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Guidelines - Commonwealth - Family

Although each of the family law priorities in the Commonwealth Legal Aid Service Priorities are generally of equal priority, in deciding whether to make a grant of legal assistance for a family law matter in relation to an application to the court for an interim order or injunction, Legal Aid Queensland will give the highest priority to urgent matters.
Urgent matters are matters in which Legal Aid Queensland determines that:
1. a child's safety or welfare is at imminent risk
2. the applicant's safety is at imminent risk
3. there is an immediate risk of removal of a child from Australia or to a remote geographic region within Australia.
4. there is a need to preserve matrimonial property, or
5. other exceptional circumstances exist that require urgent legal assistance.

1.2 Non-urgent matters

If Legal Aid Queensland determines that a family law matter that falls within the family law priorities is not urgent, a grant of legal assistance should not be approved until the relevant parties have been separated for a sufficient period of time to enable them to be sure that there are real issues in dispute.

Note: Sufficient period of time is defined as 6 weeks.
Guideline 1.2(1) does not apply where Legal Aid Queensland considers that a non-urgent matter warrants a grant of legal assistance for an application to the court for an interim order or injunction prior to the passing of the sufficient period of time referred to in guideline 1.2(1).
In prioritising funds available for non-urgent matters and deciding whether a grant of legal assistance is to be made and if so, the nature and extent of that grant, Legal Aid Queensland may take into consideration whether:
1. there are concerns about the safety of a child, or a person who has care of the child, arising from the impact of family violence, abuse, neglect or other harm
2. concerns as to the developmental, psychological, emotional, and cultural needs of a child have been identified and require further investigation
3. the applicant has a language or literacy problem
4. the applicant has an intellectual, psychiatric or physical disability
5. it is difficult for the applicant to obtain legal assistance because the applicant lives in a remote location
6. the child/children are Aboriginal or Torres Strait Islander as defined under section 4 of the Family Law Act 1975.

Guideline 2 - Family Dispute Resolution (FDR) Services

2.1 Consideration of resolution processes other than litigation

In a family law matter under these Commonwealth Family Law guidelines, Legal Aid Queensland must consider making a grant of legal assistance for an applicant for assistance to participate in FDR Services before it considers making a grant of legal assistance to that applicant for litigation services at any stage in the proceedings.

2.2 Appropriateness of participation in lawyer assisted FDR Services

Legal Aid Queensland may make a grant of legal assistance for an applicant to participate in lawyer assisted FDR services if:
1. There is a dispute about a substantial issue, and
2. Legal Aid Queensland considers that a lawyer assisted service is required.
Legal Aid Queensland will only make a grant of legal assistance requiring an applicant to participate in FDR Services if it considers that this is appropriate in the particular case. Participation in FDR Services may be inappropriate where:
1. the matter is considered to be an urgent matter under guideline 1.1 of these Commonwealth Family Law guidelines
2. for family law matters relating to a child of the parties, there are any current reported allegations of child abuse, or investigations or court proceedings relating to child abuse are currently taking place
3. a party's safety or ability to negotiate effectively is jeopardised by behaviour of the other party such as violence, intimidation, control or coercion, or a history of such behaviour
4. one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind or for some other reason).

Guideline 3 - Independent representation of children

3.1 Assistance for independent representation of a child

Legal Aid Queensland may make a grant of legal assistance for the independent representation of a child in court proceedings if:
1. a court makes an order that the child's interests be independently represented by a lawyer and asks Legal Aid Queensland to arrange for a lawyer to provide the independent representation, and
2. Legal Aid Queensland decides that it is reasonable to provide a grant of legal assistance for the independent children's lawyer.
  
  Note: A court order that an independent children's lawyer be appointed in a matter does not impose an obligation on Legal Aid Queensland to make a grant of legal assistance for the independent representation.
Legal Aid Queensland should make a grant of legal assistance for the independent representation of a child in any court proceedings relating to special medical procedures (including sterilisation).
An application for a grant of legal assistance under this guideline 3.1 is not subject to the means test.

