Family Law Guidelines

Guideline 1. General

A grant of aid may be available in a family law matter for a substantial parenting or property dispute.

A matter that would not normally seem substantial may be considered substantial if–

1. the applicant is experiencing, or at risk of, domestic or family violence
2. there is a risk of harm to a child, or
3. the applicant is in custody.

Where an applicant has both a parenting matter and a property matter there is an expectation that the proceedings will be conducted together.

A grant of aid may relate to representation at a family dispute resolution conference or to representation for litigation.

Although each family law matter is generally of equal priority, in deciding whether to grant aid for an interim order or injunction, the highest priority is given to urgent matters.

 Urgent matters are those where–

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.

In prioritising funds available for non-urgent matters, and deciding whether a grant of aid is to be made and, if so, the nature and extent of that grant, consideration is given to whether–

1. there is, or is a likelihood of, domestic or family violence, especially if an allegation of violence has been made
2. concern as to the safety, welfare or psychological wellbeing of a child has been identified and requires further investigation,
3. the applicant’s ability to communicate in English is compromised,
4. the applicant has a mental illness or impairment, or disability,
5. the applicant lives in a remote location, or
6. any child is an Aboriginal or Torres Strait Islander child, as defined under s. 4 of the Family Law Act 1975.

Guideline 2. Family Dispute Resolution Conference

Unless a matter is urgent, aid will only be granted for representation for litigation if– 

1. the applicant has a certificate under s. 60I of the Family Law Act 1975 in relation to the dispute, or
2. participation in a family dispute resolution conference has been held to be inappropriate.

Participation in a family dispute resolution conference is usually held to be inappropriate where–

1. there are current reported allegations of child abuse, or investigations or court proceedings relating to child abuse are taking place,
2. a party's safety or ability to negotiate effectively is jeopardised by the behaviour of the other party such as violence, intimidation, control or coercion or a history of such behaviour, or
3. one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of incapacity, physical remoteness from dispute resolution services or for some other reason).

Guideline 3. Parenting matters

A grant of aid may be available to a parent in relation to a dispute about who a child will–

1. live with, or
2. spend time with. 

A grant of aid may also be available–

1. to make, or respond to, a court application for the contravention of a parenting order,
2. for an application to vary or discharge a parenting order,
3. for the recovery of a child, or
4. for the following types of international abduction matters:

1. to defend an application against proceedings under the Family Law (Child Abduction Convention) Regulations 1986 for–
   • A. the return of a child who has been removed from a convention country to, or retained in, Australia, or
   • B. for access to a child who is living in Australia,
2. to make an application 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.

A grant of aid may be available in a parenting matter to a person who is not a parent where an assessment is made that–

1. the applicant for aid is significant to the care, welfare and development of the relevant child, and
2. it is in the child's best interests.

A grant of aid may be available for a court application for a parenting matter even if there are current child protection orders in force, or a court proceeding under the Children and Young People (Safety) Act 2017 is currently taking place, in respect of the child.

If a grant of aid is made for the recovery of a child, a costs order should be sought against the respondent where appropriate.

Guideline 4. Independent Children’s Lawyers (ICL)

A grant of aid for the independent representation of a child's interests in a parenting matter may be available if–

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

A court order that an ICL be appointed in a matter does not impose an obligation to make a grant of aid for independent representation. However, a grant of aid for an ICL should be made in a court proceeding relating to a special medical procedure (including sterilisation).

A grant of aid for the independent representation of a child's interests in a parenting proceeding is not subject to the Means or Merit Test.

Guideline 5. Payment for the costs of an Independent Children’s Lawyer (ICL) by a party not receiving legal assistance

If a grant of aid is made for an ICL, consideration must be given to the ability of the parties to contribute to the costs associated with the grant.

An amount to be paid by each party is to be calculated, considering–

1. the party's capacity to pay,
2. the party's legally aided status, and
3. contributions assessed on existing files.

As 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), if a party does not have a grant of aid they will be required to contribute an equal portion of the cost of the single expert.

Guideline 5.1 does not apply to a proceeding relating to a special medical procedure involving a child in which a grant of aid for an ICL has been made, regardless of whether any of the parties to the proceeding are in receipt of a grant of aid.

