The appropriateness of spending limited public legal aid funds test

The appropriateness of spending limited public legal aid funds test

Usually, the person seeking a grant of assistance must give enough information to their lawyer (if any) and/or to Victoria Legal Aid (VLA) to satisfy their lawyer and VLA that the costs involved in granting assistance are justified by:

  • the likely benefit to the person seeking the grant of assistance
    or, if appropriate,
  • the likely benefit to the community.

The person’s lawyer (if any) or VLA’s Assignments Unit (whichever is relevant) must weigh the cost of the desired legal services against the likely benefits to the person or to the community. Sometimes, even if a court might make the orders the person seeks, the cost may not be proportionate to the benefit the person would get – that is, the cost may be much greater than any benefit.

Civil proceedings under the Proceeds of Crime Act

If a person is seeking a grant of assistance for a civil proceeding under the Proceeds of Crime Act 2002 (Cth), VLA must disregard this ‘appropriateness of spending’ test when assessing the person’s eligibility under the Commonwealth merits test.

Example of appropriate spending of legal aid resources in family law

A child has been brought up as a devout Muslim. The parents have separated and the non-carer parent has converted to Christianity and wishes to have the child baptised. There may be sufficient benefit to justify the cost of VLA providing a grant of assistance to the carer parent to contest the application.

Examples of inappropriate spending of legal aid resources in family law

The following are examples of inappropriate spending of Commonwealth legal aid resources:

  • An application to a court to dispense with a spouse’s consent to a child’s passport so that the applicant and the child can travel overseas. This would be inappropriate legal aid spending because the potential costs of documentation for the overseas trip should form part of the overall expense of the trip, for which the applicant should pay.
  • Some aspects of family law disputes, where the issue seems to be disproportionately small compared to the costs of the grant of assistance. For example:
    • a change of name
    • in a dispute about with whom a child should live, issues such as who will pay for a child’s bus or taxi fare, who washes the child’s clothes, or who provides the child’s morning or afternoon tea.
  • Under interim orders made, a child is to spend from 9 am every second Saturday to 5 pm Sunday with the father. The father wishes to vary the interim orders to increase the period of time the child spends with him by having it start at 5 pm Friday. The cost of a second application for interim orders is approximately $1600. VLA would not consider that the benefit justifies this expense. VLA would expect the father to wait until the final hearing to seek orders for the child to spend increased time with him.

Urgent specific issues in family law may justify spending legal aid resources

If specific issues in family law disputes constitute a 'priority' or 'urgent' matter, then VLA may grant legal assistance. See Guideline 2 – litigation.