3.2 Payment for the costs of independent representation by a party not receiving legal assistance

If Legal Aid Queensland makes a grant of legal assistance for an independent children's lawyer Legal Aid Queensland must give consideration as to the ability of the parties to the proceedings to contribute to the costs and disbursements associated with the grant of legal assistance for the independent children's lawyer.
Legal Aid Queensland may determine an amount to be paid by each party taking into account:
1. The party's capacity to pay
2. The party's legally aided status
3. Contributions assessed on existing files.
Taking into account that the parties are equally liable to pay a single expert witness's reasonable fees and expenses incurred in preparing a report (Family Law Rules, R7.06) ordinarily, if a party is unaided, they will be required to contribute to an equal portion of the cost of the single expert.
Guideline 3.2(1) does not apply to proceedings relating to special medical procedures involving a child in which a grant of legal assistance for independent representation of the child has been made, regardless of whether or not any of the parties to the proceedings are receiving legal assistance under a grant of legal assistance.
If a party refuses or fails to pay the amount required by Legal Aid Queensland under this guideline 3.2, legal assistance for the independent children's lawyer should continue to be provided on the condition that the independent children's lawyer in appropriate circumstances seek an order for costs against that party at an appropriate time in the court proceedings.

Guideline 4 - Parenting orders

4.1 Assistance for parenting orders

Legal Aid Queensland may make a grant of legal assistance for a court application for a parenting order under the Family Law Act 1975 if Legal Aid Queensland is satisfied that:

The applicant is a vulnerable client, and
The dispute is about a substantial issue concerning:
1. the safety of the child and their protection from family violence, abuse, neglect or other harm, or
2. the denial of the child's right to have a safe and beneficial relationship with their parents and other significant people, or
3. the denial of the child's right to enjoy their Aboriginal or Torres Strait Islander culture and
any of the following circumstances apply:
1. the party has a certificate under section 60I of the Family Law Act 1975 issued by Legal Aid Queensland in relation to the dispute, or
2. participation in FDR Services has been assessed by Legal Aid Queensland as inappropriate in accordance with guideline 2 of these Commonwealth Family Law guidelines.

4.2 Assistance for applications to discharge or vary parenting arrangements

Subject to guideline 4.2(2), Legal Aid Queensland may make a grant of legal assistance for a court application to discharge or vary a parenting order under the Family Law Act 1975 if Legal Aid Queensland is satisfied that:
1. The applicant is a vulnerable client, and
2. There is a dispute about a substantial issue concerning:
  1. the safety of the child and their protection from family violence, abuse, neglect or other harm, or
  2. the denial of the child's right to have a safe and beneficial relationship with their parents and other significant people, or
  3. the denial of the child's right to enjoy their Aboriginal or Torres Strait Islander culture and
c. any of the following circumstances apply:
1. the party has a certificate under section 60I of the Family Law Act 1975 issued by Legal Aid Queensland in relation to the dispute, or
2. participation in FDR Services has been assessed by Legal Aid Queensland as inappropriate in accordance with guideline 2 of these Commonwealth Family Law guidelines, and
d. there has been a significant change in circumstances since the final parenting order was made

2. If the significant change in circumstances referred to in guideline 4.2(1)(d) has been caused by the applicant for assistance, Legal Aid Queensland must consider the circumstances surrounding that change in determining whether it is appropriate to make a grant of legal assistance to the applicant.

4.3 Assistance to parties who are not parents

Legal Aid Queensland may make a grant of legal assistance to a party who is not a parent in court proceedings relating to a parenting order under the Family Law Act 1975 if:
1. The applicant is a vulnerable client, and
2. There is a dispute about a substantial issue concerning:
  1. the safety of the child and their protection from family violence, abuse, neglect or other harm, or
  2. the denial of the child's right to have a safe and beneficial relationship with their parents and other significant people, or
  3. the denial of the child's right to enjoy their Aboriginal or Torres Strait Islander culture and
3. the party is significant to the developmental, psychological, emotional and cultural needs of the relevant child, and
4. Legal Aid Queensland considers it to be in the child's best interests.

4.4 Assistance where child protection proceedings / involvement

Notwithstanding 4.1(a) above, in circumstances where a child protection authority is involved and is supportive of the applicant for legal assistance, making a court application for a parenting order under the Family Law Act 1975, Legal Aid Queensland may grant legal assistance to the extent necessary to secure the child's best interests.

