For legal aid to be granted to end a child support agreement the following tests must be satisfied:
- the applicant meets the means test, and
- the applicant meets guideline 5 – child maintenance and child support, and
- the agreement is either a:
- binding child support agreement, or
- transitional binding agreement, and
- the applicant meets the merits test, and
- There is either a:
- a significant change in circumstances of the applicant, other parent or child have arisen since the agreement was made and the applicant or child would suffer severe financial hardship if not set aside, or
- other circumstances that existed at the time the agreement was made, such as duress, undue influence, fraud, unconscionable or other conduct, or
- the agreement provides for an amount of child support that is inadequate.
Documentary requirements
Application received from client
Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:
- a completed and signed Legal Aid Queensland application form
- proof of income and assets (refer to the means test)
- a copy of the child support agreement
- details as to why the agreement should be terminated.
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance should electronically submit an application for aid via the Grants Online system attaching:
- proof of income and assets (refer to the means test)
- a copy of the child support agreement
- details as to why the agreement should be terminated.
The following documents are retained on file but may be requested by Legal Aid Queensland:
- a completed and signed Legal Aid Queensland application form.
Interpretation
Binding child support agreement
A binding child support agreement requires both parties to seek legal advice before signing the agreement. The lawyer for each party must sign a certificate to say that legal advice has been given. The certificates of the lawyers must be attached to the agreement.
Transitional binding agreement
Child support agreements that were made (often without the benefit of legal advice) and accepted by CSA prior to 1 July 2008 and continue to have effect from 1 July 2008. These agreements are treated as binding agreements under the transitional provisions of the legislation.
Prospects of success
Binding agreements are intended to finalise child support matters between parties and will be difficult to have terminated. Legal Aid Queensland may only consider that an applicant is likely to have prospects of success in having a binding or transitional binding agreement terminated if there is evidence that:
- the agreement was obtained by fraud or failure to disclose material information, or
- the agreement was obtained by undue influence or duress or unconscionable conduct, or
- exceptional circumstances have arisen since the agreement was made which causes hardship to a party or child.
Allocation of a solicitor
Applications to end a binding or transitional agreement will be referred to the in-house family law team unless there is a conflict of interest.
Grant(s) of aid
The grant of aid for a solicitor to read the material and provide an opinion in relation to the applicants prospects of success is CS8.
Extension(s) of aid
If the assessing officer is satisfied that the applicant has prospects of success, an extension of aid is available to apply or respond to court proceedings under the CS9 grant of aid.
Review of decisions
A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).