Legal Aid may be available to receiving parents to make an application to recover child support arrears if:
- the applicant meets the means test, and
- the applicant meets guideline 7 – arrears of spousal or child maintenance or child support, and
- CSA has not commenced proceedings to enforce the child support arrears against the other party, and
- the paying parent has an outstanding child maintenance debt of $10,000 or more (exclusive of child support penalties and fees), and
- the amount of child support debt is not in dispute, and
- the circumstances justify the debt forming part of a property settlement rather than CSA pursuing the debt, and
- the applicant meets the merits test.
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
- evidence of the outstanding debt
- any relevant documentation from CSA.
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
- evidence of the outstanding debt
- any relevant documentation from CSA.
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
The applicant cannot adequately prepare the court application or present the case to the court without legal representation
Legal Aid Queensland will only consider that an applicant cannot adequately prepare the court application or present the case to the court without legal representation if the applicant meets the commonwealth legal aid service priorities - special circumstances of the applicant priorities.
Appropriate legal assistance cannot be obtained from another source
Under this criteria, Legal Aid Queensland expects applicants to make an application for the recovery of child support arrears to obtain legal assistance through a community legal centre.
Legal assistance may be provided in matters where Legal Aid Queensland deems that it is inappropriate to refer the matter to a community legal centre. Legal Aid Queensland may consider a referral is inappropriate where:
- the applicant has special circumstances as outlined in the commonwealth legal aid service priorities - special circumstances of the applicant priorities
- the case is complex or urgent
- the child is over the age of 18
- paternity is in dispute.
The applicant for assistance is also seeking the resolution of another family law matter by the court
Under this criteria, Legal Aid Queensland can only fund applicants to make an application for the recovery of child support arrears where the applicant is currently in receipt of funding for a property dispute.
CSA has not commenced court proceedings to enforce the arrears against the paying party
Legal aid is not available for the receiving parent where the CSA has commenced enforcement of child support arrears on behalf of the payee parent.
The circumstances justify the debt forming part of a property settlement rather than CSA pursuing the debt
Legal Aid Queensland considers there to be a substantial benefit to the payee parent and/or child if the child support arrears are included in the property settlement as it enables the carer parent to provide for necessities for the child (accommodation, health etc). For example, when the carer parent retains the matrimonial home, or there is a small property pool and the carer parent retains matrimonial assets.
Allocation of a solicitor
Applications for the recovery of child support arrears 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 to attend to additional work in relation to the recovery of child support arrears is CS11.
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).