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Guidelines
Directions
1. An Introduction to Legal Aid NSW
- 1.1. Legal Aid NSW core policies for granting legal aid
2. Legal Aid Commission Act
- 2.1. Introduction
- 2.2. Part 1 - Preliminary
- 2.3. Part 2 - Constitution and management of Legal Aid Commission
- 2.4. Part 3 - Provision of legal aid
- 2.5. Part 3A - Alternative dispute resolution
- 2.6. Part 4 Finance
- 2.7. Part 5 - Miscellaneous
- 2.8. Schedules
3. Delegation Instrument
- 3.0. Introduction and Preamble
- 3.1. Section 25 - Divulging information or document to a court or tribunal, with the consent of Legal Aid NSW, under section 25(4)(l)
- 3.2. Divulging information or a document (other than as provided by section 25(4)(k) or (l))
- 3.3. Solicitor on Record - section 28
- 3.4. Grant of money for a specified purpose - section 30
- 3.5. Application for legal aid - section 31
- 3.6. Exercising powers under section 33
- 3.6.A Legal Support Officers certifying limited disbursements under sections 33 and 34 on Grants Online
- 3.7. Determining and redetermining a grant of legal aid under section 34
- 3.7.A Approval of expenditure in relation to grants of legal aid
- 3.8. Determining and redetermining the date of a grant of legal aid under section 34A
- 3.9. Authorising emergency grants of legal aid
- 3.10. Implementing the Means Test under section 35
- 3.11. Determining under section 35(1) that the Means Test should not apply
- 3.12. Waiving the requirement for verification of means
- 3.13. Contributions under section 36(1)(a)
- 3.14. Amounts by which a contribution under section 36 can be varied or waived prior to finalisation of a matter
- 3.15. Applications for legal aid by certain persons under section 37
- 3.16. Varying grants of legal aid under section 38
- 3.17 Terminating grants of legal aid under section 38(1)
- 3.18. Approving the number of reading and preparation days in criminal matters
- 3.19. Making certain decisions about costs and moneys under sections 40, 41, 43, 43A, 43B, 44 & 45
- 3.20. Determining under section 46 the liability of a legal assisted person to pay costs
- 3.21. Amounts by which a contribution under section 46 can be waived or reduced
- 3.22. Determining payment of costs awarded against a legally assisted person under section 47
- 3.23. Establishing a selection Committee to appoint private practitioners to panels under section 51
- 3.24 Authority to appoint, or refuse to appoint a legal practitioner to a panel
- 3.25. Authorising private practitioner panel service agreements under section 52
- 3.26. Audits of private legal practitioners under section 52B
- 3.27. Discretion to assign a matter to a non panel private practitioner
- 3.28. Signing and Withdrawing Caveats
- 3.29. Consenting to dealings on the property
- 3.30. Management of debts
- 3.31. Exercising a lien under section 48
- 3.32. Administration of a Trust Account under section 64A
- 3.33. Approving payment of fees and disbursements that exceed Legal Aid NSW fee scales
- 3.34. Authority to private practitioners providing duty services
- 3.35. Negotiated settlement
- Attachment A
4. Criminal Law Matters – when legal aid is available
- 4.1. Introduction
- 4.2. Important conditions which apply to grants of legal aid
- 4.3. Local Court criminal law matters
- 4.4. Apprehended Domestic Violence Orders
- 4.5. Apprehended Personal Violence Order
- 4.6. Appeals from the Local Court
- 4.7. Drug Court matters
- 4.8. Circle Court matters
- 4.9. Preventative detention, control order and prohibited contact order matters
- 4.10. Local Court committal matters
- 4.11. Criminal Indictable matters
- 4.12. Matters under Part 8 of the Crimes (Appeal and Review) Act
- 4.13. Criminal appeals to Court of Criminal Appeal and High Court
- 4.14. Matters under Part 7 of the Crimes (Appeal and Review) Act
- 4.15. Land and Environment Court matters
- 4.16. Children's criminal matters
