Family Law Guidelines

Note: For family law priorities, see Schedule B of the National Partnership Agreement on Legal Assistance Services, Commonwealth priorities and eligibility principles.

Guideline 1 Priority for urgent matters

1.1 Urgent matters

Although each of the family law priorities in the Commonwealth Legal Aid Service Priorities are generally of equal priority, in deciding whether to make a grant of legal assistance for a family law matter in relation to an application to the court for an interim order or injunction, the Commission will give the highest priority to urgent matters.

Urgent matters are matters in which the Commission determines that

1. a child's safety or welfare is at risk;
2. the applicant's safety is at risk;
3. there is an immediate risk of removal of a child from Australia or to a remote geographic region within Australia;
4. there is a need to preserve matrimonial property; or
5. other exceptional circumstances exist that require urgent legal assistance.

1.2 Non-urgent matters

If the Commission determines that a family law matter that falls within the family law priorities is not urgent, a grant of legal assistance should not be granted until the relevant parties have been separated for a sufficient period of time to enable them to be sure that there are real issues in dispute.

Guideline 1.2(1) does not apply where the Commission considers that a non-urgent matter warrants a grant of legal assistance for an application to the court for an interim order or injunction prior to the passing of the sufficient period of time referred to in guideline 1.2(1).

In prioritising funds available for non-urgent matters and deciding whether a grant of legal assistance is to be made and if so, the nature and extent of that grant, the Commission may take into consideration whether

• there is, or is a likelihood of, domestic violence, especially if an allegation of domestic violence has been made
• concerns as to the safety, welfare and psychological wellbeing of a child have been identified and require further investigation
• the applicant has a language or literacy problem
• the applicant has an intellectual, psychiatric or physical disability
• it is difficult for the applicant to obtain legal assistance because the applicant lives in a remote location
• any child is Aboriginal or Torres Strait Islander as defined under section 4 of the Family Law Act 1975.

Guideline 2 Family Dispute Resolution (FDR) Services

2.1 Consideration of resolution processes other than litigation

In a family law matter under this Part 2, the Commission must consider making a grant of legal assistance for an applicant for assistance to participate in FDR Services before it considers making a grant of legal assistance to that applicant for Litigation Services at any stage in the proceedings.

2.2 Appropriateness of participation in FDR Services

The Commission will only make a grant of legal assistance requiring an applicant to participate in FDR Services if it considers that this is appropriate in the particular case. Participation in PDR Services is usually inappropriate where

1. the matter is considered to be an urgent matter under guideline 1.1 of this Part 2;
2. for family law matters relating to a child of the parties, there are any current reported allegations of child abuse, or investigations or court proceedings relating to child abuse are currently taking place;
3. a party's safety or ability to negotiate effectively is jeopardised by behaviour of the other party such as violence, intimidation, control or coercion, or a history of such behaviour;
4. one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason).

Guideline 3 Independent representation of children's interests

3.1 Assistance for independent representation of a child's interests

The Commission may make a grant of legal assistance for the independent representation of a child's interests in court proceedings if

1. a court makes an order that the child's interests be independently represented by a lawyer and asks the Commission to arrange for a lawyer to provide the independent representation, and
2. the Commission decides that it is reasonable to provide a grant of legal assistance for the independent children's lawyer.

Note A court order that an independent children's lawyer be appointed in a matter does not impose an obligation on the Commission to make a grant of legal assistance for the independent representation.

2. The Commission should make a grant of legal assistance for the independent representation of a child's interests in any court proceedings relating to special medical procedures (including sterilisation).
3. An application for a grant of legal assistance under this guideline 3.1 is not subject to the Means Test.

3.2 Payment for the costs of independent representation by a party not receiving legal assistance

If the Commission makes a grant of legal assistance for an independent children's lawyer the Commission must give consideration to the ability of the parties to the proceedings to contribute to the costs associated with

1. a single expert report
2. the grant of legal assistance for the independent children's lawyer
   
   The Commission may determine an amount to be paid by each party taking into account
3. the party's capacity to pay;
4. the party's legally aided status; and
5. contributions assessed on existing files.
3. Taking into account that the parties are equally liable to pay a single expert witness’s reasonable fees and expenses incurred in preparing a report (Family Law Rules, R15.47) ordinarily, if a party is unaided, they will be required to contribute to an equal portion of the cost of the single expert.
4. Guideline 3.2(1) does not apply to proceedings relating to special medical procedures involving a child in which a grant of legal assistance for independent representation of the child's interests has been made, regardless of whether or not any of the parties to the proceedings are receiving legal assistance under a grant of legal assistance.
5. If a party refuses or fails to pay the amount required by the Commission under this guideline 3.2, legal assistance for the independent children's lawyer should continue to be provided on the condition that the independent children's lawyer, in appropriate circumstances, seeks an order for costs against that party at an appropriate time in the court proceedings.