If a party refuses or fails to pay the amount required under this guideline, legal assistance for the ICL should continue to be provided on the condition that the ICL, in appropriate circumstances, seeks an order for costs against that party at an appropriate time in the court proceedings.

Guideline 6. Property matters

A grant of aid may be available in a property matter if–

1. the net value of the pool of assets is $650,000 or less (excluding superannuation), and
2.  the applicant–

1. has experienced, or is at risk of, domestic or family violence,
2. has a disability,
3. physical disability;
4. is 55 years of age or older, or
5. has been assessed to have some other form of vulnerability such that it is appropriate the matter be funded.

Guideline 7. Child support and child maintenance

A grant of aid may be available to apply for an order or respond to an application under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

A grant of aid may be available for a child maintenance matter (including an adult child) under the Family Law Act 1975 to–

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

A grant of aid may be available–

1. for an appeal under the child support legislation to the Administrative Review Tribunal (ART) in relation to a first review of a child support or child maintenance decision by the Child Support Agency,
2. for an appeal under the child support legislation to the ART in relation to a second review of a decision of the ART, or
3. to appeal a question of law from a decision of the ART.

A grant of aid will only be available if circumstances exist that affect the applicant's ability to adequately self-represent.

A grant of aid may be available to a child (including an adult child) seeking a child maintenance order.

Guideline 8. Spousal or de facto maintenance under the Family Law Act 1975

A grant of aid may be available to–

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

A grant of aid is only available if Legal Services is satisfied that the applicant is unable to–

1. obtain the order by consent,
2. adequately prepare or defend the court application without legal assistance, or
3. obtain appropriate legal assistance from another source.

Guideline 9. Arrears of spousal or child maintenance or child support

A grant of aid may be available to negotiate or prepare court proceedings for payment of arrears of child support, or spousal or child maintenance, if the applicant cannot adequately prepare the court application or present the matter to the court without legal assistance and–

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

Guideline 10. Parentage

A grant of aid may be available to determine a parentage dispute, including funding for parentage testing.

If a male applicant denies he is the father of the relevant child, a grant of aid should not be made unless the applicant provides adequate reasons to support the denial and agrees to submit to parentage testing.

A grant of aid may only be provided if the finding in relation to parentage is necessary to determine the substantive proceedings.

Steps should be taken to seek recovery of the costs of parentage testing where appropriate.

Guideline 11. Special medical procedures involving children

A grant of aid may be available to the parents of a child in a court proceeding relating to a special medical procedure (including sterilisation) involving the child.

The Merit Test does not apply to an application.

Guideline 12. Divorce

A grant of aid for a court application relating to divorce or nullity of a person's marriage will only be available if it would be unreasonable to expect the applicant to conduct the proceedings due to–

1. the personal circumstances of the applicant, and
2. the complexity of the court application.

Relevant personal circumstances of the applicant may include the following:

1. experiencing, or at risk of, domestic or family violence,
2. an ongoing health condition or disability,
3. experiencing significant financial hardship, or
4. insufficiently fluent in English to properly manage the court system.

The types of matter that may be considered complex include the following–

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

Guideline 13. Appeals

A grant of aid may be available to appeal a family law or child support matter, including a grant of aid for an independent children’s lawyer if required.

The Federal Proceedings (Costs) Act 1981 is to be considered before granting aid for an appeal.

Guideline 14. Grant of aid after a final court order

A grant of aid is not available after a final order has been made in a family law or child support matter, except in relation to–

1. an application to discharge or vary a parenting order or set aside a registered parenting plan,
2. an application for a recovery order,
3. an appeal,
4. the enforcement of an order,
5. the variation of a child maintenance or child support order, or
6. in exceptional circumstances, limited ongoing work by an independent children's lawyer associated with, or necessary for, the implementation of orders made.

Guideline 15. Enforcement of a court order

A grant of aid may be available to enforce a final or interim court order relating to a family law or child support matter.

If a grant of aid is made under Guideline 15, a costs order should be sought against the respondent if appropriate.

Guideline 16. Contempt of court or contravention of a court order

A grant of aid may be available in a family law or child support matter in court proceedings related to–

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

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