For legal aid to be granted to review a decision by CSA the following tests must be satisfied:
- the applicant meets the means test, and
- the matter meets guideline 5.3 Social Security Appeals Tribunal (SSAT) review of child maintenance and child support decisions, and
- the applicant has exhausted the CSA’s internal review process and an objection decision has been made, and
- The applicant is either:
- within the 28 day appeal period (or 90 days if they live overseas), or
- outside the 28 day appeal period and:
- there is a reasonable explanation for delay in seeking a review, and
- the applicant or child will suffer hardship if an appeal to the SSAT is not allowed, and
- the applicant has filed tax returns (if required by the ATO) for the relevant child support assessment periods.
- 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 decision made by CSA and any other relevant documents.
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 decision made by CSA and any other relevant documents.
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 represent themselves
Legal Aid Queensland will only consider that an applicant cannot adequately represent themselves if the applicant meets the commonwealth legal aid service priorities - special circumstances of the applicant priorities.
The objection decision by the CSA can be reviewed by the SSAT
The objection decision can be reviewed by the SSAT if it relates to an application to change the administrative assessment.
If the CSA have refused to make a decision because the period in dispute is more than 18 months earlier, then this can not be reviewed by the SSAT. The application needs to be considered for a Departure Application to court.
One or more grounds exist and prospects?
If the objection decision relates to an application to change the administrative assessment, and there are special circumstances of the case (one or more of 10 reasons are established) it would be unfair not to change the assessment.
There are 10 reasons for a change of assessment (section 117(2)).
- Reason 1. The costs of maintaining a child are significantly affected by high costs of enabling a parent to spend time with, or communicate with, the child.
- Reason 2. The costs of maintaining a child are significantly affected by high costs associated with the child’s special needs.
- Reason 3. The costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended.
- Reason 4. The child support assessment is unfair because of the child’s income, earning capacity, property or financial resources.
- Reason 5. The child support assessment is unfair because the payer has paid or transferred money, goods or property to the child, the payee, or a third party for the benefit of the child.
- Reason 6. The costs of maintaining a child are significantly affected by the high child care costs for the child (and the child is under 12 years of age).
- Reason 7. The parent’s necessary expenses significantly affect their capacity to support the child.
- Reason 8. The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents.
- Reason 9. The parent’s capacity to support the child is significantly affected by:
- their legal duty to maintain another child or person,
- their necessary expenses in supporting another child or person they have a legal duty to maintain,
- their high costs of enabling them to spend time with or communicate with, another child or person they have a legal duty to maintain.
- Reason 10. The parent’s responsibility to maintain a resident child significantly reduces their capacity to support the child support child.
Allocation of a solicitor
Applications for review a decision made by CSA 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 read material is CS8.
Extension(s) of aid
The grant of aid to apply or respond to proceedings in the SSAT is SS1.
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).