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11. Forum Test and Reciprocity Agreement

11.3 The Reciprocity Agreement-principles of interpretation in Commonwealth family law

11.3.1 Responsibility for assistance

When applying the forum test to an application for legal aid in Commonwealth family law, Legal Aid NSW will only consider funding those matters where the children live in NSW.

For example, an applicant living in NSW seeking time with his children who live with their mother in Victoria should commence proceedings in Victoria and should therefore apply to Victoria Legal Aid for a grant of legal aid. In the instance that the applicant incorrectly commences proceedings in NSW and applies to Legal Aid NSW for a grant of legal aid, his application should be refused on the basis of forum and he should be directed to Victoria Legal Aid.

Refer to Forum Test policy at 18.1.1 (B) and Forum Test guidelines 11.2 and 11.3.4 for details on determining applications for legal aid with respect to change of venue applications.

Where proceedings have commenced, forum in this context means the State or Territory in which the proceedings are listed for hearing, NOT the State or Territory of the managing registry.

For example, if the Melbourne Registry of the Family Court manages the listing of matters for the Albury (NSW) sittings of the Family Court. The forum in this example is NSW not Victoria as the matters will be listed for hearing in NSW.

11.3.2 Transfer of proceedings

Where the forum changes to another State or Territory, the State or Territory where the legally assisted person resides becomes relevant for the first time in that:

  • if the legally assisted person was and remains a resident in the granting State or Territory, eg NSW, then the granting legal aid commission, eg Legal Aid NSW, continues to be responsible for funding the matter. The basis of that on-going assistance is the legally assisted person continuing to live in the granting State or Territory. In other words, for Legal Aid NSW to continue to fund a matter once the proceedings have been transferred to another State/Territory, the legally assisted person must continue to live in NSW.

  • if the assisted person was never a resident of, or ceases to be a resident of the granting State or Territory, then assistance by the granting State or Territory will cease and an application must be made to the legal aid commission in the new forum State or Territory. For example, where proceedings are transferred from NSW to Queensland and the legally assisted person either a) never lived in NSW or b) has moved from NSW to another State orTerritory, Legal Aid NSW will terminate aid on the basis of forum. The basis of this determination is that there is no longer any link, be it forum or residence, with the granting State, eg NSW.

11.3.3 Equivalent jurisdiction

The term 'equivalent jurisdiction' as it appears in the Reciprocity Agreement is meant to be applied in the broad sense of the term. For example, a matter commencing in the family law jurisdiction of a State or Territory Local Court and transferring to the Family Court of another State or Territory is considered to remain in the equivalent 'family law' jurisdiction.

11.3.4 Applications for change of venue

Applications for change of venue should be approved or refused on merit. Where a Court orders a change of venue to another State or Territory, responsibility for the on-going provision of legal aid will be determined in accordance with Forum Test policy at 18.2.2, 18.2.3 & 18.2.4.

See also Forum Test guideline 11.3.2.