Legal Aid NSW Policy Online
Document Type: Policy
Chapter:5. Family Law Matters – when legal aid is available


5.1. Introduction

This chapter sets out the types of family law matters for which legal aid is available and the requirements that need to be met before legal aid can be granted for a family law matter.  It includes State and Commonwealth family law matters.

5.2. Important conditions which apply to grants of legal aid

5.2.1 Family law matters for which Legal Aid NSW will grant legal aid

Family law matters under this policy include matters arising under the following legislation:

Family Law Act 1975 (Cth)

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Children and Young Person's (Care and Protection) Act 1998 (NSW)

5.2.2 Representation in family law matters

A grant of legal aid to applicants in family law matters will be conditional upon the applicant being represented by either:

See Representation Chapter for further details.

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:

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:

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:

Legal Aid for Family Dispute Resolution (FDR)

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

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.

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:

Legal aid for Family Dispute Resolution (FDR)

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

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 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:

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

5.4. Varying or discharging parenting orders –including independent children's lawyers

5.4.1 Parenting matters – varying or discharging parenting orders - legal aid for parents

Eligibility requirements

For legal aid to be granted to parents for court applications to vary or discharge parenting orders made under the Family Law Act 1975(Cth) , 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:

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 s60I certificate must be issued by the Legal Aid NSW FDR Service.

Note: In parenting matters which are proceeding to litigation, Legal Aid NSW, in deciding whether there is a dispute about a substantial issue, will not consider that a dispute which is limited to the amount of time a child spends with a parent is a substantial issue unless Legal Aid NSW is satisfied that the legal aid applicant or child is at a significant disadvantage.

Applicants with property settlement matters

If the applicant's parenting matter could be or is being conducted with their property settlement matter under the Family Law Act 1975 (Cth), legal aid is only available for the parenting matter if:

5.4.2 Parenting matters – varying or discharging parenting orders - legal aid for people who are not parents

Eligibility requirements

For legal aid to be granted to people who are not parents for court applications to vary or discharge parenting orders made under the Family Law Act 1975 (Cth) , 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:

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 s60I certificate must be issued by the Legal Aid NSW FDR Service.

Note: In parenting matters which are proceeding to litigation, Legal Aid NSW, in deciding whether there is a dispute about a substantial issue, will not consider that a dispute which is limited to the amount of time a child spends with a parent is a substantial issue unless Legal Aid NSW is satisfied that the legal aid applicant or child is at a significant disadvantage.

5.4.3 Parenting matters – varying or discharging parenting orders - legal aid for children

Eligibility requirements

For legal aid to be granted to children for court applications to vary or discharge parenting orders made under the Family Law Act 1975 (Cth), the following tests must be satisfied:

Legal aid will not be granted to a child if:

Legal Aid for Family Dispute Resolution (FDR)

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

FDR must be provided by Legal Aid NSW FDR Section. 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 aid for court proceedings where Legal Aid NSW is satisfied that:

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


Date Last Published: 14/09/2018

5.5. Recovery, location and Commonwealth information orders

5.5.1 Recovery orders

Legal aid is available for proceedings under the Family Law Act 1975 (Cth) for the recovery of a child.

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

Note: a grant of aid for a recovery order application covers an interim application for a location and/or Commonwealth information order where necessary.

Note: see parenting matters policy 5.3 for recovery applications where there are no parenting orders in place.

See Family Law Guideline 2.8 about costs cap for these types of matters.


Date Last Published: 14/01/2019

5.6. Property settlement matters - after separation

5.6.1 Property settlement matters


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. Aid is only available for the parenting matter where the applicant is also eligible for their property matter, unless there are exceptional circumstances. See Family Law Policy 5.6.2.

Eligibility requirements for property settlement matters

For legal aid to be granted for property settlement matters under the Family Law Act 1975 (Cth), the following tests must be satisfied:

Legal Aid NSW is satisfied that:

or

Legal aid for Family Dispute Resolution (FDR)

Legal Aid will be granted for FDR where Legal Aid NSW is satisfied that:

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

See Family Law Guideline 2.11 on grants of aid made in relation to preservation of property and where there is a risk the property may be disposed of.

5.6.2 Property settlement and parenting 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 (Family Law Policy 5.3) where the applicant is also available for their property matter (Family Law Policy 5.6), unless there are exceptional circumstances (parenting and property).


Date Last Published: 02/05/2019

5.7. Spousal and de facto maintenance - after separation

5.7.1 Spousal and de facto maintenance matters

Eligibility Requirements

For legal aid to be granted to applicants to obtain or increase spousal or de facto maintenance, the following tests must be satisfied:

Legal Aid NSW must be satisfied that:

Legal aid for Family Dispute Resolution (FDR)

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

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:

5.7.2 Defending applications for spousal or de facto maintenance

Eligibility requirements

For legal aid to be granted to defend a court application to obtain or increase spousal or de facto maintenance, the following tests must be satisfied:

Legal Aid NSW must be satisfied that:

5.7.3 Application to reduce spousal or de facto maintenance

Eligibility requirements

For legal aid to be granted for an application to reduce spousal or de facto maintenance or to defend an application to reduce maintenance, 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:

See Family Law Guideline 2.3 in relation to determining whether FDR is appropriate.

FDR must be provided by 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:

Date Last Published: 20/01/2017

5.8. Child support and child maintenance matters

5.8.1 Child maintenance

Legal aid is available for court applications under the Family Law Act 1975 (Cth) for child maintenance where an application for an administrative assessment of child support cannot properly be made, for example over-18 child maintenance.

