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3.5 Child support and maintenance

ERA is available for mediation in adult child maintenance matters where the applicant is:

  • the parent or carer of a child over the age of 18 who needs financial support because of a disability, or
  • a child over the age of 18 who needs financial support because of a disability, and
  • if the applicant is the party seeking maintenance, the other person has the capacity to pay.

To be eligible for ERA the applicant must satisfy the following tests:

ERA is available for mediation for spousal and de facto maintenance where the applicant:

  • knows the whereabouts of the other person, and
  • if the applicant is the party seeking maintenance, the other person has the capacity to pay.

To be eligible for ERA the applicant must satisfy the following tests:

3.5.3.1 - Child support

Legal aid is available to apply for orders and to respond to applications under the Child Support (Assessment) Act 1989 (Cth) or the Child Support (Registration and Collection) Act 1988 (Cth).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test, and
  • it is appropriate to make an application to a court rather than an administrative application, for example where leave of the court is required to depart from a child support assessment that is more than 18 months old.

The grant of legal aid will normally be limited to proceedings in the Local Court or the Federal Circuit Court, unless such proceedings are unavailable.

See the Legal Aid NSW Child Support Service for information about the services available.

3.5.3.2 - Child maintenance

Legal aid is available for court applications under the Family Law Act 1975 (Cth) for child maintenance where an application for an administrative assessment of child support cannot properly be made.

To be eligible for legal aid the applicant must satisfy:

Where the applicant for legal aid is the child, Legal Aid NSW must also be satisfied that the child is the most appropriate person to seek the order.

Where the application relates to adult child maintenance, the applicant must have a certificate issued by the Legal Aid NSW Family Dispute Resolution Unit under s60I of the Family Law Act 1975 (Cth) in relation to the dispute.

Note: All early intervention mediation for family law disputes is administered as an Early Resolution Assistance (ERA) service type and facilitated by the Legal Aid NSW Family Dispute Resolution Unit. For eligibility policies for mediation in parenting matters see: Family ERA policy 3.2.1.

3.5.3.3 - Appeals to the Administrative Appeals Tribunal (first review) in relation to child support and maintenance decisions

Legal aid is available for appeals to the Administrative Appeals Tribunal (AAT) under child support legislation in relation to a first review of a child support or child maintenance decision by the Child Support Agency.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test, and
  • the applicant for legal aid is unable to adequately represent themselves before the AAT.

In determining whether the applicant is unable to adequately represent themselves before the AAT, Legal Aid NSW will take into account whether the applicant is experiencing, or at risk of, domestic or family violence.

3.5.3.4 - Appeals to the Administrative Appeals Tribunal (second review) in relation to child support and maintenance decisions

Legal aid is available for appeals to the Administrative Appeals Tribunal (AAT) under child support legislation in relation to a second review of a decision of the Administrative Appeals Tribunal (where a second review is permissible under the Administrative Appeals Act).

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test, and
  • the applicant for legal aid is unable to adequately represent themselves before the AAT.

In determining whether the applicant is unable to adequately represent themselves before the AAT, Legal Aid NSW will take into account whether the applicant is experiencing, or at risk of, domestic or family violence.

3.5.3.5 - Appeals to the court in relation to child support and maintenance decisions

Legal aid is available for appeals on a question of law from a decision of the Administrative Appeals Tribunal.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test, and
  • the applicant  for legal aid is unable to adequately represent themselves before the court.
     
3.5.3.6 - Arrears of spousal or child maintenance or child support

Legal aid is available for court proceedings for payment of arrears of child maintenance or child support.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test,
  • the applicant cannot adequately prepare the court application or present the case to the court without legal assistance, and
  • the appropriate legal assistance cannot be obtained from another source, or the applicant for aid is also seeking the resolution of another family law matter by the court.
3.5.3.7 - United Nations Convention on Recovery Abroad of Maintenance (UNCRAM) Delegation

Legal Aid is available in relation to the recovery of child support or maintenance where an application via UNCRAM is the only option.

The means and merit tests are not applied.

3.5.3.8 - Child Support Parentage matters

Legal aid is available for a court application to seek or oppose a declaration in relation to parentage under the Child Support (Assessment) Act 1989 (Cth) (the Act) that is either:

  • a declaration under s106A of the Act that a person should be assessed in relation to the costs of a child because they are a parent of the child, or
  • a declaration under s107 of the Act that a person should not have been assessed in relation to the costs of a child because they are not a parent of the child.

To be eligible for legal aid the applicant must satisfy:

Where the application is for a declaration under s106A of the Child Support (Assessment) Act 1989 (Cth), Legal Aid NSW must  be satisfied that:

  • the Legal Aid NSW Child Support Service or some other appropriate service for example a community legal centre cannot assist, and
  • either party denies that the other party is the child's parent, and
  • the other party's whereabouts are known, or there are reasonable grounds for obtaining an order for substituted service on that party, and
  • there is good reason to believe that the other party has the capacity to pay child support for the child.

Where the application is for a declaration under s107 of the Child Support (Assessment) Act 1989 (Cth), Legal Aid NSW must  be satisfied that:

  • the Legal Aid NSW Child Support Service or some other appropriate service for example a community legal centre cannot assist, and
  • either party denies that the other party is the child's parent, and
  • the applicant provides adequate reasons to oppose a finding of parentage.
3.5.3.9 - DNA parentage testing

Legal aid is available for DNA parentage testing where the applicant has been granted legal aid for:

  • A child support parentage matter (see Family law policy 3.5.3.8 above), or
  • An application for parenting orders in relation to who the child lives with and spends time with (see Family law policies 3.2 Parenting) and
  • The issue of parentage can only be resolved through DNA parentage testing.

See Family Fee guideline 2.5 Cost Management on cost recovery in parentage matters.

3.5.4.1 Spousal or de facto maintenance - applicants

Legal aid is available to make a court application to obtain or increase spousal or de facto maintenance.

Unless the matter is urgent, the applicant must have a certificate issued by the Legal Aid NSW Family Dispute Resolution Unit under s60I of the Family Law Act 1975 (Cth) in relation to the dispute.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test,
  • the other party's whereabouts are known, or there are reasonable grounds for obtaining substituted service on that party, and
  • there is good reason to believe that the other party has the capacity to make or increase maintenance payments or is likely to have that capacity in the future.

Note: All early intervention mediation for family law disputes is administered as an Early Resolution Assistance (ERA) service type and facilitated by the Legal Aid NSW Family Dispute Resolution Unit. For eligibility policies for mediation in parenting matters see: Family ERA policy 3.2.1.

3.5.4.2 - Spousal or de facto maintenance - defendants

Legal aid is available to defend a court application to obtain or increase spousal or de facto maintenance.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test,
  • it is unlikely that the court would make an order for the amount sought by the other party, and
  • the applicant cannot adequately defend the court application without legal representation.
3.5.4.3 - Reducing spousal or de facto maintenance - applicants and defendants

Legal aid is available to make, or defend, a court application to reduce spousal or de facto maintenance.

Unless the matter is urgent, the applicant must have a certificate issued by the Legal Aid NSW Family Dispute Resolution Unit under s60I of the Family Law Act 1975 (Cth) in relation to the dispute.

To be eligible for legal aid the applicant must satisfy:

  • the Means Test,
  • the Merit Test, and
  • the applicant cannot adequately make or defend the court application without legal representation.

Note: All early intervention mediation for family law disputes is administered as an Early Resolution Assistance (ERA) service type and facilitated by the Legal Aid NSW Family Dispute Resolution Unit. For eligibility policies for mediation in parenting matters see: Family ERA policy 3.2.1.