The cost of safety
I refer to the article by Rebecca Holm on the cost of safety (LawTalk 865, 22 May 2015, p 32) and the relationship between legal aid and protection orders. Reading the article I felt I needed to clarify how legal aid actually manages domestic violence protection order applications.
I would strongly agree that any person in need of a protection order should have a decision on their legal aid application as soon as possible. The form states that a decision is usually made within 15 working days of receiving it. However, domestic violence (DV) applications are always treated with urgency and prioritised for a decision according to the next court date.
Section 4(1) of the Legal Services Act 2011 qualifies DV cases as a specified application. This means that where legal aid would normally be refused because either the gross annual income or disposable capital thresholds have been exceeded, legal aid may be granted if there are special circumstances pursuant to s 10(2) of the Act. This section is commonly applied in DV applications. The two main considerations when applying the special circumstances criteria are the likely cost of the proceedings to the applicant and their ability to fund the proceedings if legal aid is not granted. A partner’s resources are never used in the financial assessment as they have a contrary interest in the proceedings.
Section 18(7) of the Act automatically removes all conditions from the grant of legal aid for DV applications (ie, no repayments, charges or caveats against the applicant) unless there are exceptional circumstances. An example of the latter may be where the applicant has a sizeable interest in a property. However, this wouldn’t apply unless, for example, the applicant’s interest was in excess of $500,000.
In order to determine any exceptional circumstance, we must have full income and asset information. It is this requirement that leads to the need for multiple questions and an 11-page form. Only those who can’t afford to pay for a lawyer should be approved for legal aid to ensure the long term viability of the scheme and that legal aid is being spent appropriately.
In the last 12 months, 3,911 Domestic Violence (applicant) applications were received. Out of those, just 110 (or 3%) did not receive legal aid as they could afford to pay for a lawyer themselves.
I will be happy to clarify further if required.
Michele McCreadie
General Manager, Legal Aid Services
Lawyers not recognised
We thought you might be interested in the response our client had from the High Commission of India in Wellington.
We made numerous calls to the High Commission on behalf of our client and sent various letters, the High Commission refused to talk to us as lawyers and would only correspond with our client directly.
As you can imagine this is a ludicrous and frustrating situation when our client has instructed us to assist.
The email to our client from the Consular Section of the High Commission of India read: “Please note we directly deal with the Indian nationals and not through the lawyer. You may send your reply to us. Our office has been trying to explain this to you on telephone but you are not taking our calls. If desired, you can talk to us at [phone number].”
It is interesting to note that the High Commission doesn’t recognise Indian nationals in New Zealand being represented by lawyers.
Anna King
Papakura
Thank you
Consequent upon my retirement on 30 June 2015, after approximately 61 years man and boy working in the law – Kensington Haynes and White, JS Longland, Keegan and Alexander, Sharp Tudhope and Lyon O’Neale Arnold – you may cease sending LawTalk to me.
I can’t say that I have read every issue of LawTalk or its predecessors with undiluted interest and enthusiasm, but nevertheless, over the years it has been a useful “trade journal” and I thank you and your forbears for your efforts to keep me informed and “in line”.
Kia ora and farewell, it’s been good to know you!
Michael Batchelor
Tauranga