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

Where the applicant for legal aid is the child, Legal Aid NSW must also be satisfied that the child is the most appropriate person to seek the order.

See the Legal Aid NSW Child Support Service for information about the services available.

5.8.2 Child support

Legal aid is available to apply for orders and to respond to applications under the Child Support (Assessment) Act 1989 (Cth) or the Child Support (Registration and Collection) Act 1988 (Cth)

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

The grant of legal aid will normally be limited to proceedings in the Local Court or the Federal Circuit Court, unless such proceedings are unavailable.

See the Legal Aid NSW Child Support Service for information about the services available.

5.8.3 Appeals to the Administrative Appeals Tribunal (first review) in relation to child support and maintenance decisions

Legal aid is available for appeals to the Administrative Appeals Tribunal (AAT) under child support legislation in relation to:

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

In determining whether the applicant is unable to adequately represent themselves before the AAT, Legal Aid NSW will take into account whether the applicant is experiencing, or at risk of, domestic or family violence.

5.8.4 Appeals to the Administrative Appeals Tribunal (second review) in relation to child support and maintenance decisions

Legal aid is available for  appeals to the Administrative Appeals Tribunal (AAT) under child support legislation in relation to:

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

In determining whether the applicant is unable to adequately represent themselves before the AAT, Legal Aid NSW will take into account whether the applicant is experiencing, or at risk of, domestic or family violence.

5.8.5 Appeals to the court in relation to child support and maintenance decisions

Legal aid is available for appeals on a question of law from a decision of the Administrative Appeals Tribunal.

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

5.8.6 Arrears of spousal or child maintenance or child support

Legal aid is available for court proceedings for payment of arrears of child maintenance or child support.

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

Legal Aid NSW must be satisfied that:

5.8.7 United Nations Convention on Recovery Abroad of Maintenance (UNCRAM) Delegation

Legal Aid is available in relation to the recovery of child support or maintenance where an application via UNCRAM is the only option.

The means and merit tests are not applied.

5.8.8 Child Support Parentage matters

Legal aid is available for a court applications to seek or oppose a declaration in relation to parentage under the Child Support (Assessment) Act 1989 (Cth) (the Act) that is either:

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

Where the application is for a declaration under s106A of the Child Support (Assessment) Act 1989 (Cth), Legal Aid NSW must  be satisfied that:

Where the application is for a declaration under s107 of the Child Support (Assessment) Act 1989 (Cth), Legal Aid NSW must  be satisfied that:

See Legal Aid NSW Child Support Service for information about the services available.

5.8.9 DNA parentage testing

Legal aid is available for DNA parentage testing where the applicant has been granted legal aid for:

See the Legal Aid NSW Child Support Service for information about the services available.

See Family Law Guideline 2.8 on cost recovery in parentage matters.


Date Last Published: 14/09/2018

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:

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

5.10. International child abduction

Legal aid is available for the following types of international abduction matters:

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

Note: Legal Aid funding is availabile for Family Dispute Resolution for these types of matters.

Date Last Published: 14/01/2019

5.11. Contravention of parenting orders and enforcement of court orders

5.11.1 Contravention of parenting orders

Legal aid is available to make an application or respond to an application in court proceedings for contravention of parenting orders.

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

Where a related application to vary orders has been or is to be filed, please see Family Law Policy 5.4: variation of parenting orders.

Note: Legal Aid is not available for enforcement of orders.


Date Last Published: 14/01/2019

5.12. Matters after final court orders

Legal aid is only available for the following types of matters after final orders in a family law or child support matter have been made:

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

Note: Legal aid is not available for enforcement of orders.

Date Last Published: 20/01/2017

5.13. Contempt of court

Legal aid is available for a family law or child support matter where there has been contempt of court.

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

Date Last Published: 20/01/2017

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:

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:

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

Legal aid is only available for contact order proceedings when:

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:

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:

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

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:

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

Legal Aid NSW must be satisfied that:

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:

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

5.15. Special medical procedures

5.15.1 Special medical procedures – Family Court - for children

Legal aid is available for an independent children's lawyer appointed by the Family Court in proceedings for special medical procedures involving a child.

There is no means or merit test applied.

The parties are not required to contribute to the cost of the independent children's lawyer.

5.15.2 Special medical procedures – Family Court - for parents

Legal aid is available to the parents of a child in Family Court proceedings for special medical procedures involving the child.

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

See also civil law policy for special medical procedure matters conducted in the Guardianship Division of NCAT.



Date Last Published: 20/01/2017

5.16. Adoption matters

Legal aid is available for adoption proceedings as set out below.

5.16.1 Adoption – responding to an adoption application

Legal aid is available for adoption proceedings where the legal aid applicant is the respondent [the birth parent, grandparent or sibling] in the adoption proceedings.

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

Legal aid is available to a child/ren where the Court has made an order for separate representation of the child/ren, subject to the Availability of Funds Test.

5.16.2 Adoption – applicants in adoption proceedings

Legal aid is available for adoption proceedings where the legal aid applicant is the applicant in the adoption proceedings.

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

Legal aid is available to a child/ren where the Court has made an order for separate representation of the child/ren subject to the Availability of Funds Test.

Date Last Published: 11/10/2018

5.17. Domestic and family violence

If the applicant for legal aid has raised a concern about domestic violence refer to Family Law Guideline 2.7 for guidance on how to apply Legal Aid policies where there is an allegation of domestic violence.

Legal aid is available for Apprehended Domestic Violence Order proceedings in the Local Court as set out in the criminal law policies.


Date Last Published: 20/01/2017