Policies
5. Family Law Matters – when legal aid is available
5.3. Parenting matters
The types of parenting matters for which legal aid may be available under the Family Law Act 1975 (Cth) include disputes relating to who a child will:
- live with
- spend time with, and
- communicate with.
Note: Where an applicant for legal aid has a parenting matter and a property matter, Legal Aid NSW expects that the proceedings will be commenced together. A grant of legal aid is only available for the property matter where the applicant is also eligible for their parenting matter, unless there are exceptional circumstances. See Family Law Policy 5.6.2.
5.3.2 Parenting matters - for parents
Legal aid is available to parents in court proceedings for parenting matters. Unless the matter is urgent, 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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- there is a dispute about a substantial issue.
Where an applicant for legal aid has a parenting matter and a property matter, legal aid will only be available for the parenting matter where the applicant is also eligible for their property matter, unless there are exceptional circumstances (parenting and property).
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 1.1: Parenting.
Note: A grant of aid for a parenting order application covers an interim application for a recovery order, location and/or Commonwealth information order where necessary.
Note: Where the applicant for legal aid is in custody see Family Law Guideline 2.19.
5.3.3 Parenting matters - Independent Children's Lawyer
Where the Court makes an order for the independent representation of the child’s interests in parenting proceedings pursuant to s68L of the Family Law Act 1975 (Cth), Legal Aid NSW may fund an Independent Children’s Lawyer if:
- the child is Aboriginal,
- there are allegations of child abuse, child neglect or domestic and family violence,
- there are issues of significant medical, psychiatric or psychological illness or personality disorder in relation to either party or a child or other person having significant contact with the child,
- the material filed by the parents indicates that neither parent seems a suitable carer for the child,
- there is an application in the court’s welfare jurisdiction relating in particular to the medical treatment of the child, or
- Legal Aid NSW is satisfied there are exceptional circumstances in which the participatory needs of the child can only be addressed by the appointment of an ICL.
There is no means or merit test applied.
Note: Where a dispute over the medical treatment of the child involves a special medical procedure, see: Family Law Policy 5.15.1 Special Medical Procedures.
5.3.4 Parenting matters – for people who are not parents
Legal aid is available to people who are not parents in court proceedings for parenting matters where Legal Aid NSW is satisfied that:
- the applicant for legal aid is significant to the care, welfare and development of the relevant child, and
- it is in the child's best interests.
Unless the matter is urgent, 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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- there is a dispute about a substantial issue.
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 1.1: Parenting.
5.3.5 Parenting matters – for children
Legal aid is available to children in court proceedings for parenting matters.
Unless the matter is urgent, 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.
To be eligible for legal aid the applicant must satisfy:
- the Means Test
- the Merit Test, and
- there is a dispute about a substantial issue.
Legal aid will not be granted to a child if Legal Aid NSW determines that:
- the court proceedings should have been initiated by a parent or a person who has parental responsibility for the child, or
- the matter could have been dealt with by an order for the appointment of an independent children's lawyer.
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 1.1: Parenting.
Date Last Published: 09/01/2023