Guideline 4 Parenting orders

4.1 Assistance for parenting orders

The Commission may make a grant of legal assistance for a court application for a parenting order under the Family Law Act 1975 if the Commission is satisfied that

1. there is a dispute about a substantial issue; and
2. the party has a certificate under section 60I of the Family Law Act 1975 in relation to the dispute; or
3. participation in FDR Services is inappropriate in accordance with guideline 2 of this Part 2.

4.2 Assistance for applications to discharge or vary parenting arrangements

Subject to guideline 4.2(2), the Commission may make a grant of legal assistance for a court application to discharge or vary a parenting order or to set aside a registered parenting plan under the Family Law Act 1975 if the Commission is satisfied that

1. there is a dispute about a substantial issue; and
2. the party has a certificate under section 60I of the Family Law Act 1975 in relation to the dispute; or
3. participation in FDR Services is inappropriate in accordance with guideline 2 of this Part 2; or
4. there has been a material change in circumstances since the parenting order was made or the parenting plan was registered; or
5. the court application is imperative.

Examples:

1. The likelihood of violence, or physical or mental harm, to the applicant or a child.
2. The removal or risk of removal of a child from an applicant who has primary
residence responsibilities.
3. The removal or risk of removal of a child from the jurisdiction of the Court.
4. The need for an applicant with primary residence responsibilities to move
permanently overseas, interstate or elsewhere with a child, if consent is
unreasonably refused by another person.

2. If the material change in circumstances referred to in guideline 4.2(1)(c)(i) has been caused by the applicant for assistance, the Commission must consider the circumstances surrounding that change in determining whether it is appropriate to make a grant of legal assistance to the applicant.

4.3 Assistance to parties who are not parents

The Commission may make a grant of legal assistance to a party who is not a parent in court proceedings relating to a parenting order under the Family Law Act 1975 if

1. the party is significant to the care, welfare and development of the relevant child, or
2. the Commission considers it to be in the child's best interests.

Example
It may be in the child's best interests if the child's safety or welfare is at risk.

2.  Notwithstanding 4.1(a) above, in circumstances where a child protection authority is involved and is supportive of the third party, the Commission may grant aid to the extent necessary to secure the child's best interests.

4.4 Assistance where care and protection proceedings

The Commission may make a grant of legal assistance for a court application for a parenting order under the Family Law Act 1975 even if there are current care or protection orders in force under a State or Territory law, or court proceedings under a State or Territory child welfare law are currently taking place, in respect of the child.

Guideline 5 Child support and child maintenance

The grant of legal assistance under Guideline 5 should usually be limited to administrative remedies under the child support legislation, and proceedings in State or Territory magistrates or local courts or the Federal Circuit Court, unless such proceedings are unavailable.

5.1 Assistance for child support matters

The Commission may make a grant of legal assistance in relation to a child support matter under the Child Support (Assessment) Act or Child Support (Registration and Collection) Act.

5.2 Administrative Appeals Tribunal (AAT) Review of Department of Human Services - Child Support decisions

The Commission may make a grant of legal assistance in relation to

1. an appeal under the child support legislation to the AAT for first level review of a Department of Human Services - Child Support decision;
2. an appeal under the child support legislation to the AAT for second level review of a decision of the AAT; or
3. an appeal under the child support legislation to a Court on a question of law from a decision of the AAT,

if the Commission considers that circumstances exist that affect the person's ability to adequately represent himself or herself.

5.3 Assistance for child maintenance matters

The Commission may make a grant of legal assistance in relation to a child maintenance matter (including in relation to an adult child) under the Family Law Act 1975 in order to

1. apply for, or respond to, an application for a child maintenance order;
2. apply for or respond to an application to vary a child maintenance order or agreement.

5.4 Assistance for applicant children

The Commission may make a grant of legal assistance to a child (including an adult child) seeking a child maintenance order.

Guideline 6 Spousal maintenance under the Family Law Act 1975

6.1 Assistance for applications for spousal maintenance

The Commission may make a grant of legal assistance in relation to a spousal maintenance matter under the Family Law Act 1975 in order to

1. apply for, or respond to, an application for a spousal maintenance order; or
2. apply for, or respond to, an application to vary a spousal maintenance order. 

