Policies
5. Family Law Matters – when legal aid is available
5.8. Child support and child maintenance matters
5.8.1 Child maintenance
Legal aid is available for court applications under the Family Law Act 1975 (Cth) for child maintenance where an application for an administrative assessment of child support cannot properly be made.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test
Where the applicant for legal aid is the child, Legal Aid NSW must also be satisfied that the child is the most appropriate person to seek the order.
Where the application relates to adult child maintenance, the applicant must have a certificate issued by the Legal Aid NSW Family Dispute Resolution Unit under s60I of the Family Law Act 1975 (Cth) in relation to the dispute.
Note: All early intervention mediation for family law disputes is administered as an Early Resolution Assistance (ERA) service type and facilitated by the Legal Aid NSW Family Dispute Resolution Unit. For eligibility policies for mediation in parenting matters see: ERA early intervention mediation 1.4: Adult child maintenance
5.8.2 Child support
Legal aid is available to apply for orders and to respond to applications under the Child Support (Assessment) Act 1989 (Cth) or the Child Support (Registration and Collection) Act 1988 (Cth)
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- it is appropriate to make an application to a court rather than an administrative application, for example where leave of the court is required to depart from a child support assessment that is more than 18 months old.
The grant of legal aid will normally be limited to proceedings in the Local Court or the Federal Circuit Court, unless such proceedings are unavailable.
See the Legal Aid NSW Child Support Service for information about the services available.
5.8.3 Appeals to the Administrative Appeals Tribunal (first review) in relation to child support and maintenance decisions
Legal aid is available for appeals to the Administrative Appeals Tribunal (AAT) under child support legislation in relation to:
- a first review of a child support or child maintenance decision by the Child Support Agency.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- the applicant for legal aid is unable to adequately represent themselves before the AAT.
In determining whether the applicant is unable to adequately represent themselves before the AAT, Legal Aid NSW will take into account whether the applicant is experiencing, or at risk of, domestic or family violence.
5.8.4 Appeals to the Administrative Appeals Tribunal (second review) in relation to child support and maintenance decisions
Legal aid is available for appeals to the Administrative Appeals Tribunal (AAT) under child support legislation in relation to:
- a second review of a decision of the Administrative Appeals Tribunal (where a second review is permissible under the Administrative Appeals Act)
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- the applicant for legal aid is unable to adequately represent themselves before the AAT.
In determining whether the applicant is unable to adequately represent themselves before the AAT, Legal Aid NSW will take into account whether the applicant is experiencing, or at risk of, domestic or family violence.
5.8.5 Appeals to the court in relation to child support and maintenance decisions
Legal aid is available for appeals on a question of law from a decision of the Administrative Appeals Tribunal.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- the applicant for legal aid is unable to adequately represent themselves before the court.
5.8.6 Arrears of spousal or child maintenance or child support
Legal aid is available for court proceedings for payment of arrears of child maintenance or child support.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test
- the applicant cannot adequately prepare the court application or present the case to the court without legal assistance, and
- the appropriate legal assistance cannot be obtained from another source, or the applicant for aid is also seeking the resolution of another family law matter by the court.
5.8.7 United Nations Convention on Recovery Abroad of Maintenance (UNCRAM) Delegation
Legal Aid is available in relation to the recovery of child support or maintenance where an application via UNCRAM is the only option.
The means and merit tests are not applied.
5.8.8 Child Support Parentage matters
Legal aid is available for a court applications to seek or oppose a declaration in relation to parentage under the Child Support (Assessment) Act 1989 (Cth) (the Act) that is either:
- a declaration under s106A of the Act that a person should be assessed in relation to the costs of a child because they are a parent of the child, or
- a declaration under s107 of the Act that a person should not have been assessed in relation to the costs of a child because they are not a parent of the child.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
Where the application is for a declaration under s106A of the Child Support (Assessment) Act 1989 (Cth), Legal Aid NSW must be satisfied that:
- the Legal Aid NSW Child Support Service or some other appropriate service for example a community legal centre cannot assist, and
- either party denies that the other party is the child's parent, and
- the other party's whereabouts are known, or there are reasonable grounds for obtaining an order for substituted service on that party, and
- there is good reason to believe that the other party has the capacity to pay child support for the child.
Where the application is for a declaration under s107 of the Child Support (Assessment) Act 1989 (Cth), Legal Aid NSW must be satisfied that:
- the Legal Aid NSW Child Support Service or some other appropriate service for example a community legal centre cannot assist, and
- either party denies that the other party is the child's parent, and
- the applicant provides adequate reasons to oppose a finding of parentage.
5.8.9 DNA parentage testing
Legal aid is available for DNA parentage testing where the applicant has been granted legal aid for:
- A child support parentage matter (See 5.8.8 above), or
- An application for parenting orders in relation to who the child lives with and spends time with (See 5.3) and
- The issue of parentage can only be resolved through DNA parentage testing.
See Family Law Guideline 2.8 on cost recovery in parentage matters.
Date Last Published: 05/12/2022