Legal Aid NSW Policy Online
Document Type: Guideline
Chapter: 11. Forum Test and Reciprocity Agreement


11.1 Introduction

11.1 Introduction

These are the guidelines to the forum test policies and are intended to be read with the forum test policies. The guidelines provide guidance on how certain policies are to be applied by setting out certain requirements which need to be observed when determining applications and administering grants of legal aid.

The Legal Aid Commission of New South Wales is referred to as ‘Legal Aid NSW’ in these guidelines.

11.2 Forum test guide

11.2    The forum test guide

 

The following table provides a summary of the forum test for quick reference:

 

Forum (Jurisdiction)

Where does the applicant for legal aid live?

Which legal aid commission is responsible for funding?

 

NSW

NSW

NSW

NSW

Other State/Territory

NSW

Other State/Territory

Other State/Territory

Other State/Territory

Other State/Territory

NSW

Other State/Territory

NSW changes to other State/Territory

NSW

NSW

NSW

NSW changes to other State/Territory

NSW

NSW changes to other State/Territory

NSW changes to other State/Territory

NSW terminates legal aid and new application made to other State/Territory

Other State/Territory changes to NSW

NSW

NSW

Other State/Territory changes to NSW

Other State/Territory

Other State/Territory

Other State/Territory

Other State/Territory changes to NSW

Other State/Territory

Other State/Territory changes to NSW

Other State/Territory changes to NSW

Other State/Territory terminates legal aid and application made to NSW

Application in NSW for change of venue successful & proceedings transferred to other State/Territory

NSW

NSW responsible for change of venue application and ongoing representation in other State/Territory

Application in NSW for change of venue successful & proceedings transferred to other State/Territory

Other State/Territory

NSW responsible for change of venue application but other State/Territory responsible for ongoing representation

Application in NSW for change of venue unsuccessful & proceedings remain in NSW

Either NSW or Other State/Territory

NSW responsible for change of venue application and ongoing representation in other State/Territory

 

The details of interstate legal aid commissions can be found on the intranet.

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:

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.