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

2.2.1 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:

• 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.

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:

• 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).

Date Last Published: 30/01/2017

2.3.1 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.

See: Policy Online: ERA for early intervention mediation

2.3.2 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 guideline 2.2.1
• 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).

Date Last Published: 10/01/2022

2.4.1. 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 the Legal Aid NSW Guideline 2.4.1.

2.4.2 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 Law Policy 5.15.1 Special Medical Procedure,
• 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.

Date Last Published: 09/01/2023

2.5.1 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.

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.

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 and Family Court of Australia.


Date Last Published: 09/02/2022

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

2.8.1 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

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:

• the matter raises complex issues of fact or law, or
• there are other exceptional circumstances which warrant the briefing of counsel.

Date Last Published: 01/09/2010

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.

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 s4 of the Family Law Act 1975.

Date Last Published: 01/09/2010

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:

• has a significant relationship with the child or young person; and
• is legally represented in the proceedings

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

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:

• 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.

2.14.2 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.

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:

• a summary of any allegations or issues identified in guideline 2.15.2;
• 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.

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:

• 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.

Date Last Published: 30/01/2017

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.

Date Last Published: 01/09/2010

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

• a child; or
• a person having substantial difficulty in dealing with the legal system by reason of a:
• psychiatric condition
• developmental disability
• intellectual impairment.

Date Last Published: 01/09/2010

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
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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:

• 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 Law Guideline 2.19.

Date last published: 31/08/2020

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 favorable 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 Law Guideline 2.18.

Date last published: 07/09/2020

Legal aid is generally not available to fund court-ordered drug testing in family law matters.

Legal Aid NSW will only consider funding for court-ordered drug tests where:

• the subject of the drug test order is a legally aided party in a parenting matter, and
• the report will materially affect the outcome of the matter and is the only risk factor in consideration, and
• the report is necessary to finalise the matter, and
• where an Independent Children’s Lawyer is involved, they support the need for a one-off drug test.

Date last published: 21/11/2022