Family Law Guidelines

If there are allegations of domestic violence in relation to an applicant or a child, and the legal aid applicant wants to apply to the court for an Apprehended Domestic Violence Order (ADVO), in deciding whether to grant aid, and the nature and extent of any such aid, Legal Aid NSW should consider the policies used for determining grants of aid: see ADVO policy 5.1. 

Note: This guideline is not intended to pick up matters that are properly classed as State matters. The intention is to ensure that domestic violence matters under Commonwealth laws are treated consistently with domestic violence matters under state laws.

When determining an application for legal aid where the applicant is in custody (in prison or detention), the determining officer may take into account (but is not limited to):

• If the applicant for legal aid is the respondent in parenting or property proceedings commenced by the other party (Note: this is not intended to preclude where an applicant is the initiating party).
• The relevant personal circumstances of the applicant (Note: this may include where the applicant is an Aboriginal or Torres Strait Islander person or who may have a disability or mental health issues).
• There is a benefit to the child or young person that is the subject of the parenting proceedings that might be gained by the applicant receiving legal aid (Note: this may include if the child is Aboriginal or Torres Strait Islander).
• The applicant has reasonable prospects of achieving a better outcome/more favourable orders.

Note: If the applicant for legal aid is in custody, this will be taken into account when determining whether there is a substantial issue in dispute: see Family guideline 3.13.

3.3.1 - Determining whether there is a benefit to the child or young person

When considering whether there is a benefit to the child or young person that might be gained by the applicant receiving legal aid, the following factors must be taken into account:

• if the child or young person subject to the application is Aboriginal and/or Torres Strait Islander, whether the applicant is connected to the subject child or young person through family or kinship systems, including but not limited to shared cultural, tribal and community connections, and

• for all other applicants, that there is no other person involved in the proceedings who:
  • has a significant relationship with the child or young person; and
  • is legally represented in the proceedings. 

3.3.2 - Applying care and protection policy 3.1.2.3

Legal Aid NSW will be satisfied that this aspect of the policy is met where the legal practitioner representing the legally assisted person certifies that their client has reasonable prospects of achieving a better outcome than that which has been proposed in the Care Plan.

Child support or maintenance matters and spouse maintenance must be conducted in the Local Court, unless there are exceptional circumstances.

Example of exceptional circumstances

An example might be that the parties have other family law matters which are being currently conducted in the Federal Circuit and Family Court of Australia.

Where the dispute relates to the preservation of family property, and there is a risk that the property will be disposed of, the grant of aid will only be made for the injunctive relief proceedings.

If a grant of aid is required for further property proceedings, a separate application for legal aid will need to be made.

3.6.1 - Consideration of resolution processes other than litigation

In a Commonwealth family law matter Legal Aid NSW must consider approving Early Resolution Assistance (ERA) for an applicant to participate in FDR services before it considers granting aid for litigation services at any stage in the proceedings.

3.6.2 - Appropriateness of participation in FDR services

Legal Aid NSW will only approve ERA requiring an applicant to participate in FDR services if it considers that this is appropriate in the particular case. Participation in FDR services is usually not appropriate where:

• the matter is considered to be an urgent matter under Family guideline 3.14,
• for family law matters relating to a child of the parties, there are any current reported allegations of child abuse, or investigations or court proceedings relating to child abuse are currently taking place,
• a party's safety or ability to negotiate effectively is jeopardised by behaviour of the other party such as violence, intimidation, control or coercion, or a history of such behaviour, or
• one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason).

3.7.1 - Independent Children’s Lawyer required to inform Legal Aid NSW where there is no utility in continuing to act

The Independent Children’s Lawyer (ICL) must advise Legal Aid NSW where there is no utility in continuing to act in court proceedings.

Final hearing
Where the ICL appeared in the initial stages of proceedings and seeks funding for the final hearing, Legal Aid NSW must be satisfied there is a substantial issue in dispute that requires the continued input of the ICL.

Before funding is provided for a final hearing, the ICL is required to certify that ICL input is required for the final hearing.

Note: Where the ICL submits an extension request for the final hearing, they must certify that funding for final hearing satisfies this guideline.