Guideline 5 - Child maintenance and child support

5.1 Assistance for child maintenance - stage 1 matters

For the purposes of this guideline 5.1, a child maintenance matter is a stage 1 matter if:
1. it relates to a child born before 1 October 1989
2. the parents of the child:
  1. have never lived together, or
  2. separated before 1 October 1989, and did not resume living together, and
3. the child does not have a full blood sibling born on or after that date.
Legal Aid Queensland may make a grant of legal assistance for a child maintenance application to the Court under the Family Law Act 1975 to vary an order in a stage 1 matter.

5.2 Assistance for child support - stage 2 matters

For the purposes of this guideline 5.2, a child support matter is a stage 2 matter if it relates to:
1. a child born on or after 1 October 1989
2. a child born before 1 October 1989 whose parents separated after that date, or
3. a child who has a full blood sibling born on or after 1 October 1989.
Legal Aid Queensland may make a grant of legal assistance in relation to a Stage 2 matter for an application to a Court:
1. For leave under Division 3 of Part 7 of the Child Support (Assessment) Act 1989, or
2. For an order under Division 4 of Part 7 of the Child Support (Assessment) Act 1989.
The grant of legal assistance under guideline 5.2(2) should usually be limited to proceedings in State or Territory magistrates or local courts or the Federal Circuit Court of Australia unless such proceedings are unavailable.

5.3 Administrative Appeals Tribunal (AAT) Review of child maintenance and child support decisions

Legal Aid Queensland may make a grant of legal assistance for:

An application under the child support legislation to the AAT for review of a child support decision or child maintenance decision, or
An appeal under the child support legislation to a Court on a question of law from the AAT

If Legal Aid Queensland considers that circumstances exist that affect the person's ability to adequately represent himself or herself.

5.4 Assistance for applicant children

Legal Aid Queensland may make a grant of legal assistance to a child, including an adult child, seeking a child maintenance order, if Legal Aid Queensland is satisfied that the child is the most appropriate person to seek the order.

Guideline 6 - Spousal maintenance under the Family Law Act 1975

6.1 Assistance for applications for spousal maintenance

Legal Aid Queensland may make a grant of legal assistance for a court application under the Family Law Act 1975 for an order for spousal maintenance or to increase spousal maintenance, if:

the applicant for assistance cannot obtain the order by consent, and
the other party's whereabouts are known, or substituted service is likely to be successful, and
there is good reason to believe that the other party has the capacity, or is likely to have the capacity in the future, to pay spousal maintenance or increased maintenance (as the case may be), and
the applicant for assistance cannot obtain appropriate legal assistance from another source.

6.2 Assistance to defend applications for spousal maintenance

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance to defend a court application for spousal maintenance or for increased spousal maintenance, if:

it is unlikely that the court will make an order for the amount sought by the party making the court application, and
the applicant for assistance cannot adequately defend the court application without legal assistance.

6.3 Assistance for applications to reduce spousal maintenance

Legal Aid Queensland may make a grant of legal assistance for a court application to reduce the amount payable under a spousal maintenance order if the applicant for assistance cannot adequately prepare the court application without legal assistance.

6.4 Assistance to defend applications to reduce spousal maintenance

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance to defend a court application to reduce the amount payable under a spousal maintenance order if the applicant for assistance cannot adequately defend the court application without legal assistance.

Guideline 7 - Arrears of spousal or child maintenance or child support

7.1 Assistance for proceedings for arrears of maintenance or child support

Legal Aid Queensland may make a grant of legal assistance for court proceedings for payment of arrears of spousal or child maintenance or child support, if:

1. the applicant for assistance cannot adequately prepare the court application or present the case to the court without legal assistance, and
2. appropriate legal assistance cannot be obtained from another source, or
the applicant for assistance is also seeking the resolution of another family law matter by the court.

