Legal Aid NSW Policy Online
Document Type: Guideline
Chapter:2. Family law matters


2.1. Introduction

These are the guidelines to the family law policies and are intended to be read with the family law policies. The guidelines are intended to provide guidance to the reader on how the family law policies are to be applied and set out certain requirements which need to be observed when determining and administering grants of legal aid.

 



Date Last Published: 01/09/2010

2.2. Urgent matters

2.2.1 Priority for urgent matters

Although each of the family law matters are 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:


2.2.2 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:


Date Last Published: 30/01/2017

2.3. Family Dispute Resolution (FDR) Service

2.3.1 Consideration of resolution processes other than litigation

In a Commonwealth family law matter Legal Aid NSW must consider granting legal aid for an applicant to participate in FDR services before it considers granting aid for litigation services at any stage in the proceedings.

2.3.2 Appropriateness of participation in FDR services

Legal Aid NSW will only grant legal aid 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:


Date Last Published: 30/01/2017

2.4. Independent children's lawyer and child representatives

2.4.1 Applying this Guideline

This Guideline applies to independent children's lawyers in matters under the Family Law Act 1975 (Cth) and to child representatives in matters under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The role of the independent children's lawyer is set out in s68LA of the Family Law Act 1975 (Cth).

See also: The Family Court Guidelines for Child Representatives; The Law Society of New South Wales Representation Principles for Children's Lawyers.


2.4.2 Special medical procedures –independent children's lawyer

Legal Aid NSW should grant legal aid for the separate representation of a child in any court proceedings relating to special medical procedures.


2.4.3 Costs in relation to independent children's lawyers

If Legal Aid NSW makes a grant of legal aid for an independent children's lawyer, Legal Aid NSW must give consideration as to the ability of the parties to the proceedings to:

Legal Aid NSW may determine an amount to be paid by each party taking into account

Taking into account that the parties are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report (Family Law Rules, R15.47), where a party is not legally aided, they will be required to contribute to an equal portion of the cost of the single expert, unless there are exceptional circumstances.

This guideline does not apply to proceedings relating to special medical procedures involving a child in which a grant of aid for independent representation of the child has been made, regardless of whether or not any of the parties to the proceedings are receiving legal aid.

Costs orders

If a party refuses or fails to pay the amount required by Legal Aid NSW under this guideline, legal aid for the independent children's lawyer should continue to be provided on the condition that the independent children's lawyer seeks an order for costs against that party at an appropriate time in the court proceedings.


2.4.4 When there is no utility in continuing to act as ICL

If legal aid is granted, the independent children's lawyer or child representative must advise Legal Aid NSW if the utility of the order for the independent children's lawyer or child representative has expired.

Aid will be withdrawn if Legal Aid NSW is no longer satisfied that the independent children's lawyer or child representative will make a difference to the outcome of the proceedings or to the welfare of the child.

·
Date Last Published: 30/01/2017
Back to top

2.5. Material change in circumstances

2.5.1 Examples of change

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


2.5.2 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.




Date Last Published: 01/09/2010

2.6. Child support or maintenance and spouse maintenance matters

2.6 Child support or maintenance and spouse maintenance matters

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 Court or the Family Court.




Date Last Published: 01/09/2010

2.7. Allegations of domestic violence

2.7 Allegations of domestic violence

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, 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 for domestic violence matters.

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.


Date Last Published: 01/09/2010

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:

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

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:

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:


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:


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

2.9. Briefing counsel


2.9.1 Local Court proceedings

Legal Aid NSW will not authorise the briefing of counsel in a local court except in particularly complex or exceptional cases.


2.9.2 Interim hearings

Legal Aid NSW will not authorise the briefing of counsel for interim hearings in the Family Court or the Federal Circuit Court , except in particularly complex or exceptional cases.


2.9.3 Child representative or independent children's lawyer briefing counsel

Legal Aid NSW will only authorise the briefing of counsel by a child representative or an independent children's lawyer for final hearings where:



Date Last Published: 01/09/2010

2.11. Disputes relating to preservation of property

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.