3.7.2 - Independent Children’s Lawyer is required to seek costs

The Independent Children’s Lawyer is required, where appropriate, to seek a costs order from the court for the cost and expense of providing the Independent Children’s Lawyer and the expert report, unless:

• the ICL was funded under Family policy 3.9 Special Medical Procedures,
• all the other parties are legally aided at the time the costs order is sought, or
• the ICL has approval from Legal Aid NSW not to seek a costs order.

3.8.1 - Examples of change

Examples of situations in which there has been a material change in the applicant's circumstances include where:

• there is a likelihood of the applicant or a child being subjected to violence or physical or mental harm,
• a child has been removed from an applicant when the child was living with the applicant before the removal or where there is a risk that a child may be removed,
• where a child has been removed from the jurisdiction of the Court or there is a risk that a child may be removed, or
• where there is a need for an applicant who the child lives with to move permanently overseas, interstate or elsewhere with a child, if consent is unreasonably refused by another person.

3.8.2 - Material change in circumstances caused by legal aid applicant

If the material change in circumstances referred to above was caused by the legal aid applicant, Legal Aid NSW must consider the circumstances surrounding that change in determining whether it is appropriate to grant legal aid to the applicant.

In making a decision about whether the applicant or child is at ‘significant disadvantage', Legal Aid NSW may take into account any one or more of the following criteria:

• there are allegations of abuse or family violence,
• the applicant has an intellectual, psychiatric, physical disability or a serious medical problem – the applicant may be asked to provide Legal Aid with a letter from the applicant's General Practitioner confirming the disability or serious medical problem,
• the applicant has been denied any relationship with his or her child/children for a period of at least 3 months but not exceeding 3 years,
• there are allegations that the child/children are at risk of harm,
• the applicant has a language or literacy problem which impacts upon his/her capacity to self represent, or
• the child/children are Aboriginal or Torres Strait Islander as defined under s 4 of the Family Law Act 1975 (Cth).

If any party to the proceedings is legally aided, the Independent Children's Lawyer must obtain prior approval from Legal Aid NSW before seeking a Single Expert Report in accordance with the following guidelines.

3.10.1 - When requests for expert reports will be considered

Requests for expert reports will be considered at the conclusion of the following court events:

• in Family Court matters, after the first Less Adversarial Trial (LAT) hearing event;
• in Family Court Magellan matters, upon release of the Magellan Report;
• in Federal Circuit Court matters, upon a matter being set down for final hearing;
• in Family Court matters at an interim stage but only if Legal Aid NSW is satisfied there are exceptional circumstances; or
• upon a recommendation being made by a Family Consultant or other court appointed expert that a report prepared by a psychiatrist or other appropriately qualified expert is required.

3.10.2 - Obtaining approval for an expert report

Approval for the obtaining of an expert report will be considered in matters where:

• there are allegations of child abuse;
• there are issues of significant psychiatric or psychological illness or personality disorder;
• there is a specific issue that needs to be considered by an appropriately qualified expert, for example substance abuse or cultural factors that are beyond the scope or expertise of a court appointed Family Consultant; or
• the Director Family Law or the Director Grants is satisfied that exceptional circumstances exist.

3.10.3 - Supporting information required when requesting a report

Any application for the funding of an expert report will need to be supported by:

• a summary of any allegations or issues identified in Family guideline 3.11 Special Circumstances;
• an outline of all steps taken to ensure evidence of the matters proposed to be covered in the expert report have already been taken, for example, issuing subpoenas, obtaining authorities to speak to treating medical personnel such as psychologists obtained and acted upon; and
• confirmation of an available expert who is prepared to undertake the report at the Legal Aid fee rate.

3.10.4 - Approval for updated expert reports

Requests for updates of expert reports will only be approved when it can be demonstrated that there has been a significant change in circumstances since the report was released.

3.10.5 - Costs for expert reports where a party is not legally aided

If any party to the proceedings is not legally aided, the independent children's lawyer must:

• seek an order from the Court that the parties to the proceedings pay the costs of obtaining the Single Expert's report, and ensure that the parties pay the costs before ordering the report.

Note: In most circumstances, Legal Aid NSW is only able to fund the share of a party who is legally aided. Consideration will be given to funding a non legally aided party's share if exceptional circumstances exist. In determining whether exceptional circumstances exist, Legal Aid NSW will consider the financial capacity of the party to pay for his/her share of the report and any recommendations made by judicial officers.

