Family law is one area of law for which legal aid is available. The main objective of this law is to ensure that the children have safe and workable care arrangements in the event of challenging family conditions, such as divorce, separation, or even family-related violence. Legal aid can be invaluable in instances such as these, which often strain family finances. This article will discuss the various procedures necessary for getting legal aid in the area of Family Law as well as the areas of specialization for which legal aid is available.
Basics Things to Know in Getting Legal Aid
To begin with, it is important to note that legal aid is available to practically anyone. However, certain exemptions to this rule may exist when the circumstances demand it. There are generally two ways to get legal aid. The first and most common way is in the form of a one-time free legal advice, where you can talk to a lawyer and they will give you free legal aid and advice about your situation. Simple documents may sometimes be provided during such consultations, too. The second way is to receive a grant of legal aid, which you can use to pay a private lawyer to handle your case.
As mentioned above, there may be some exemptions when it comes to receiving legal aid. For example, a husband may be precluded from receiving a free consultation about a family law matter when his wife, the opposing party in the case, has already received consultation from legal aid lawyers. However, this does not prevent the possibility of the husband receiving a grant which can be used to hire a private lawyer in the case.
Legal aid is available in many locations in New South Wales. To know which location is closest, you may contact 1300 888 529 or search online. Some offices may require an appointment beforehand, while some may accept drop-ins. To ensure that you will be accommodated, it’s better to phone beforehand if you can.
For Family Law matters, a separate hotline is also available which is 1800 551 589. Legal Aid also has a specialized team dedicated to family law matter called the Family Law Early Intervention Unit which deals with issues such as separation, care arrangements for children, child support, and mediation. The Family Law Early Intervention Unit office is located at Parramatta Justice Precinct Legal Aid NSW Office, Level 1, 160 Marsden Street and may be reached at contact number 1800 551 589.
Consultations for legal advice are free and there is no fee that is required to be paid for it. A person who receives a grant of legal aid, however, may be required to pay a contribution depending on the circumstances surrounding the case. When seeing a lawyer from legal aid, it’s best to bring all relevant paperwork related to the case to ensure that the lawyer gets a better appreciation of the facts. It’s also best to make a list of the most pressing or the most important issues you need advice on beforehand.
Knowing exactly what you need can help the consultation become more efficient. Most consultations last for 10-15 minutes. The limited amount of time often means that the lawyer will be unable to deal with cases involving complex issues. If your case involves complex issues and you need more help, you can fill out an application form for a legal aid grant, which can be used to hire a private lawyer.
Areas of Specialization
Family law is an incredibly broad category of law and the needs of one family often differ from another. The Family Court embraces a wide variety of topics such as child support, childcare, child protection, children’s lawyer, domestic and family violence, family dispute resolution, parenting disputes, etc. When availing of the services provided by legal aid, it’s best to know beforehand which area of specialization you might need assistance in. This way, you can make sure that your concerns will be addressed. Discussed below in this article are the various areas of specialization for which you can get free legal aid.
- Child Support Service – This area of law deals with the financial aspects of raising children. It involves parents who pay or are required to pay financial support for their children in the event of separation, or divorce. It may also involve issues of filiation and financial support. This area of law also includes carers or parents who under the law, should be receiving financial support for raising the child/children in question. The calculation of child support also falls under this area. Other issues may include support for children over 18 and support for children overseas. If your case involves issues such as these, you may phone their hotlines at 02 9633 9916 (Sydney) or 1800 451 784 (regional). Appointments are necessary to avail of legal aid from Child Support Service; drop-ins are not entertained.
- Child Care and Protection Service – This service involves issues dealing with the safety and wellbeing of children. Child Care and Protection Service deals with issues such as adoption, court proceedings for child protection, applications for compulsory schooling, and application to review a decision by the Department of Human Services to remove a child from an authorized carer. If the issues involved in your case fall under these topics, you can call any of the offices of Legal Aid New South Wales and ask about the childcare and protection service.