Guideline 8 Paternity

8.1 Assistance for proceedings relating to paternity of a child

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance who is seeking or opposing a finding of paternity by the court, or seeking an order for parentage testing, if:
1. Legal Aid Queensland's Child Support Unit or Service or some other appropriate service cannot assist, and
2. either party denies that the male party is the child's father, and
3. the male party's whereabouts are known, and
4. in a case where a finding of paternity is sought for child maintenance or child support matters, there is good reason to believe that the other party has the capacity to pay child maintenance or child support (as the case may be) for the child.
If a male applicant for assistance denies he is the father of the relevant child, Legal Aid Queensland should not make a grant of legal assistance unless the applicant gives Legal Aid Queensland adequate reasons to support the denial and agrees to submit to parentage testing.
Assistance may only be provided if the finding in relation to paternity is necessary for the determination of the substantive proceedings.
A grant of legal assistance for parentage testing should only be made on the condition that the applicant for assistance seek an order from the court for the costs of the testing, unless the other party to the proceedings is also receiving legal assistance under a grant of legal assistance.

Guideline 9 - Special medical procedures involving children

9.1 Assistance for parents

Legal Aid Queensland should make a grant of legal assistance to the parents of a child in any court proceedings relating to special medical procedures (including sterilisation) involving the child.
An application for a grant of legal assistance under this guideline 9 is not subject to the merits test.

Guideline 10 - Recovery, location and information orders

10.1 Assistance for recovery, location and information orders

Legal Aid Queensland may make a grant of legal assistance for proceedings under the Family Law Act 1975 for a recovery, location and/or information order relating to the location and/or recovery of a child.
A grant of legal assistance under this guideline 10:
1. should usually be limited to $3,000, and
2. should only be made on the condition that the applicant for assistance seek a costs order against the respondent to the court application, unless that party is also receiving legal assistance under a grant of legal assistance.

Guideline 11 - Divorce and nullity of marriage

11.1 Assistance for divorce or nullity of marriage

Legal Aid Queensland will not make a grant of legal assistance to an applicant for assistance for a court application relating to divorce or nullity of the person's marriage unless special circumstances exist and:

the court application is imperative, and

Example - An application may be imperative if the divorce or nullity would end continued harassment or ill-treatment of the applicant.
the applicant for assistance suffers particular hardship, or
An applicant may suffer particular hardship if it would be unreasonable to expect the applicant to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Service Priorities special circumstances applicant priorities.
certain aspects of the court application have a complexity warranting legal assistance, and because of this complexity it would not be reasonable to expect the applicant for assistance to conduct the proceedings.

Example - The following types of cases may warrant a grant of legal assistance: difficulties in proving the marriage a need to obtain recognition of an overseas dissolution a need for substituted service, or a need to dispense with service of the application.

Guideline 12 - Property

12.1 Assistance for certain property settlement disputes under the Family Law Act 1975.

Legal Aid Queensland may make a grant of legal assistance for the resolution of a property dispute under the Family Law Act 1975 only if:.
1. the estimated equity in the disputed property is more than $20,000 with an upper limit of $400,000
2. Legal Aid Queensland is satisfied from the material provided to it that the separation of the parties is final, and
3. the dispute relates to:
  1. property and/or
  2. funds from which the applicant for assistance may receive only a deferred benefit, such as superannuation benefits.
Notes: All assets involved in the property pool must be included in the assessment for a grant of legal assistance. Legal Aid Queensland will only provide assistance for property settlement provided the property pool includes at least one of the following assets:
- a home which is or was the former principal place of residence
- funds from which the applicant for assistance may receive only a deferred benefit such as superannuation benefits.
Legal Aid Queensland will not provide a grant of legal assistance for property settlement where the property pool includes any of the following:
- Businesses or commercial undertakings
- Significant amounts of savings which are available to the party to utilise for the purpose of legal fees
- Vacant and/or unimproved land (unless a contract has been entered into to build a home which was to be the matrimonial home), or
- Any investment properties regardless of value or equity held.
Ordinarily a grant of legal assistance will only be granted for the resolution of the dispute through participation in a FDR service.

Notes: Where the only issue in dispute is property (no children's issues) the LAQ FDR service response is Property Arbitration. These matters are not conferenced. Once children's issues are resolved (through conference or other means) Property Arbitration may be available to resolve the outstanding property settlement issues.
A grant of legal assistance for litigation for a dispute about property may only be made if:
1. the applicant for assistance is also seeking the resolution of another related family law matter, or
2. Legal Aid Queensland decides that it is appropriate to make a grant of legal assistance to the applicant for assistance because they are at risk of homelessness.
  
