Forum test

Forum test

Victoria Legal Aid (VLA) will apply the 'forum test' if the applicant's matter is to be taken in a state or territory of Australia other than the one they live in.

Under the forum test, the grant of legal assistance is the sole responsibility of the legal aid commission in the state or territory in which the matter is going to be heard.

For example

A person living in Victoria seeks a grant of legal assistance to either commence or respond to proceedings in the Family Court at Newcastle.

In this instance, the person needs to apply to Legal Aid NSW for a grant of legal assistance, because Newcastle is the forum in which the matter is heard/going to be heard.

Which legal aid commission decides whether to make a grant of legal assistance?

The decision to make a grant of legal assistance is the sole responsibility of the legal aid commission in the state or territory in which the matter is listed to be heard (the 'granting state of territory').

In this context, ‘forum’ means the state or territory in which the matter is heard/going to be head. It does not mean the state or territory of the managing registry.

For example, the Melbourne registry of the Family Court manages the listing of matters for the Albury (New South Wales) sittings of the Family Court. As such, the relevant forum is NSW where the matter is heard, not Victoria.

What if the forum changes to another state or territory?

If the forum changes to another state or territory (the ‘new forum state or territory’) during the life of a matter, then the state or territory in which the assisted person lives becomes relevant, as follows:

  • If the assisted person lived in the granting state or territory in the past, and still lives there, then the granting state or territory continues to assist the matter because of their continuing residential link.
  • If the assisted person has never lived in the granting state or territory, or stops living there, then the granting state or territory will stop providing a grant of legal assistance. The person must then apply for a grant of legal assistance to the legal aid commission in the new forum state or territory because there is no longer a forum link or residential link with the granting state or territory.

For commentary relating to applying the forum test in Commonwealth family law and child support matters, see Notes on the forum test.

Flexible forum test pilot

From 1 July 2019, VLA will be trialling a more flexible forum test. To make an application under the flexible forum test, an applicant must meet all of the following conditions:

  • They reside in a local government area (LGA) or law society area (LSA) along the NSW and Victorian border in a relevant LGA postcode
  • They are seeking a grant of assistance for a Commonwealth family law matter
  • They have a Commonwealth family law matter that is being heard or going to be heard in either Victoria or New South Wales
  • Their lawyer is on VLA or Legal Aid NSW's family law panel
  • Their lawyer's principal place of practice is also in a relevant LGA/LSA postcode.

Applicants who apply under the flexible forum test may apply to VLA for a grant of assistance, even if the matter is going to be heard in NSW, as long as their lawyer is on the VLA family law panel.

Applicants must still meet relevant guideline, merit and means test requirements.

Example

A person living in Wodonga, Victoria, wants legal representation to respond to a family law matter being heard in Albury, New South Wales. The lawyer they want is also based in Wodonga and on VLA's family law panel.

Under the flexible forum test, the person can apply to VLA for a grant of legal assistance even though the matter is being heard in NSW.

What are the relevant LGAs/LSAs?

The flexible forum test applies to applicants living in the following LGAs/LSAs:

Victoria: Mildura, Swan Hill, Gannawarra, Campaspe, Moira, Wangaratta, Indigo, Wodonga, Towong, East Gipplsand.

New South Wales: Wentworth, Balranald, Murray River, Berrigan, Federation, Greater Hume, Albury, Snowy Valleys, Snowy Monaro, Bega Valley.

What if the applicant moves out of an eligible LGA/LSA area?

Where an assisted person moves out of an eligible LGA/LSA while their matter is ongoing, the usual forum test will apply, and their grant of legal assistance will be reassessed.