- 4.17. Prisoners' matters
- 4.18 Extended supervision orders, continuing detention orders, post-conviction orders, control orders and serious crime prevention orders
- 4.19. Matters for which legal aid is not available
5. Family Law Matters – when legal aid is available
- 5.1. Introduction
- 5.2. Important conditions which apply to grants of legal aid
- 5.3. Parenting matters - including independent children's lawyers
- 5.4. Varying or discharging parenting orders –including independent children's lawyers
- 5.5. Recovery, location and Commonwealth information orders
- 5.6. Property settlement matters - after separation
- 5.7. Spousal and de facto maintenance - after separation
- 5.8. Child support and child maintenance matters
- 5.9. Divorce and nullity of marriage
- 5.10. International child abduction
- 5.11. Contravention of parenting orders and enforcement of court orders
- 5.12. Matters after final court orders
- 5.13. Contempt of court
- 5.14. Care and protection matters
- 5.15. Special medical procedures
- 5.16. Adoption matters
- 5.17. Domestic and family violence
6. Civil law matters - when legal aid is available
- 6.1. Introduction
- 6.2. Important conditions that apply to a grant of legal aid
- 6.3. List of civil matters for which legal aid is available
- 6.4. Loss of home - if there is a likelihood the applicant may lose their home
- 6.5. Consumer protection matters
- 6.6. Breach of civil liberties
- 6.7 Extended supervision orders, continuing detention orders, post-conviction orders, control orders and serious crime prevention orders
- 6.8. Discrimination matters
- 6.9 Matters under Working with Children legislation
- 6.10. Matters under the NSW Trustee and Guardian Act 2009 (NSW)
- 6.11. Matters under the Public Health Act
- 6.12. Coronial Inquests into Deaths
- 6.13. Employment law matters
- 6.14. Public interest human rights matters
- 6.15. Mental health matters
- 6.15A. Drug and Alcohol Treatment Act matters
- 6.16. Guardianship matters
- 6.17. Sexual assault communications privilege matters
- 6.18. Migration matters
- 6.19. Commonwealth benefits including pensions, allowances and social security
- 6.20A. Review of decisions under the National Disability Insurance Scheme Act 2013
- 6.22. Proceeds of crime matters
- 6.23. Extradition proceedings
- 6.24 War veterans' matters
- 6.26. Matters for which legal aid is not available
7. Means Test
- 7.1. What is the Means Test?
- 7.2. What matters are means tested?
- 7.3. Whose means are considered when applying the Means Test?
- 7.4. Means Test structure
- 7.5. Income test
- 7.6. Assets test
- 7.7. Applicant's ability to pay legal costs test
- 7.8. Means Test determines initial contribution
- 7.9. Means Test determines contribution to adverse costs
- 7.10. Discretions under the Means Test
- 7.11. Verification of means
- 7.12. Special types of applicants
- 7.13. Contributions on net assessable assets
8. Merit Test
- 8.1. What is a merit test?
- 8.2. Merit Test A – State and some Commonwealth matters
- 8.3. Merit Test B – Commonwealth family law matters
9. Unpaid Contributions Test (Repealed)
- 9.1 The Unpaid Contributions Test (Repealed)
- 9.2 Matters exempted from the Unpaid Contributions Test (Repealed)
10. Availability of Funds Test
- 10.1. Test for availability of funds in State matters
- 10.2. Test for availability of funds in Commonwealth matters
11. Contributions
- 11.1. Initial Contributions
- 11.2. Can contributions be secured upfront?
- 11.3. What is a contribution to legal costs?
- 11.4. Exempted matters - where an applicant is not required to pay an initial contribution
- 11.5. Exempted matters - where an applicant for legal aid owns real property
12. Representation: Allocating Legal Work
- 12.1. Introduction
- 12.2. Civil law matters
- 12.3. Criminal law matters
- 12.4. Family law matters
- 12.5. Duty solicitor matters
13. Legal Aid Review Committee Appeals
- 13.1. Introduction
- 13.2. The appeal process
