Policies
5. Family Law Matters – when legal aid is available
5.4. Varying or discharging parenting orders
5.4.1 Varying or discharging parenting orders – for parents
Legal aid is available to parents for court applications to vary or discharge parenting orders made under the Family Law Act 1975 (Cth).
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
- Merit Test
- there is a dispute about a substantial issue, and
- there has been a material change in circumstances since the parenting orders or parenting plan were made, or
- the court application is imperative.
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: Where the applicant for legal aid is in custody see Family Law Guideline 2.19.
5.4.2 Varying or discharging parenting orders – Independent Children's Lawyer
Where the Court makes an order pursuant to s68L of the Family Law Act 1975 (Cth) for the independent representation of the child’s interests in proceedings to vary or discharge parenting orders, 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.
Note: Legal Aid NSW will not automatically fund an Independent Children’s Lawyer on the basis the child’s interests were represented by an ICL in the primary proceedings.
5.4.3 Varying or discharging parenting orders – for people who are not parents
Legal aid is available to people who are not parents for court applications to vary or discharge parenting orders made under the Family Law Act 1975 (Cth) 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
- Merit Test
- there is a dispute about a substantial issue, and
- there has been a material change in circumstances since the parenting orders or parenting plan were made, or
- the court application is imperative.
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.
5.4.4 Varying or discharging parenting orders – for children
Legal aid is available to children for court applications to vary or discharge parenting orders made under the Family Law Act 1975 (Cth).
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
- Merit Test
- there is a dispute about a substantial issue, and
- there has been a material change in circumstances since the parenting orders or parenting plan were made, or
- the court application is imperative.
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