Legal Aid NSW will be satisfied that there are special circumstances where:

• the applicant has a language or literacy problem,
• the applicant has an intellectual, psychiatric or physical disability,
• it is difficult for the applicant to obtain legal assistance because the applicant lives in a remote location,
• in relation to family law matters – there is, or is a likelihood of, family or domestic violence, especially if an allegation has been made by a party to the matter,
• the applicant is a child, or
• the applicant is a person appointed by a court order under sections 15YF or 15YG of the Crimes Act 1914 (Cth) to ask questions of a child complainant or child witness.

An applicant is 'at special disadvantage' if:

• the applicant is a child or acting on behalf of a child, or
• the applicant is a person who has substantial difficulty in dealing with the legal system by reason of a substantial:

        o   psychiatric condition,

        o   developmental disability,

        o   intellectual disability, or

        o   physical disability.

Unless the applicant is experiencing or at risk of domestic or family violence, the following examples would not generally be considered to be a substantial issue in dispute:

• Where there is no active dispute, for example, where the other party is not seeking to spend time with the child.
• Where the dispute concerns minor issues such as children’s clothing, routine or activities.
• Disputes about minor increments of time, for example, an increase/decrease in nights per fortnight or an earlier/later drop-off time.
• Disputes about the changeover location and associated travel costs.
• Disputes about the choice of child’s school.
• Method by which the parties are to communicate with each other or the child.
• Change of the child’s name.
• Obtaining orders to enable holiday travel arrangements.

Note: If there is a risk of harm to the child or children, this will be taken into account when determining whether there is a substantial issue in dispute.

Note: If the applicant for legal aid is in custody (prison or detention), this will be taken into account when determining whether there is a substantial issue in dispute. This guideline is to be read in conjunction with Family guideline 3.2.

3.14.1 - Priority for urgent matters

Although each of the family law matters is generally of equal priority, in deciding whether to grant aid for a family law matter in relation to an application to the court for an interim order or injunction, Legal Aid NSW must give the highest priority to urgent matters.

Urgent matters are matters in which Legal Aid NSW determines that:

• a child's safety or welfare is at risk,
• the applicant's safety is at risk,
• there is an immediate risk of removal of a child from Australia or to a remote geographic region within Australia,
• there is a need to preserve matrimonial property, or
• other exceptional circumstances exist that require urgent legal assistance.

3.14.2 - Non urgent matters

Prioritising non-urgent matters

In prioritising funds available for non-urgent matters and deciding whether a grant of legal aid is to be made and, if so, the nature and extent of that grant, Legal Aid NSW may take into consideration whether:

• there is, or is a likelihood of, domestic violence, especially if an allegation of domestic violence has been made;
• concerns as to the safety, welfare and psychological wellbeing of a child have been identified and require further investigation;
• the applicant has a language or literacy problem;
• the applicant has an intellectual, psychiatric or physical disability;
• it is difficult for the applicant to obtain legal assistance because the applicant lives in a remote area;
• the child/children are Aboriginal or Torres Strait Islander as defined under section 4 of the Family Law Act 1975 (Cth).

Complexity

The following types of cases may be considered complex and warrant legal aid:

• Where language barriers which may affect the applicant’s ability to properly deal with the court system
• Where there are difficulties in proving the marriage
• Where there is a need to obtain recognition of overseas dissolution
• Where there is a need for substituted service
• Where there is a need to dispense with service of the application, or
• Where the applicant is subject to a forced marriage.

Applicant’s personal circumstances

Legal Aid NSW will be satisfied that the applicant is disadvantaged due to their personal circumstances where the applicant:

• is experiencing, or at risk of, domestic or family violence, or
• has an ongoing health condition or disability, or
• is currently experiencing significant financial hardship.

When determining an application for legal aid or Early Resolution Assistance for property settlement matters involving overseas property, Legal Aid NSW will take into account:

• the net value of the pool of assets that is in Australia, and
• whether there is a dispute about the value or ownership of the overseas property.

Legal Aid NSW will only fund property settlement matters where Legal Aid NSW is satisfied that:

• at least ninety (90) percent of the property is in Australia, and
  
• there is no dispute over the value or ownership of the overseas property.

Note: ‘Overseas property’ includes any real property, assets, bank accounts and superannuation/deferred benefit funds that are held outside Australia.