- 13.3. The types of decisions that can be appealed to a Legal Aid Review Committee
- 13.4. When there is no right to appeal to a Legal Aid Review Committee
- 13.5. How to appeal to a Legal Aid Review Committee
- 13.6. When proceedings can be adjourned pending an appeal to a Legal Aid Review Committee
- 13.7. Assigning a matter following a successful appeal to a Legal Aid Review Committee
- 13.8. Decision of the Legal Aid Review Committee is final
14. Types of Grants
- 14.1. Standard grant of legal aid
- 14.2. Lump sum grants
- 14.3. Emergency grants of aid
- 14.4. Retrospective grant of legal aid
- 14.5. Duty Service grants
- 14.6. Information, legal advice and minor assistance
15. Grants to Community Legal Centres
- 15.1. Introduction
- 15.2. Grants of legal aid to community legal centres
- 15.3. What policies applies to grants of legal aid to CLCs
- 15.4. Paying legal practitioner fees to CLCs
- 15.5. Exceptions to policy that no legal practitioner fees will be paid
- 15.6. Special arrangement with Marrickville, Western Sydney Community Legal Centre, Kingsford and Far West Community Legal Centres.
- 15.7. Funding allocation to Community Legal Centres
- 15.8. Schedule of community organisations providing legal services covered by these policies
16. Terminating Grants of Legal Aid
- 16.1 Terminating grants of legal aid
17. Costs and Fees
- 17.1. Introduction
- 17.2. Fees paid to private legal practitioners under s39 of the Act
- 17.3. Right to have private legal practitioner's costs assessed
- 17.4. Private practitioners prohibited from charging legal aid client
- 17.5. Costs orders
- 17.6. An order for legally aided client to pay costs to Legal Aid NSW
- 17.7. Deferring payment of costs to private legal practitioners
- 17.8. When can Legal Aid NSW refuse to pay a legal practitioner's fees
- 17.9. When a client may be directed to pay costs recovered to Legal Aid NSW
- 17.10. Assignment of costs under s45 of the Act
- 17.11. Costs Legal Aid NSW must pay on behalf of the client under s47 of the Act
18. Forum Test and Reciprocity Test
- 18.1 Forum Test
- 18.2 Reciprocity Agreement between interstate legal aid commissions
- 18.3 Addresses of interstate legal aid commissions
- 18.4 Payment of costs and disbursements of solicitors outside New South Wales
- 18.5 Travelling expenses of the legally assisted person
19. Section 33 Payments (Repealed)
- 19.1 What is a section 33 payment? (Repealed)
- 19.2 How much is the section 33 payment? (Repealed)
- 19.3 Can the section 33 payment be waived or reduced? (Repealed)
- 19.4 What happens if legal aid is granted? (Repealed)
- 19.5 Will the payment be refunded if the applicant is refused legal aid? (Repealed)
- 19.6 What happens if the applicant does not pay the section 33 payment? (Repealed)
- 19.7 Exempted matters - where an applicant is not required to pay a section 33 payment (Repealed)

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5. Family Law Matters – when legal aid is available

5.9. Divorce and nullity of marriage

5.9 Divorce and nullity of marriage

Legal aid is available for a court application relating to divorce or nullity of marriage.

For legal aid to be granted the following tests must be satisfied:

Legal Aid NSW is satisfied that:

It would not be reasonable to expect the applicant for legal aid to conduct the proceedings due to:

the complexity of the matter, and
the personal circumstances of the applicant.

Note: This service will be provided by an in-house legal practitioner unless there are exceptional circumstances (see Representation Policy 12.4.4 Family law matters: Divorce matters)

Date Last Published: 26/09/2018

LawAccess NSW free legal helpline 1300 888 529

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5. Family Law Matters – when legal aid is available

5.9. Divorce and nullity of marriage

5.9 Divorce and nullity of marriage

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