The Commission should be satisfied that the applicant for assistance

1. cannot obtain the order by consent;
2. cannot adequately prepare or defend the court application without legal assistance; and
3. cannot obtain appropriate legal assistance from another source.

Guideline 7 Arrears of spousal or child maintenance or child support

7.1 Assistance for proceedings for arrears of maintenance or child support

The Commission may make a grant of legal assistance to negotiate or prepare court proceedings for payment of arrears of child support, or spousal or child maintenance, if the applicant for assistance cannot adequately prepare the court application or present the case to the court without legal assistance and

1. appropriate legal assistance cannot be obtained from another source; or
2. the applicant for assistance is also seeking the resolution of another family law matter by the court.

Guideline 8 Parentage

8.1 Assistance relating to determining the parentage of a child

1. The Commission may make a grant of legal assistance to an applicant for the purpose of determining a parentage dispute, including the provision of funding for parentage testing.
2. If a male applicant for assistance denies he is the father of the relevant child, the Commission should not make a grant of legal assistance unless the applicant gives the Commission adequate reasons to support the denial and agrees to submit to parentage testing.
3. Assistance may only be provided if the finding in relation to parentage is necessary for the determination of the substantive proceedings.
4. A grant of legal assistance for parentage testing should only be made on the condition that steps are taken to seek recovery of the costs of the testing where appropriate.

Guideline 9 Special medical procedures involving children

9.1 Assistance for parents

The Commission should make a grant of legal assistance to the parents of a child in any court proceedings relating to special medical procedures (including sterilisation) involving the child.

1. An application for a grant of legal assistance under this guideline 9 is not subject to the Merit Test.

Guideline 10 Recovery, location and information orders

10.1 Assistance for recovery, location and information orders

1. The Commission may make a grant of legal assistance for proceedings under the Family Law Act 1975 for a recovery, location and/or information order relating to the location and/or recovery of a child.
2. A grant of legal assistance under this guideline 10

1. should usually be limited to $2 000
2. should only be made on the condition that the applicant for assistance seek a costs order against the respondent to the court application, unless that party is also receiving legal assistance under a grant of legal assistance.

Guideline 11 Divorce and nullity of marriage

11.1 Assistance for divorce or nullity of marriage

The Commission will not make a grant of legal assistance to an applicant for assistance for a court application relating to divorce or nullity of the person's marriage unless special circumstances exist and certain aspects of the court application have a complexity warranting legal assistance, and because of this complexity it would not be reasonable to expect the applicant for assistance to conduct the proceedings.

Example
The type of case that may warrant a grant of legal assistance includes–

1. difficulty in proving the marriage;
2. a need to obtain recognition of an overseas dissolution;
3. a need for substituted service; or
4. a need to dispense with service of the application.

Guideline 12 Property

12.1 Assistance for certain property settlement disputes under the Family Law Act 1975

The Commission may make a grant of legal assistance for the resolution of a property dispute under the Family Law Act 1975 only if

1.  the estimated equity in the disputed property is more than $20 000;
2. the Commission is satisfied from the material provided to it that the separation of the parties is final; and
3. the dispute relates to
   1. property; or
   2. funds from which the applicant for assistance may receive only a deferred benefit, such as superannuation benefits.

2. A grant of legal assistance for litigation for a dispute about property may only be made if the applicant for assistance is also seeking the resolution of another related family law matter by the court or the Commission decides that it is appropriate to make a grant of legal assistance to the applicant for assistance because of his or her personal circumstances.
3. Where the dispute relates to the preservation of property and there is a risk that property will be disposed of then a limited grant of legal assistance may be made for injunctive relief.

Guideline 13 Assistance after final court orders

13.1 Assistance not available

A grant of legal assistance is not available for any action undertaken after final orders in relation to a family law or child support matter have been made, except for the following types of matters under this Part 2:

1. applications to discharge or vary parenting orders or set aside registered parenting plans in accordance with guideline 4.2;
2. applications for recovery, location and/or information orders in accordance with guideline 10;
3. appeals in accordance with guideline 14;
4. enforcement of orders in accordance with guideline 15;
5. variation of a child maintenance or child support order under guideline 5 or 6;
6. in exceptional circumstances, limited ongoing work by an independent children's lawyer associated with or necessary for the implementation of orders.

Guideline 14 Appeals

14.1 Assistance for appeals

1. The Commission may make a grant of legal assistance for an appeal in relation to a family law or child support order, including for the participation of an independent children's lawyer in an appeal, only if the matter is eligible for assistance under another guideline in this Part 2.
2. The Commission must take the provisions of the Federal Proceedings (Costs) Act 1981 into account before making a grant of legal assistance under this guideline 14.

