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2. Family law matters

2.8. Family law costs management

2.8.1 Definitions in cost management

In this guideline:

a family law or child support matter includes any dispute that involves the same parties about the same or substantially the same issue, if there has not been a material change in circumstances or if any such change would not materially affect existing orders,

costs cap means the costs limitations on a grant of legal aid as set out in this guideline at (ii).

costs of a matter means the total costs paid by Legal Aid NSW in a family law or child support matter in which legal aid has been granted (except interpreter and translator fees, rural travel and accommodation costs), less any contributions collected by Legal Aid NSW from the legally aided person and any costs recovered by Legal Aid NSW.

The costs management principles in this guideline apply to all grants of aid made by Legal Aid NSW for Commonwealth family law matters.


2.8.2 Limit on costs

Under a grant of legal aid, payment of the costs of a matter under the Legal Aid NSW usual fee scales for a party in a family law or child support matter, regardless of whether legal aid in the matter is provided in-house by Legal Aid NSW or by an external service provider, is limited to $15,000.

The limit on costs does not apply to grants of aid to independent children's lawyers.


2.8.3 If costs likely to exceed limit

Legal Aid NSW may increase the costs cap for a particular grant of aid if, in its opinion, undue hardship would otherwise be caused to an applicant for aid or to a child who is the subject of an order for separate representation, taking into account the following:

  • whether the applicant for aid has incurred significant additional costs due to a special circumstance of a kind listed in the Commonwealth priorities
  • whether it would be unreasonable to expect the applicant to adequately represent himself or herself due to a special circumstance of a kind listed in the Commonwealth priorities
  • whether the costs of the applicant have increased significantly through no fault of the applicant
  • the number and complexity of issues in dispute
  • the likelihood of risk to a child's safety or welfare, or

Before making a decision under this guideline Legal Aid NSW must have considered whether it is possible to contain costs by:

  • providing legal assistance for the matter in-house, or
  • considering whether alternative means of funding are appropriate, including negotiating a fee package that is not in accordance with the Legal Aid NSW usual fee scales with an external services provider.

Increasing the cost cap

Any decision made by Legal Aid NSW to increase the costs cap for a particular grant of aid should be subject to strict limits on costs, and the nature and extent of the additional cost should be determined by Legal Aid NSW or agreed between Legal Aid NSW and the external services provider having regard to the following factors:

  • advice from the court and the parties about the estimated length of time required for the hearing of the matter
  • the number and nature of witnesses who must be called or cross-examined, and
  • whether the other parties to the matter have legal representation.

2.8.4 Costs in recovery order and location order matters

Legal Aid NSW should treat proceedings for a recovery, location and/or Commonwealth information order relating to the location and/or recovery of a child as a new matter for the purposes of the family law costs management methodology.

A grant of aid under this policy:

  • should usually be limited to $2,000, and
  • should only be made on the condition that the applicant for aid seeks a costs order against the respondent to the court application, unless that party is also in receipt of a grant of legal aid.


2.8.5 Costs recovery in parentage testing cases

A client receiving a grant of legal aid for parentage testing must seek an order from the court for the costs of the testing, unless the other party to the proceedings is also receiving legal aid.


2.8.6 Costs capping and recovery in enforcement proceedings

A grant of aid under for enforcement proceedings:

  • should usually be limited to $2,000, and
  • should only be made on the condition that the applicant seeks a costs order against the respondent to the court application, unless that party is also in receipt of a grant of legal aid


2.8.7 Costs recovery in property settlement matters

If the applicant is represented in a property dispute matter (In combination with another family law matter) Legal Aid NSW will seek full recovery of costs as determined under s46 of the Act. In the event the applicant retains the real property the debt is to be secured by means of a charge over the property and a caveat lodged.


2.8.8 Methodology

Legal Aid NSW will manage the costs of a matter under a grant of legal aid made under Commonwealth guidelines in accordance with the family law costs management methodology.


2.8.9 Costs in appeal matters

Legal Aid NSW must take the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) into account before granting aid for an appeal.

Legal Aid NSW should treat an appeal as a new matter for the purposes of the family law costs management methodology.


Date Last Published: 30/01/2017