  Notes: Legal Aid Queensland does not fund related family law proceedings when an applicant has obtained legal assistance for property settlement on a private or speculative basis.
Where the dispute relates to the preservation of property and there is a risk that property will be disposed of which will result in the applicant for legal assistance becoming homeless then a limited grant of legal assistance may be made for injunctive relief.

Notes: For injunctive relief only, the upper value limit for property of $400,000 does not apply.

12.2 Assistance for certain property settlement disputes under the Family Law Act 1975.

ASSET POOL greater than $20,000 and less than $500,000

Legal Aid Queensland may make a grant of legal assistance for the resolution of a property only dispute under the Family Law Act 1975 where:
1. the estimated equity in the disputed property is more than $20,000 with an upper limit of $500,000 excluding superannuation (with no limit on superannuation) OR where the applicant for legal assistance's estimated total net claim is $250,000 or less of a greater equity amount),
2. Legal Aid Queensland is satisfied from the material provided to it that the separation of the parties is final,
3. the dispute relates to:
  1. property and/or
  2. funds from which the applicant for assistance may receive only a deferred benefit, such as superannuation benefits, and
  3. children's issues are not in dispute.
    
    Notes:
    
    If the dispute involves children’s issues, then Guideline 12.1 is to be applied. Funding under this guideline 12.2 is not available for property settlement where the property pool includes any of the following:
    - Businesses or commercial undertakings
    - Trusts
    - Significant amounts of savings which are available to the party to utilise for the purpose of legal fees.
    Ordinarily a grant of legal assistance will only be granted for the resolution of the dispute through participation in a FDR service and/or Arbitration program.
    
    A grant of legal assistance for litigation for a dispute about a property only dispute may only be made if Legal Aid Queensland decides that it is appropriate to make a grant of legal assistance to the applicant for assistance because they are at risk of homelessness.

Guideline 13 - Assistance after final court orders

13.1 Assistance not available

A grant of legal assistance is not available for any action undertaken after final orders in relation to a family law or child support matter have been made, except for the following types of matters under these Commonwealth Family Law guidelines:

applications to discharge or vary parenting orders in accordance with guideline 4.2
applications for recovery, location and/or information orders in accordance with guideline 10
appeals in accordance with guideline 14, and
enforcement of orders in accordance with guideline 15
variation of a child maintenance or child support order under guideline 5 or 6
in exceptional circumstances, limited ongoing work by an independent children's lawyer associated with or necessary for the implementation of orders.

Guideline 14 - Appeals

14.1 Assistance for appeals

Legal Aid Queensland may make a grant of legal assistance for an appeal in relation to a family law or child support order, including for the participation of an independent children's lawyer in an appeal, only if the matter is eligible for assistance under another guideline in these Commonwealth Family Law guidelines.
Legal Aid Queensland must take the provisions of the Federal Proceedings (Costs) Act 1981 into account before making a grant of legal assistance under this guideline 14.

Guideline 15 - Enforcement of court orders

15.1 Assistance for enforcement proceedings

Legal Aid Queensland may make a grant of legal assistance for court proceedings to enforce a final or interim court order relating to a family law or child support matter.
A grant of legal assistance under this guideline 15:
1. should usually be limited to $3,000, and
2. should only be made on the condition that the applicant for assistance seek a costs order against the respondent to the court application, unless that party is also receiving legal assistance under a grant of legal assistance.

Guideline 16 - Contempt of court and breach of court orders

16.1 Assistance for contempt of court or contravention of court orders

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance in relation to a family law or child support matter, to be dealt with for:

contempt of court, or
contravention of an order of the court.

Where the applicant is a respondent to court proceedings, in determining whether to grant legal assistance, Legal Aid Queensland should have regard to the severity of any penalty to which the person is likely to be subject.