- Family Law Early Intervention Unit – As the name implies, this branch of Legal Aid deals with preliminary matters regarding family law matters that come up during the early stages. The purpose of the Family Law Early Intervention Unit is to settle issues as early as possible and avoid lengthy litigation. For example, couples who have just decided to divorce may ask for advice from the Family Law Early Intervention Unit about child support and childcare arrangements. The Family Law Early Intervention Unit places an emphasis on helping less-privileged homes and rural areas. The Family Law Early Intervention Unit office is located at the Parramatta Justice Precinct Legal Aid NSW Office, Level 1, 160 Marsden Street. It may be reached through its phone number 1800 551 589 for inquiries about its services and booking appointments.
- Independent Children’s Lawyer – One service provided by legal aid is an independent children’s lawyer. However, in order to avail of this service, it must be applied for in court and the said application must be granted by the court, which will then appoint the said independent children’s lawyer. An independent children’s lawyer is often necessary in cases which are highly contested, or when there are allegations of violence involved in the case. An independent children’s lawyer is primarily intended to represent the interests of the children as an impartial party to the case. The services of an independent children’s lawyer can also be requested when the children are judged to be of mature age and wish to express their views in court. An independent children’s lawyer is also responsible for procuring and presenting expert evidence which can be used in court and ensure the participation of the child in the case in a manner that will adequately reflect the age and maturity of the child. Although it is the court that approves the request and appoints an independent children’s lawyer, Legal Aid is responsible for arranging the assignment of an independent children’s lawyer for the case.
- Domestic and Family Violence – This is a general term used to refer to the collated services provided by legal aid that deals with domestic and family violence. Some of the most common issues brought before legal aid involving domestic and family violence include applications for apprehended domestic violence orders, child support, financial problems, victim’s support, representation for defendants, family dispute resolution, etc. There are also several specialist domestic violence services such as the Women’s Domestic Violence Court Advocacy Program, Domestic Violence Unit, Domestic Violence Practitioner Service, Family Advocacy, and Support Services. Legal Aid also provides factsheets and resources regarding domestic and family violence. It’s worth noting at this point that both adults and children may be victims of domestic violence and may seek out the help of legal aid. To get the full list of contact numbers for legal aid’s domestic and family violence services, please visit their site.
- Domestic Violence Unit – The Domestic Violence Unit is a specialist unit of Legal Aid, made up of lawyers and social workers who aim to help clients with their legal and social needs. Lawyers from the domestic violence unit are considered as part of a separate unit from legal aid as a whole, thus they are allowed to advise even if the other party in the dispute has already received advice from legal aid. Issues such as getting a divorce, property, victims’ support, childcare arrangements may be addressed by the domestic violence unit. To know more about the services provided by the domestic violence unit, or to get a free consultation, please phone 9219 6300.
- Parenting Disputes – A common issue dealt with by legal aid is parenting disputes. Legal Aid can provide help ensuring that the parties involved agree to safe and working parenting and care arrangements.
How to Get Legal Aid
Now that we’ve covered the basics of legal aid and the areas for which you can get legal aid, it’s time to move on to the next part: actually getting legal aid. Legal aid consultation is free for all but receiving a grant from legal aid is conditioned upon several different requirements. There are different requirements depending on which area of family law you need legal aid. The following part of this article will discuss these requirements, such as the eligibility requirements.
To begin with, to qualify for family law legal aid, the matter involved must fall under any of the following laws:
- Family Law Act 1975 (Cth)
- Child Support (Assessment) Act 1989 (Cth)
- Child Support (Registration and Collection) Act 1988 (Cth)
- Children and Young Person’s (Care and Protection) Act 1998 (NSW)
The most common issue in legal aid’s family law involves parenting matters. Parenting matters is a general term which includes topics such as disputes about the child’s care arrangement, or dispute regarding the property of spouses. In order for a parent to qualify for a grant of legal aid in an issue falling under parenting matters, there are four tests that must be satisfied.
The first test is the means test. Under this test, the income and assets of the person applying for legal aid is examined in order to determine if they qualify for a grant from legal aid. The means test will also asses the possible contributions the client may be required if found eligible. Under the means test, the means of the applicant for legal aid and any financially associated person is examined. A financially associated person is someone who could reasonably be expected to contribute to the legal costs incurred by the applicant. The identity of the financially associated person will usually depend on what kind of household the applicant is living in. There are three sub-tests under the means test, which are the income test, assets test, and ability to pay legal costs test.