Date Last Published: 01/09/2010

2.12. Significant disadvantage

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:




Date Last Published: 01/09/2010

2.13. Care and Protection matters

2.13.1 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, it is relevant to take into account that there is no other person involved in the proceedings who:

2.13.2 Applying care and protection policy 5.14.9

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.


Date Last Published: 30/01/2017

2.14. Single expert reports

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.


2.14.1 When requests for expert reports will be considered

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


2.14.2 Obtaining approval for an expert report

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


2.14.3 Supporting information required when requesting a report

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


2.14.4 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.


2.14.5 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:


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.

Date Last Published: 30/01/2017

2.15. Special circumstances

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




Date Last Published: 01/09/2010

2.16. Special disadvantage

Special disadvantage is defined in Legal Aid NSW family law policy as:




Date Last Published: 01/09/2010

2.17. Statutory and administrative financial assistance schemes by the Commonwealth Attorney-General - Administered by the Legal Aid Branch

2.17.1 Financial assistance direct from Commonwealth Attorney General

Financial assistance is available direct from the Commonwealth Attorney-General in limited categories of proceedings. This assistance is administered by the Legal Assistance Branch and is provided under a number of statutory and administrative (non-statutory) schemes.


2.17.2 Statutory Schemes providing financial assistance direct from Attorney-General

There are a number of Statutory Schemes through which the Commonwealth Government provides financial assistance to people requiring help to address matters involving Commonwealth law, or in circumstances that give rise to a special Commonwealth interest and legal aid is not available.

Information about the schemes can be viewed on the Federal Attorney-General's website: https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/home.aspx


2.17.3 Native Title Funding Schemes available through the Commonwealth Attorney-General

Financial assistance may be provided to a party or a person who intends to become a party to an enquiry, mediation or proceedings relating to native title, including an Indigenous land-use agreement or an agreement about certain rights of access for traditional purposes, or who are in dispute with another person about such rights of access.

For information about the Scheme see the Federal Attorney General website: https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/home.aspx


2.17.4 If legal aid is available from Legal Aid NSW apply first to Legal Aid NSW

In considering whether to make a grant of aid Legal Aid NSW may take into account whether funding is available from another Commonwealth scheme such as the Commonwealth Public Interest and Test Cases Scheme. Cases seeking special funding for a public interest or test case under a law of the Commonwealth must be referred to the Legal Assistance Branch.

Where Legal Aid NSW refuses to grant legal aid and/or a Legal Aid Review Committee dismisses any appeal against such a refusal, the application for legal aid is to be referred by Legal Aid NSW to the Legal Assistance Branch for consideration.

For information on public interest and test cases see The Commonwealth Guidelines for Legal Financial Assistance at page 14.

2.17.5 Applications to the Legal Assistance Branch and criteria for determination of applications

Address applications under these schemes to:

Assistant Secretary
Financial Assistance Section
Legal Assistance Branch
Attorney-General’s Department
3–5 National Circuit
BARTON ACT 2606

Ph: +61 2 6141 4770 or 1800 117 995

The criteria for determining applications under these schemes vary considerably. For the guidelines appropriate to each scheme and information regarding costs contact the Legal Assistance Branch.

See Federal Attorney General's website: https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/Commonwealthlegalfinancialassistance/Pages/home.aspx


2.17.6 Time limits

Applicants who have applied to Legal Aid NSW are to be advised to contact the Legal Aid Branch as soon as possible because time limits may apply.


Date Last Published: 08/11/2018
Back to top

2.18. Substantial issue

2.18 Substantial issue

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:

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.

2.19. Significant financial benefit

What is a Significant Financial Benefit?

When assessing what amounts to a significant financial benefit under the exceptional circumstances tests in Family Law Policy 5.6: settlement after separation, the following rules apply:

Note: Total amount recovered does not include any deferred benefit, for example, superannuation.

Date last published: 9/7/2019