Notes on the 'appropriateness of spending limited legal aid funds' test in Commonwealth family law and child support matters

Notes on the 'appropriateness of spending limited legal aid funds' test in Commonwealth family law and child support matters

This test involves weighing the cost of the legal services sought against the likely benefit to the applicant, and, in appropriate matters, to the community.

There may be cases where it is likely that the court would make the orders sought but the cost of making the application is not proportionate to the benefit the applicant would gain.

In relation to combined parenting and property matters, the appropriateness of spending limited public funds on the property aspect should also be considered. This would involve balancing the difference in financial terms between the orders sought by the parties, against the likely cost of pursuing that aspect of the proceeding.

Victoria Legal Aid (VLA) considers that there is insufficient cost/benefit in expending limited public funds on matters such as:

  • permission to travel interstate or overseas for holidays
  • change of a child’s name
  • pursuing a return of chattels where all other property matters have resolved
  • applications involving a child who is of an age (generally aged 13 years or over) where they are likely to have a view as to their preferred parenting arrangement, and the person seeking assistance is making an application to the court which is contrary to the child’s views. This is because we consider that the child is likely to ‘vote with their feet’ and choose their preferred arrangement, regardless of the orders made.

Where the child is displaying extreme behaviours., such as continually running away from home or self-harming, we are likely to consider that there is sufficient cost benefit in funding the matter.

Any application for funding solely on the basis of benefit to the community must be referred to VLA for assessment (see Table 1: Seeking discretion from Assignments).

Appropriateness of spending limited public legal aid funds – Example A

A child has been brought up as a devout Muslim. The child lives with the father and spends alternate weekends with the mother. The mother has converted to Christianity and wishes to have the child baptised. The father seeks legal assistance.

There may be sufficient community benefit in having the father contest the application by the mother to warrant the cost.

Appropriateness of spending limited public legal aid funds – Example B

The mother seeks assistance for orders that the court dispense with the father’s consent to the issuing of a child’s passport to enable the mother and child to travel overseas.

This is not likely to be considered an appropriate use of limited public legal aid funds. The cost of the court application should be seen as part of the overall travel expenses paid for by the mother.