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Policies

5. Family Law Matters – when legal aid is available

5.3. Parenting matters - including independent children's lawyers

5.3.1 Types of 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.

5.3.2 Parenting matters  - legal aid for parents

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.

Eligibility requirements for parenting matters

For legal aid to be granted to parents in parenting matters, the following tests must be satisfied:

Legal aid for Family Dispute Resolution (FDR)

The applicant will be granted legal aid for FDR where Legal Aid NSW is satisfied that:

  • the eligibility requirements set out in 5.3.2 are satisfied, and
  • it is appropriate for the applicant to participate in FDR. See Family Law Guideline 2.3.

FDR must be provided by the Legal Aid NSW FDR Service. Legal Aid NSW is a “family dispute resolution practitioner” as defined under s10G(1)(b) of the Family Law Act 1975 (Cth).

Legal aid for Court proceedings

The applicant will be granted legal aid for court proceedings where Legal Aid NSW is satisfied that:

The 60I certificate must be issued by the Legal Aid NSW FDR Service.

Location and Recovery orders in parenting proceedings

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.

Applicants with parenting and property settlement matters

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).

5.3.3 Parenting matters – legal aid for people who are not parents

Eligibility requirements

For legal aid to be granted to people who are not parents in parenting matters, the following tests must be satisfied:

  • 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.

Legal Aid for Family Dispute Resolution (FDR)

The applicant will be granted legal aid for FDR where Legal Aid NSW is satisfied that:

  • the eligibility requirements set out in 5.3.3 are satisfied, and
  • it is appropriate for the applicant to participate in FDR. See Family Law Guideline 2.3.

FDR must be provided by the Legal Aid NSW FDR Service. Legal Aid NSW is a “family dispute resolution practitioner” as defined under s10G(1)(b) of the Family Law Act 1975 (Cth).

Legal aid for Court proceedings

The applicant will be granted legal aid for court proceedings where Legal Aid NSW is satisfied that:

  • the eligibility requirements in 5.3.3 are satisfied, and
  • the applicant has a certificate issued under s60I of the Family Law Act 1975 (Cth) in relation to the dispute, or
  • the matter is urgent.

The 60I certificate must be issued by the Legal Aid NSW FDR Service.

5.3.4 Parenting matters –  legal aid for children

Eligibility requirements

For legal aid to be granted to children in parenting matters, Legal Aid NSW must be satisfied that:

Legal aid will not be granted to a child if:

  • the FDR or 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.

Legal aid for Family Dispute Resolution (FDR)

The applicant will be granted legal aid for FDR where Legal Aid NSW Is satisfied that:

  • the eligibility requirements in 5.3.4 are satisfied, and
  • it is appropriate for the applicant to participate in FDR. See Family Law Guideline 2.3.

FDR must be provided by the Legal Aid NSW FDR Service. Legal Aid NSW is a “family dispute resolution practitioner” as defined under s10G(1)(b) of the Family Law Act 1975 (Cth).

Legal aid for court proceedings

Legal Aid will be granted for court proceedings where Legal Aid NSW Is satisfied that:

  • the eligibility requirements in 5.3.4 are satisfied, and
  • the applicant has a certificate issued under s60I of the Family Law Act 1975 (Cth) in relation to the dispute, or
  • the matter is urgent.

The 60I certificate must be issued by the Legal Aid NSW FDR Service. Legal Aid NSW is a “family dispute resolution practitioner” as defined under s10G(1)(b) of the Family Law Act 1975 (Cth).

5.3.5 Independent children's lawyer

Legal aid is available for an independent children's lawyer where:

  • a court makes an order for the appointment of an independent children's lawyer and asks Legal Aid NSW to arrange for an independent children's lawyer to provide the separate representation, and
  • Legal Aid NSW decides that it is reasonable to provide a grant of aid for the independent children's lawyer

Legal Aid NSW is not bound to make a grant of aid for an independent children's lawyer.

If an independent children's lawyer is appointed there is no means test or merit test applied when determining the grant of aid.

Date Last Published: 02/05/2019