Go to content
 

Policies

5. Family Law Matters – when legal aid is available

5.14. Care and protection matters

Legal aid is available for proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

5.14.1 Care and protection matters - alternative dispute resolution - for adults

Legal aid is available for dispute resolution conferencing and external alternative dispute resolution under the Children and Young Persons (Care and Protection) Act 1998 (NSW) when there are no current proceedings under that Act, if the legal aid applicant:

  • has parental responsibility for the child or young person, or
  • has had an aspect of parental responsibility for the child or young person removed by an order of the court.

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

5.14.2 Care and protection matters - alternative dispute resolution - for children and young people

Legal aid is available to the child or young person (or a child representative appointed by the court) for dispute resolution conferencing and external alternative dispute resolution under the Children and Young Persons (Care and Protection) Act 1998 (NSW) where there are no current court proceedings.

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

5.14.3 Contact Dispute Mediation - for children and young people

Legal aid is available for attendance at a pre-litigation contact dispute mediation to a child or young person who is the subject or potential subject of an application under s 86(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

There is no means test applied.

See Policy 12.4.3 on how Legal Aid NSW decides which legal representative will conduct the matter. 

5.14.4 Contact Dispute Mediation - for adults

Legal aid is available to an adult for attendance at a pre-litigation contact dispute mediation.

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

See Policy 12.4.4 on how Legal Aid NSW decides which legal representative will conduct the matter.

5.14.5 External Care and Protection Mediation

Legal aid is available for external care and protection mediation to a person who has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW)

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

5.14.6 External Care and Protection Mediation- for children

Legal aid is available for external mediation to a child or young person who has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

For a grant of legal aid to be made in these types of matters Legal Aid NSW must be satisfied that the Court has referred the chid or young person to external care and protection mediation.

There is no means test applied.

5.14.7 Care Circle Conferences - for adults

Legal aid is available to a person for attendance at Care Circles Conferences, where the person has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

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

5.14.8 Care Circle Conferences - for children

Legal aid is available to the child or young person (or a child representative appointed by the court) for attendance at Care Circles Conferences where the child or young person has a grant of legal aid for current proceedings under the Children and Young Persons (Care and protection) Act 1998 (NSW).

For a grant of legal aid to be made in these types of matters, Legal Aid NSW must be satisfied that the court has referred the legal aid applicant to the Care Circle Conference.

There is no means or merit test applied.

5.14.9 Care proceedings – for parents

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in the Children's Court and the legal aid applicant:

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

Note: Before funding the grant of aid for a final hearing Legal Aid NSW must be satisfied that the legally assisted person has reasonable prospects of achieving a better outcome than that which has been proposed in the Care Plan. See Family Law Guideline 2.13 on how this aspect of the policy is to be applied. Legal aid for applications under this policy includes aid for any dispute resolution conference.

The grant of legal aid extends to include any court ordered alternative dispute resolution.

5.14.10 Care proceedings - legal aid for children and young people

Legal aid is available to a child and young persons (or for a child representative appointed by the court) for care and protection proceedings in the Children's Court.

There is no means or merit test applied.

The grant of legal aid extends to include any court ordered alternative dispute resolution. .

5.14.11 Proceedings in the Children's Court - post final orders - for parents

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) in the Children's Court, where the legal aid applicant:

The types of matters which may be included under this policy are:

  • applications for compulsory assistance orders
  • application for variation or recission orders
  • applications for sole parental responsibility by an authorised carer, and
  • serious and persistent conflict matters where the applicant for legal aid is the applicant in the proceedings.
  • applications for contact orders
  • applications for guardianship orders

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

Legal aid is only available for contact order proceedings when:

  • the legal aid applicant has attended mediation, or
  • there are exceptional circumstances.

The grant of legal aid extends to include any court ordered alternative dispute resolution.

5.14.12 Care proceedings - for people who are significant to the child

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in the Children's Court where the legal aid applicant is a person who:

  • is significant to the care, welfare and development of the child, and
  • has a genuine concern for the safety, welfare and well-being of the child or young person.

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

See Family Law Guideline 2.13 on how to apply the benefit to the child test.

The grant of legal aid extends to include any court ordered alternative dispute resolution

5.14.13 Care proceedings in the District, Supreme and High Court –  for adults

Legal aid is available for care and protection appeals in the District, Supreme and High Court to a person:

  • who has parental responsibility for the child or young person, or
  • from whom an aspect of parental responsibility has been removed by an order of a court, and
  • has a genuine concern for the safety, welfare and well-being of the child or young person.

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

See Family Law Guideline 2.13 on applying the benefit to the child test.

The grant of legal aid also extends to include any court ordered alternative dispute resolution.

5.14.14 Care proceedings in the District, Supreme and High Court –  for children and young people

Legal aid is available for care and protection appeals in the District, Supreme and High Court to a child or young person (or a child representative appointed by the court).

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

The grant of legal aid also extends to include any court ordered alternative dispute resolution.

5.14.15 Supreme Court proceedings pursuant to the Court's inherent jurisdiction –  for adults

Legal aid is available in relation to proceedings for prerogative relief or pursuant to the Supreme Court's inherent jurisdiction.

Legal aid is available to a person:

or

  • who is significant to the care, welfare and development of the relevant child or young person, and
  • has a genuine concern for the safety welfare and well-being of the child or young person.

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

See Family Law Guideline 2.13 for further guidance on applying the benefit to the child test.

5.14.16 Supreme Court proceedings pursuant to the Court's inherent jurisdiction - for children and young people

Legal aid is available to children and young people in relation to proceedings for prerogative relief or pursuant to the Supreme Court's inherent jurisdiction

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

5.14.17 Proceedings in the Administrative and Equal Opportunity Division of NCAT – for authorised carers

Legal aid is available for proceedings in the Administrative and Equal Opportunity Division of NCAT for a review of a decision to:

  • authorise or not to authorise a person as an authorised carer
  • cancel or suspend a person's authorisation as an authorised carer, or
  • grant to, or to remove from an authorised carer the responsibility for the daily care and control of the child or young person.

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

Legal Aid NSW must be satisfied that:

  • there are exceptional circumstances, and
  • it is reasonable to provide representation, and
  • there is a benefit to the child or young person that might be gained by the applicant receiving legal aid.

See Family Law Guideline 2.13 on applying the benefit to the child test.

5.14.18 Proceedings in the Administrative and Equal Opportunity Division of NCAT -  for children and young people

Legal aid is available to children and young persons for proceedings in the Administrative and Equal Opportunity Division of NCAT where an order for separate representation has been made, for a review of a decision to:

  • authorise or not to authorise a person as an authorised carer, or
  • cancel or suspend a person's authorisation as an authorised carer, or
  • grant to, or to remove from an authorised carer, the responsibility for the daily care and control of the child or young person.

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

5.14.19 Compulsory schooling order matters – for parents

Legal aid is available to parents for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court.

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

5.14.20 Compulsory schooling order matters – for children and young people

Legal aid is available to children for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court, where the order is directed at the child (as opposed to the parent).

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

Date Last Published: 20/01/2017