These guidelines are intended to be read with the Family Law Policies. The guidelines provide guidance on how certain policies are to be applied by setting out certain requirements which need to be observed when determining applications and administering grants of legal aid.
If there are allegations of domestic violence in relation to an applicant or a child, and the legal aid applicant wants to apply to the court for an Apprehended Domestic Violence Order (ADVO), in deciding whether to grant aid, and the nature and extent of any such aid, Legal Aid NSW should consider the policies used for determining grants of aid: see ADVO policy 5.1.
Note: This guideline is not intended to pick up matters that are properly classed as State matters. The intention is to ensure that domestic violence matters under Commonwealth laws are treated consistently with domestic violence matters under state laws.
When determining an application for legal aid where the applicant is in custody (in prison or detention), the determining officer may take into account (but is not limited to):
Note: If the applicant for legal aid is in custody, this will be taken into account when determining whether there is a substantial issue in dispute: see Family guideline 3.13.
When considering whether there is a benefit to the child or young person that might be gained by the applicant receiving legal aid, the following factors must be taken into account:
Legal Aid NSW will be satisfied that this aspect of the policy is met where the legal practitioner representing the legally assisted person certifies that their client has reasonable prospects of achieving a better outcome than that which has been proposed in the Care Plan.
Child support or maintenance matters and spouse maintenance must be conducted in the Local Court, unless there are exceptional circumstances.
Example of exceptional circumstances
An example might be that the parties have other family law matters which are being currently conducted in the Federal Circuit and Family Court of Australia.
Where the dispute relates to the preservation of family property, and there is a risk that the property will be disposed of, the grant of aid will only be made for the injunctive relief proceedings.
If a grant of aid is required for further property proceedings, a separate application for legal aid will need to be made.
In a Commonwealth family law matter Legal Aid NSW must consider approving Early Resolution Assistance (ERA) for an applicant to participate in FDR services before it considers granting aid for litigation services at any stage in the proceedings.
Legal Aid NSW will only approve ERA requiring an applicant to participate in FDR services if it considers that this is appropriate in the particular case. Participation in FDR services is usually not appropriate where:
The Independent Children’s Lawyer (ICL) must advise Legal Aid NSW where there is no utility in continuing to act in court proceedings.
Final hearing
Where the ICL appeared in the initial stages of proceedings and seeks funding for the final hearing, Legal Aid NSW must be satisfied there is a substantial issue in dispute that requires the continued input of the ICL.
Before funding is provided for a final hearing, the ICL is required to certify that ICL input is required for the final hearing.
Note: Where the ICL submits an extension request for the final hearing, they must certify that funding for final hearing satisfies this guideline.
The Independent Children’s Lawyer is required, where appropriate, to seek a costs order from the court for the cost and expense of providing the Independent Children’s Lawyer and the expert report, unless:
Examples of situations in which there has been a material change in the applicant's circumstances include where:
If the material change in circumstances referred to above was caused by the legal aid applicant, Legal Aid NSW must consider the circumstances surrounding that change in determining whether it is appropriate to grant legal aid to the applicant.
In making a decision about whether the applicant or child is at ‘significant disadvantage', Legal Aid NSW may take into account any one or more of the following criteria:
Legal Aid NSW will be satisfied that there are special circumstances where:
An applicant is 'at special disadvantage' if:
o psychiatric condition,
o developmental disability,
o intellectual disability, or
o physical disability.
Unless the applicant is experiencing or at risk of domestic or family violence, the following examples would not generally be considered to be a substantial issue in dispute:
Note: If there is a risk of harm to the child or children, this will be taken into account when determining whether there is a substantial issue in dispute.
Note: If the applicant for legal aid is in custody (prison or detention), this will be taken into account when determining whether there is a substantial issue in dispute. This guideline is to be read in conjunction with Family guideline 3.2.
Although each of the family law matters is generally of equal priority, in deciding whether to grant aid for a family law matter in relation to an application to the court for an interim order or injunction, Legal Aid NSW must give the highest priority to urgent matters.
Urgent matters are matters in which Legal Aid NSW determines that:
Prioritising non-urgent matters
In prioritising funds available for non-urgent matters and deciding whether a grant of legal aid is to be made and, if so, the nature and extent of that grant, Legal Aid NSW may take into consideration whether:
Complexity
The following types of cases may be considered complex and warrant legal aid:
Applicant’s personal circumstances
Legal Aid NSW will be satisfied that the applicant is disadvantaged due to their personal circumstances where the applicant:
When determining an application for legal aid or Early Resolution Assistance for property settlement matters involving overseas property, Legal Aid NSW will take into account:
Legal Aid NSW will only fund property settlement matters where Legal Aid NSW is satisfied that:
Note: ‘Overseas property’ includes any real property, assets, bank accounts and superannuation/deferred benefit funds that are held outside Australia.
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