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Policy Bulletin 2019 / 10 (Forum Test)

1 Jul 2019

From 1 July 2019, Legal Aid NSW and Victoria Legal Aid (VLA) will be piloting a more flexible approach to the Forum Test. The pilot will run for a period of 12 months, at which point it will be evaluated.

Background

What is the Forum Test?

The Forum Test was established in 1991. The aim of the Forum Test is to clarify which legal aid commission (LAC) is responsible for funding a grant of legal aid to clients. While it is intended that the Forum Test would be applied consistently across all LACs, the way the Forum Test is worded at each    LAC differs and gives the impression that the test is not uniform. This is particularly confusing for private practitioners who have panel membership in multiple states.

What is the change?

We are expanding the forum test guideline so that applicants for legal aid that reside in the ‘cross-border buffer zone’ along the Victoria-NSW border will be either:

  1. assessed under the broader nationwide Forum Test to determine which legal aid commission is responsible for their grant of legal assistance and therefore which lawyers would be able to assist, or
  2. able to instruct a lawyer to assist them, provided the panel lawyer’s principal place of practice is also within the buffer zone and the lawyer is on VLA’s family law panel if the application is made to VLA or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW.

If option 2 is selected, the lawyer will apply to the LAC that they have panel membership for and apply for a grant of assistance for their client. This is regardless of whether the nationwide forum test is met.

Who qualifies under the flexible forum test?

To make an application under the flexible forum test, an applicant must meet all of the following conditions:

  1. they reside in a local government area (LGA) or law society area (LSA) along the Victorian and NSW border
  2. they are seeking a grant of legal aid for a Commonwealth family law matter
  3. they have a Commonwealth family law matter that is being heard or going to be heard in either Victoria or NSW
  4. their lawyer is on Legal Aid NSW family law panel if the application is made to Legal Aid NSW or on the VLA’s family law panel if the application is made to VLA
  5. their lawyer’s principal place of practice is also in a relevant LGA/LSA.

Applicants who apply under the flexible forum test may apply to Legal Aid NSW or VLA for a grant of aid, even if the matter is going to be heard in the other state, as long as their lawyer is on the relevant family law panel. Applicants must still meet relevant guideline, merit and means test requirements.

What is the cross-border buffer zone?

The cross-border buffer zone captures the local government areas (LGAs) and law society areas that sit along the border of Victoria and NSW respectively.

What are the relevant LGAs/LSAs?

The flexible forum test applies to applicants living in the following LGAs/LSAs:

New South Wales: Wentworth, Balranald, Murray River, Berrigan, Federation, Greater Hume, Albury, Snow Valleys, Snowy Monaro, Bega Valley.

Victoria: Mildura, Swan Hill, Gannawarra, Campaspe, Moira, Wangaratta, Indigo, Wodonga, Towong, East Gippsland.

What if a legally aided person moves out of an eligible LGA/LSA?

Where a legally aided person moves out of an eligible LGA/LSA while their matter is ongoing, the usual forum test will apply, and their grant of legal aid will be reassessed.

Where can I find the changes?

See Policy Online Forum Test at 18.1.1 for details of the pilot.

Commencement date

The flexible Forum Test will apply to new applications for Commonwealth family law matters made on or after 1 July 2019.

Contact for further information

Please contact the Client Eligibility Unit for any questions about the changes on aideen.mcgarrigle@legalaid.nsw.gov.au or 9219 5701. Contact the Grants Family Law team for any queries about whether your client maybe eligible under the flexible Forum Test on grants.family@legalaid.nsw.gov.au.