Notes on the forum test in Commonwealth family law and child support matters

Notes on the forum test in Commonwealth family law and child support matters

Note: The following information provides guidance on how to interpret and apply the forum test and should be read in conjunction with that section of the Handbook. Where there is any inconsistency between the following information and the Handbook the Handbook will prevail.

a) Proposed proceedings

If a lawyer determines that the appropriate place to issue proceedings is in another state and not Victoria, the person seeking assistance should be advised to make an application to the state legal aid commission where the proceedings would be issued. This includes applications for advice and negotiations and family dispute resolution.

Jurisdiction – Example A

The application relates to an autistic child who has recently moved to New South Wales with his mother. The father wishes to issue proceedings for the child to live with him.

It may be appropriate for the father to issue proceedings in Victoria if the child’s specialist, school and the child welfare agency that were involved with the family are all in Victoria.

b) Proceedings already on foot

In any application for legal assistance, regardless of the state of residence of the person seeking assistance, the forum test applies.

Proceedings already on foot – Example A

Proceedings are issued in Victoria by the applicant mother, who resides in Victoria. The respondent father and the children reside in Queensland. The lawyer for the father must seek assistance from Victoria Legal Aid (VLA). If the proceedings are transferred to Queensland, the grant of assistance from VLA will cease and the father will need to apply to the Queensland Legal Aid Commission for assistance. This is because there is no longer a forum or residential link between the father and the granting state (Victoria).

Proceedings already on foot –Example B

Proceedings are issued in Victoria by the mother who recently moved to Victoria with the children. The matter is funded by VLA. Interim orders are made for the children to live with the father in South Australia and the proceedings are transferred to South Australia. VLA would continue to fund the mother as she has a residential link to the granting state (Victoria).