Guideline 15 Enforcement of court orders

15.1 Assistance for enforcement proceedings

The Commission may make a grant of legal assistance for court proceedings to enforce a final or interim court order relating to a family law or child support matter.

1. A grant of legal assistance under this guideline 15

1. should usually be limited to $2 000; and
2. should only be made on the condition that the applicant for assistance seek a costs order against the respondent to the court application, unless that party is also receiving legal assistance under a grant of legal assistance.

Guideline 16 Contempt of court and breach of court orders

16.1 Assistance for contempt of court or contravention of court orders

The Commission may make a grant of legal assistance to an applicant for assistance in relation to a family law or child support matter, to be dealt with for

1. contempt of court; or
2. contravention of an order of the court.

Where the applicant is a respondent to court proceedings, in determining whether to grant assistance, the Commission should have regard to the severity of any penalty to which the person is likely to be subject.

Guideline 17 International child abduction matters

17.1 Assistance in relation to international child abduction matters

The Commission may make a grant of legal assistance to an applicant for assistance to–

1. defend an application to the court under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) for
   1. the return of a child who has been removed from a convention country to, or retained in, Australia; or
   2. access to a child who is living in Australia;
2. make an application to the court under the Family Law (Child Abduction Convention) Regulations 1986 for a declaration that the removal of a child from Australia to a convention country, or the retention of a child in a convention country, is wrongful within the meaning of the Convention; or
3. make an application to the court under a bilateral agreement in relation to a child who has been wrongfully removed to Australia.

2. A grant of legal assistance is not available to an applicant for assistance to intervene in proceedings relating to the return of a child under the Convention.

Guideline 18 Family law costs management

18.1 General

In this guideline 18:

a family law or child support matter includes any dispute that involves the same parties about the same or substantially the same issue, if there has not been a material change in circumstances or if any such change would not materially affect existing orders;

costs cap means the costs limitations on a grant of legal assistance as set out in guidelines 10, 15 and 18.2 of this Part 2;

costs of a matter means the total costs paid by the Commission in a family law or child support matter in which a grant of legal assistance has been made (taking into account the costs paid by any other legal aid commission, if the matter has been transferred from one or more of the States or Territories), including counsels fees, fees for expert reports and other disbursements (except interpreter and translator fees, rural travel and accommodation costs), less any Contributions collected by the Commission from the legally assisted Person and any costs recovered by the Commission.
 

2. The Commission should treat the following proceedings as a new matter for the purposes of the Family Law Costs Management Methodology

1. recovery, location and/or information order relating to the location and/or recovery of a child;
2. appeals;
3. enforcement proceedings.

3. The costs management principles in this guideline 18 apply to all grants of legal assistance made by the Commission for family law matters.

18.2 Limit on costs

1. Under a grant of legal assistance, payment of the costs of a matter under the Commission's usual fee scales for a party in a family law or child support matter, regardless of whether legal assistance in the matter is provided in-house by the Commission or by an external service provider, is limited to $16,500.
2. The limit on costs does not apply to grants of legal assistance to independent children's lawyers.

18.3 If costs likely to exceed limit

Subject to guideline 18.3(2), (3) and (4), the Commission may increase the costs cap for a particular grant of legal assistance if, in its opinion, undue hardship would otherwise be caused to an applicant, having regard to the following factors

1. whether the applicant for assistance has incurred significant additional costs due to special circumstances of a kind listed in guideline 1.2(3);
2. whether it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind list listed in guideline 1.2(3);
3. whether the costs of the applicant for assistance have increased significantly through no fault of the applicant;
4. the number and complexity of issues in dispute;
5. the likelihood of risk to a child's safety or welfare.

2. Before making a decision under guideline 18.3(1), the Commission will have considered whether it is possible to contain costs by

1. providing legal assistance for the matter in-house; or
2. considering whether alternative means of funding are appropriate, including negotiating a fee package that is not in accordance with the Commission's usual fee scales with an external service provider.

3. Any decision made by the Commission under guideline 18.3(1) to increase the costs cap for a particular grant of legal assistance should be subject to strict limits on costs, and the nature and extent of the additional cost will be determined by the Commission or agreed between the Commission and the external service provider (as appropriate) having regard to the following factors:

1. advice from the court and the parties about the estimated length of time required for the hearing of the matter;
2. the number and nature of witnesses who must be called or cross-examined; and
3. whether the other parties to the matter have legal representation.