Guideline 17 - International child abduction matters

17.1 Assistance in relation to international child abduction matters

Legal Aid Queensland may make a grant of legal assistance to an applicant for assistance to:
1. defend an application to the court under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) for:
  1. the return of a child who has been removed from a convention country to, or retained in, Australia, or
  2. access to a child who is living in Australia
2. make an application to the court under the Family Law (Child Abduction Convention) Regulations 1986 for a declaration that the removal of a child from Australia to a convention country, or the retention of a child in a convention country, is wrongful within the meaning of the Convention
3. make an application to the court under a bilateral agreement in relation to a child who has been wrongfully removed to Australia.
A grant of legal assistance is not available to an applicant for assistance to intervene in proceedings relating to the return of a child under the Convention.

Guideline 18 - Family law costs management

18.1 General

In this guideline 18:
- a family law or child support matter includes any dispute that involves the same parties about the same or substantially the same issue, if there has not been a material change in circumstances or if any such change would not materially affect existing orders
- costs cap means the costs limitations on a grant of legal assistance as set out in guidelines 10, 15 and 18.2 of these Commonwealth Family Law guidelines, and
- costs of a matter means the total costs paid by Legal Aid Queensland in a family law or child support matter in which a grant of legal assistance has been made (taking into account the costs paid by any other legal aid commission, if the matter has been transferred from one or more of the States or Territories), including counsels fees, fees for expert reports and other disbursements (except interpreter and translator fees, rural travel and accommodation costs), less any contributions collected by Legal Aid Queensland from the legally assisted person and any costs recovered by Legal Aid Queensland.
Legal Aid Queensland should treat the following proceedings as a new matter for the purposes of the Family Law Costs Management Methodology:
1. recovery, location and/or information order relating to the location and/or recovery of a child,
2. appeals,
3. enforcement proceedings.
The costs management principles in this guideline 18 apply to all grants of legal assistance made by Legal Aid Queensland for family law matters.

18.2 Limit on costs

Under a grant of legal assistance, payment of the costs of a matter under Legal Aid Queensland's usual fee scales for a party in a family law or child support matter regardless of whether legal assistance in the matter is provided in-house by Legal Aid Queensland or by an external service provider, is limited to $14,500.

18.3 If costs likely to exceed limit

Subject to guideline 18.3(2), (3) and (4), Legal Aid Queensland may increase the costs cap for a particular grant of legal assistance if, in its opinion, undue hardship would otherwise be caused to an applicant, having regard to the following factors:
1. whether the applicant for assistance has incurred significant additional costs due to special circumstances of a kind listed in the Commonwealth Legal Aid Service Priorities - Special Circumstances of the Applicant priorities.
2. whether it would be unreasonable to expect the applicant for assistance to adequately represent himself or herself due to special circumstances of a kind listed in the Commonwealth Legal Aid Service Priorities - Special Circumstances of the Applicant priorities.
3. whether the costs of the applicant for assistance have increased significantly through no fault of the applicant
4. the number and complexity of issues in dispute
5. the likelihood of risk to a child's safety or welfare.
Before making a decision under guideline 18.3(1), Legal Aid Queensland will have considered whether it is possible to contain costs by:
1. providing legal assistance for the matter in-house, or
2. considering whether alternative means of funding are appropriate, including negotiating a fee package that is not in accordance with Legal Aid Queensland's usual fee scales with an external service provider.
Any decision made by Legal Aid Queensland under guideline 18.3(1) to increase the costs cap for a particular grant of legal assistance should be subject to strict limits on costs, and the nature and extent of the additional cost will be determined by Legal Aid Queensland or agreed between Legal Aid Queensland and the external service provider (as appropriate) having regard to the following factors:
1. advice from the court and the parties about the estimated length of time required for the hearing of the matter
2. the number and nature of witnesses who must be called or cross-examined, and
3. whether the other parties to the matter have legal representation.

Guideline 19 Consent Orders

19.1 Assistance for consent orders

Legal Aid Queensland may make a grant of legal assistance for the preparation and filing of consent orders in any family law matter if:

The applicant is a vulnerable client, and
All of the parties involved in the matter agree on the arrangements, and
Legal Aid Queensland considers that formal orders are necessary, and
The applicant/s for assistance cannot obtain appropriate legal assistance from any other source.

Last updated 15 November 2022

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