Commonwealth Family Law Guidelines Urgent matters Protecting the safety of a child or a spouse who is at risk is to be accorded the highest priority in making grants of aid in family law. As a matter of urgency, aid would be granted for an interim order or injunction where a child's safety or welfare is at risk the applicant's safety is at risk there is an immediate risk of removal of a child from Australia or to a remoter geographic region within Australia there is a need to preserve assets, or other exceptional circumstances exist. Non-urgent matters Under normal circumstances aid would not be granted until the parties have been separated for a sufficient period of time to enable them to be sure that there are real issues in dispute. Subject to the above, aid may be granted for applications for interim orders or injunctions, where the Commission considers such applications are warranted. Primary dispute resolution As far as practicable priority should be given to resolving family law matters through non-litigation processes. This would include the use of counselling services to enable the parties to resolve issues in dispute between themselves and other primary dispute resolution services such as conferencing. Subject to the following, applicants for legal aid will be required to use primary dispute resolution services before any grant of legal aid is made for court proceedings. Aid for litigation should be pursued only as a last resort. Ordinarily primary dispute resolution is appropriate where the issues for resolution are substantial and there has not been a court order, registered parenting plan, mediation or family law conference in relation to the issues in dispute in the last two years, unless there has been a material change in circumstances, and the matter does not meet the urgency criteria. Ordinarily primary dispute resolution is not appropriate where there are current investigations or proceedings in relation to child abuse, or there is a current behaviour, including violence, intimidation, control or coercion that jeopardises a party's safety or ability to effectively negotiate, or there is documentary or other clear evidence establishing the refusal or unwillingness of the other party to attend, or there are practical difficulties which cannot be overcome, such as the geographical distance between the parties or the unavailability of a dispute resolution service in the applicant's region. When a matter is referred to mediation, the referral should be made by way of a section 33 authorisation. Where there have been previous investigations or proceedings in relation to child abuse, the Commission will determine if primary dispute resolution is appropriate in the particular case. Agreements and consent orders Where parties agree about arrangements, aid may be granted to register an agreement, parenting plan or consent orders if formal court orders are necessary, and a registrar of the Local Court or the Family Court or a community legal centre or advice service cannot help the applicant to prepare and register a parenting plan and consent orders. Appeals Legal Aid may granted for appeals. Where the applicant is the respondent to an appeal, the appeal is to be treated as a new matter for the purposes of the costs ceilings (caps) guideline (see below). <a name="costs"> Costs Management Guideline In this guideline: a 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 of a matter are the total costs paid in the matter (taking into account the costs paid by any other legal aid body, if the matter has been transferred from one or more States or Territories), less any contributions paid or costs recovered. stages of matter model means the stages of matter model for family law matter. Costs management principles in this guideline apply to all Commonwealth family law matters for which the Commission grants aid, whether or not the matters are funded according to the stages of matter model. Costs limitation Payment of costs under the Commission’s usual costs scales for legal aid in family law matters (other than proceedings to enforce final orders) that are commenced after 1 July 1998, are limited to · party professional costs of $10,000, · child representative’s costs of $15,000. These amounts above include counsel’s fees, expert reports and other disbursements (except interpreter and translator fees, rural travel and accommodation costs). Note: For limits to legal aid for costs of proceedings to enforce final orders, see clause 4.2(k)(i) which reads as follows: ‘Subject to clause 4.2(l)(iii) a grant of legal aid for costs proceedings to enforce final orders is limited to $2,000’ If costs likely to exceed limit If it is likely that the costs in any grant of legal aid will exceed the amounts in paragraph 4.2(k)(i) (enforcing final orders) or paragraph (ii) above, the case should be handled in-house if possible. If the matter cannot be handled in-house, the Commission will consider alternative means of funding. Example: Using retained counsel or negotiating a fee package so that the matter may be handled by a private practitioner. If, as an alternative means of funding, the Commission negotiates a fee package, it should be subject to a strict limit on costs settled with the service provider. However, the Commission may extend the grant of legal aid by an amount determined by the Chief Executive Officer after taking into account advice from the Family Court about the length of time required for the hearing of the matter. The Chief Executive Officer is responsible for ensuring that costs are managed within the set limit. Commission must provide quarterly reports The Commission must provide a quarterly report to the Commonwealth about cases in which the actual costs and commitment exceed the amounts in paragraph 4.2(k)(i) or clause 4.2(l). Stages of matter model The Commonwealth guidelines for stages of matter model have been included in the Commission’s Fee Scale for Family Law matters. Copies of this Fee Scale may be obtained from Family Law Referrals (02)9219 5810. Briefing of counsel Local Court proceedings - The Commission will not authorise the briefing of counsel in the Local Court except in particularly complex or exceptional cases. Interim hearings - The Commission will not authorise the briefing of counsel for interim hearings in the Family Court. Representation of children - The Commission will only authorise the briefing of counsel by a child's representative for final hearings where - the matter raises complex issues of fact or law, or - there are other exceptional circumstances which warrant the briefing of counsel. Duty solicitor service The duty solicitor service provided by Commission salaried solicitors in Family Law Act and associated matters at Local Courts and the Family Court is subject to the means test, except where the applicant is in custody, but not the merit test, and is limited to legal advice in respect of a first appearance, and a first appearance on behalf of the client, ordinarily involving an application for an adjournment. Preliminary advice to needy persons in remote localities in respect of dissolution proceedings The Commission will pay private solicitors to provide preliminary advice about dissolution proceedings provided the applicant is more than 50 kilometres from a Family Court Registry, a community legal centre which provides family law advice, a Commission regional office or an advice centre attended by a Commission solicitor. The fee payable is limited to one half hour of professional time at Legal Aid Commission rates. Costs of travel Legal aid may be available for the costs of travel within Australia to take delivery of a child under a recovery order where assistance is not available from another scheme. Representation Legal aid may be granted on condition that a Commission salaried solicitor, a community legal centre or a nominated private practitioner conduct the matter, regardless of the source of the application.

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in, or affected by, the laws of New South Wales, Australia only.