As a general rule, an applicant is considered to pass the first subtest, the income test, if the income of the applicant is $400 or less per week. Exceptions may be made for those earning above $400 weekly if the circumstances demand it. A client satisfies the assets test if the net assessable assets of the client is $1500 or less. A client whose assets are above the $1500 may still be granted legal aid, but only in exceptional circumstances. Under the third and last test, which is the applicant’s ability to pay legal costs test, the client’s assets and lifestyle are examined to determine capability in paying legal costs. A client who satisfies all three is considered to have passed the means test.
The second test that must be satisfied is the merit test. The applicant must first be able to satisfy the means test before moving forward with the merit test. The merit test determines if the issue presented is the kind which legal aid funds and whether or not there is a reasonable prospect of success in the case. There are two types of merit test. The first is called the Merit Test A while the second is called the Merit Test B. The Merit Test A is applied if the family law issue involves State law family matters. Meanwhile, the Merit Test B is applied is the issues fall under Commonwealth family law matters.
Under the Merit Test A, the following factors are considered:
- The nature and extent of:
– any benefit that the applicant might expect to gain by receiving legal aid
– any disadvantage or harm to the applicant that might result from being refused of the legal aid
– whether the applicant has reasonable prospects of success
On the other hand, Merit Test B considers the following factors:
- the legal and factual merits of the case and whether the applicant has reasonable prospects of success
- whether a prudent self-funded litigant who was not eligible for legal aid would risk his or her funds in legal proceedings
- whether it is appropriate to spend limited public funds on the case.
If the client satisfies both the means test and the merit test, the next test is the Availability of Funds Test. There are two divergent kinds of Availability of Funds Test, depending on the issue presented. If the issue being presented is State law family matters (which also falls under the Merit Test A), Legal Aid will test for the availability of funds in state matters. If the issue presented falls under Commonwealth family law matters (which also fall under the Merit Test B), Legal Aid will determine and test for the availability of funds in Commonwealth matters. In both kinds, Legal Aid will determine whether or not there are sufficient funds and balance competing priorities.
Lastly, the final test to pass for the applicant to be granted legal aid is that the case should have a dispute about a substantial issue. Examples of situations which is not considered as a substantial issue in dispute include but are not limited to:
- Where there is no active dispute, for example, where the other party is not seeking to spend time with the child.
- Where the dispute concerns minor issues such as children’s clothing, routine, or activities.
- Disputes about minor increments of time, for example, an increase/decrease in nights per fortnight or an earlier/later drop-off time.
- Disputes about the changeover location and associated travel costs
- Disputes about the choice of child’s school.
- The method by which the parties are to communicate with each other or the child.
- Change of the child’s name.
- Obtaining orders to enable holiday travel arrangements.
Passing these four tests are generally required in most applications for a grant from legal aid, with additional requirements depending on the issue presented. For example, if the issue presented is about legal aid for Family Dispute Resolution, there is the additional requirement that it must be appropriate for the applicant to participate in family dispute resolution, based on the guidelines available.
If the grant being sought for is intended for legal aid for court proceedings, then there is the additional requirement that the applicant must be issued a certificate under s601 of the Family Law Act 1976 (Cth) or that the matter must be urgent.
Additionally, in some instances, a person may be disqualified from receiving legal aid even if all four tests have been satisfied. In an instance involving parenting matters receiving legal aid for children, legal aid will not be granted for a child if the family dispute resolution or court proceedings should have been initiated by a parent or a person who has parental responsibility for the child or if the matter could have been dealt with by an order for the appointment of an independent children’s lawyer.
Different requisites are present for the appointment of an independent children’s lawyer. As a rule, it is not necessary to satisfy the above-mentioned four tests; instead, the following must be satisfied in order for the appointment of an independent children’s lawyer to prosper:
- A court makes an order for the appointment of an independent children’s lawyer and asks Legal Aid NSW to arrange for an independent children’s lawyer to provide the separate representation, and
- Legal Aid NSW decides that it is reasonable to provide a grant of aid for the independent children’s lawyer
The Means Test, the Merit Test, and the Availability of Funds test also apply in issues dealing with property, again with additional requirements depending on the facts and circumstances of the case.
For a more comprehensive view of the requirements in applying for a grant from legal aid, they may be reached through their phone number 1300 888 529.