's experience of legal representation. This included having the support of a lawyer, how their lawyer helped to reach an agreement when the party may not have otherwise been able to do so, and having regard to their lawyer's positive qualities (n = 15). Positive feedback about how the LAC Trial process was implemented featured as well, including that the process was easy to use and benefited from having shuttle and telephone methods. Others indicated that it saved time and money. Of the parties who were dissatisfied with the outcome, some expressed frustration at the lack of cooperation of the other party or that they viewed the settlement that they had agreed to as being unfair.

Adjustments to support further effective implementation

Quantitative and qualitative data relating to the operation of the LAC Trial provide insight into potential adjustments to support the effective implementation of the LAC Trial on a long-term basis and with a view to meeting the needs of vulnerable parties.

Analysis of the data relating to the duration of matters, together with the mixed views from professionals regarding how time-effective the LAC Trial was for parties suggest that consideration should be given to mechanisms to support parties to better engage with the LAC Trial program and to make full and frank financial disclosure in a timely fashion. Approximately half of the sample of professionals suggested that the LAC Trial program was a quicker option for parties to achieve a property settlement, while the other half indicated that the LAC Trial was not faster than standard options available to this client base. Nevertheless, professionals identified the steps taken to facilitate the timely progression of matters including the implementation of deadlines within the LAC Trial process as well as the significant role of legal practitioners in keeping property matters 'moving along' in the LAC Trial. Other professionals, including those who considered the LAC Trial to be no faster than other standard options available to parties, identified the LAC Trial as providing other significant benefits to parties that justified the timing, including access to much needed services and supports, as noted above, including family violence services, financial counselling and tenancy assistance services.

Professionals proposed a number of adjustments to the approaches applied in the LAC Trial to support effective long-term implementation, and to better meet the needs of vulnerable parties. First, professionals suggested expanding the scope of the LAC Trial with increased funding so that more vulnerable parties could have access to the program and allocating further funding to reflect the work being performed (particularly by lawyers) in the LAC Trial. Second, professionals called for further professional development for practitioners working in the LAC Trial, with some recalling their limited prior experience in property/financial matters. Third, professionals indicated that further legislative and systemic support needed to be built into the LAC Trial. The legislative support would involve an increased legal incentive for parties to participate fully and settle their property matter within the LAC Trial (e.g. by introducing a 'genuine steps' requirement similar to Family Law Act 1975 (Cth) s 60I for parenting matters). Systemic support would involve a stronger link between the LAC Trial (and legal aid services more generally) and the courts. Professionals also emphasised the need for greater supports for vulnerable and disadvantaged parties within the LAC Trial. For example, some professionals proposed more consistent access to social supports for clients across all program locations, including accessto social workers and financial counsellors, as these supports were not available in some jurisdictions. Additionally, to remedy issues associated with financial disclosure, some legal practitioners proposed simplifying and streamlining required financial disclosure documentation and having a clearer process in place for working with parties to achieve full and frank disclosure.

Definition of small value property matters

Based on:

• the consideration of data from this evaluation
• ABS household wealth data
• insights from qualitative interviews with professionals

a recommendation in relation to the definition of small value property matters is outlined, having regard to the objectives of the WESP and the LAC Trial, in particular, in providing access to affordable property settlement outcomes for vulnerable parties.

The median net value of assets for Australian households of $579,200. It is recommended that a small value property definition for the further implementation of the LAC Trial should include net assets up to $550,000 and exclude the valuation of superannuation assets in the calculation of the property pool definition.

Analysis of the qualitative interview data with professionals identified concerns about the definition of small property pool matters for the LAC Trial. Some professionals thought the definition needed to be expanded or more flexible (including for larger asset pools). Other professionals noted the relationship between geographic location and how these influence real estate property prices and therefore eligibility for the program. Given this volatility in the real estate market and variations between states and territories, these factors are also indicative of the need to periodically review the definition of small value property matters for an effective implementation of the LAC Trial on an ongoing basis.

Social return on investment

The use of a social return on investment (SROI) methodology to assess the social value of the LAC Trial provides insight into the economic and social benefits of the trial, particularly for vulnerable parties, and the extent to which the trial is an efficient means of assisting parties to resolve their post-separation property and financial arrangements. A SROI ratio of 4.69 was calculated indicating that for every $1.00 invested in the LAC Trial, $4.69 of social value was generated for the LAC Trial stakeholders.

The SROI ratio was robust to alternative assumptions and the sensitivity analysis showed that the SROI ratio was above 1 under alternative assumptions ranging from 1.31 to 4.69. These results suggest that it is both a prudent and efficient means of assisting parties to resolve their post-separation property and financial arrangements.

It is important to acknowledge that there are limitations associated with this SROI. Of particular significance, there were some outcomes and benefits of significance to the parties, (particularly those parties who are vulnerable or otherwise disadvantaged) that could not be monetised. The quantitative and qualitative elements of this evaluation have illustrated that the benefits that were identified as objectives of the WESP, which established the LAC Trial, that could not be monetised in this SROI analysis, included parties' access to:

• a simple and cost-effective dispute resolution option where other dispute resolution options are not feasible and resolution is unlikely in the absence of this formal intervention
• warm referrals to relevant legal, housing, financial and therapeutic supports for disadvantaged and vulnerable parties
• a case-managed process where parties are generally legally represented that empowers vulnerable and disadvantaged parties by addressing the power imbalances, while also supporting them to resolve their disputes by consent where possible or by referral to the court
• heads of agreement or court orders that:
  • address outstanding property and financial arrangements that allow parties to re-establish themselves post-separation (e.g. through the liquidation of assets, superannuation splitting and/or the refinancing of, and indemnification against debt), which may, in turn, reduce reliance on the social security benefits
  • formalise these post-separation property and financial arrangements, providing a record of the finalised arrangements that can be enforced by the court if required and that mitigates against attempts to reopen the matter or to issue future proceedings
• reduced stress and anxiety associated with legal proceedings and the exposure to ongoing family violence, with these effects experienced by parties and their children and other family members and the parties' lawyers during litigation
• outcomes that supported improved emotional wellbeing of parties and their children in addressing unresolved post-separation property and financial arrangements and formally ending the financial relationship of separated and divorced parties.

More generally, it is also important to acknowledge the potential impact of the COVID-19 pandemic on the operation of the LAC Trial, with the potential for the COVID-19 restrictions to have affected outcomes of the LAC Trial program, which, in turn, may affect the assessment of outcomes in the context of the SROI.

Conclusion

In conclusion, the findings of this evaluation support the implementation of the LAC Trial on an ongoing basis. It is an efficient way of assisting parties with modest property pools to resolve post separation financial matters. With a slight adjustment to the entry criteria, the suggested definition is in line with average wealth profiles in the population.