Policy Bulletin 2023/2 Family Policy: Care and Protection

16 Feb 2023

The Legal Aid NSW CEO has approved a minor amendment to the care and protection policy to make legal aid available to a representative of an Aboriginal or Torres Strait Islander family or community who has been given leave to be heard under s 87 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) and a consequential amendment to the Means Test.

Background

The Children and Young Persons (Care and Protection) Amendment (Family is Culture) Act 2022 (NSW) brings in several amendments to reflect the recommendations in the Family is Culture Review Report (2019).

The relevant provision for the purpose of the proposed policy change is the amendment to s 87 of the Children and Young Persons (Care and Protection) Act 1998  (NSW) (Care Act). The amendment clarifies that where a group of persons, such as a family, seek to be heard, a representative from a relevant Aboriginal or Torres Strait Islander organisation or entity may speak on their behalf. The word ‘entity’ is defined as including a person or an incorporated body.

It is anticipated that this change will give Aboriginal families greater options in terms of participation in Court proceedings and greater choice and agency around who speaks on their behalf.

Currently legal aid is available in care proceedings for people who are significant to the child (Family policy 3.1.2.12 Care proceedings - for people who are significant to the child). Legal aid is available to a person who can establish that they are significant to the care, welfare and development of the child or young person and have a genuine concern for their safety, welfare and well-being.

To be eligible for legal aid the applicant must satisfy the Means Test, the Merit Test and that there is a benefit to the child or young person that might be gained by the applicant receiving legal aid (see Family guideline 3.3.1).

  • What has changed?

    Family policy 3.1.2.12 now includes a note stating the policy covers an applicant who is either a person or representative of an Aboriginal and Torres Strait Islander family or community who has been given leave to be heard under s 87 of the Care Act.

    Where the court has given leave for a person or representative to be heard under s 87 of the Care Act, this would be taken into consideration when determining the merit of the application.

    Where an Aboriginal or Torres Strait Islander incorporated or unincorporated entity is given leave to appear and applies for legal aid, the Means Test will be applied as described in Means Test 1.4.11.2 Corporations and 1.4.11.3 Members of unincorporated associations.

    However, if the applicant is a representative of an Aboriginal or Torres Strait Islander family or community, then only the means of the applicant will be considered. Means Test 1.4.11.4 Groups has been amendment to clarify this position.

    This ensures that a representative of an Aboriginal or Torres Strait Islander family or community is in the same position regarding their means as an individual who has been given leave to appear in the care proceedings and is applying for a grant of legal aid.

    For details please see: Family policy 3.1.2.12 - Care proceedings - for people who are significant to the child and Means Test 1.4.11 Special types of applicants. 

Commencement date

The changes apply from 16 February 2023.

Contact for further information

Email Senior Solicitor, Anna Coffey at Client Eligibility Unit