ALECOMM

Legal aid is available for proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) in certain circumstances.

5.16.1 Care and protection matters - alternative dispute resolution

Legal aid is available to people for dispute resolution conferencing and external alternative dispute resolution under the Children and Young Persons (Care and Protection) Act 1998 (NSW) when there are no current proceedings under that Act, if the applicant for legal aid has:

• parental responsibility for the child or young person, or
• from whom an aspect of parental responsibility for the child or young person has been removed by an order of the court.

For a grant of legal aid to be made in these types of matters the following tests need to be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meets Merit Test A, and
• the Availability of Funds Test, and
• it is reasonable to provide representation, and
• there are exceptional circumstances, and
• there is a benefit to the child or young person that might be gained by the applicant receiving legal aid. See Family Guideline 2.13 for further guidance.

See 5.16 for the policy which applies to children seeking legal aid for alternative dispute resolution.

5.16.2 Care and protection matters - alternate dispute resolution - for children

Legal aid is available to the child or young person (or a child representative appointed by the court) for dispute resolution conferencing and external alternative dispute resolution under the Children and Young Persons (Care and Protection) Act 1998 (NSW) where there are no current court proceedings.

For a grant of legal aid to be made in these types of matters the following test must be satisfied:

• the matter meets Merit Test A, and
• the applicant meets the Unpaid Contributions Test, and
• the Availability of Funds Test, and
• it is reasonable to provide representation, and
• there are exceptional circumstances.

5.16.3 Contact Dispute Mediation - for children and young people

Legal aid is available for attendance at a pre-litigation contact dispute mediation to a child or young person who is the subject or potential subject of an application under s 86(1A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).

There is no means test applied.

See Policy 11.4.3 for how Legal Aid NSW decides which legal representative will conduct the matter. 

5.16.4 Contact Dispute Mediation - for adults

Legal aid is available to an adult for attendance at a pre-litigation contact dispute mediation.

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and
• the matter meets Merit Test A, and
• the Availability of Funds Test, and
• it is reasonable to provide representation, and
• the applicant is at significant disadvantage.

See Policy 12.4.4 for how Legal Aid NSW decides which legal representative will conduct the matter.

5.16.5 External Care and Protection Mediation

Legal aid is available for external care and protection mediation to a person who has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW). 

For a grant of legal aid to be made in these types of matters the following tests need to be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and
• the Availability of Funds Test, and
• Legal Aid NSW is satisfied that the Court has referred the legal aid applicant to external care and protection mediation.

See 5.16.6 for the policy which applies to children in External Mediation.

5.16.6 External Care and Protection Mediation- for children

Legal aid is available for external mediation to a child or young person who has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

For a grant of legal aid to be made in these types of matters Legal Aid NSW must be satisfied that the Court has referred the chid or young person to external care and protection mediation.

There is no means test applied.

5.16.7 Care Circle Conferences for parties

Legal aid is available to a person for attendance at Care Circles Conferences, where the person has a grant of legal aid for current Children's Court proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

For a grant of legal aid to be made in these types of matters the following test must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and
• the Availability of Funds Test, and
• Legal Aid NSW is satisfied that the court has referred the legal aid applicant to the Care Circle Conference.

See 5.16.8 for the policy that applies to children in Care Circles.

5.16.8 Care Circle Conferences- for children

Legal aid is available to the child or young person (or a child representative appointed by the court) for attendance at Care Circles Conferences where the child or young person has a grant of legal aid for current proceedings under the Children and Young Persons (Care and protection) Act 1998 (NSW).

For a grant of legal aid to be made in these types of matters, Legal Aid NSW must be satisfied that the court has referred the legal aid applicant to the Care Circle Conference.

There is no means or merit test applied.

5.16.9 Care proceedings – legal aid for people who have parental responsibility or from whom an aspect of parental responsibility has been removed

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in the Children's Court and the legal aid applicant is a person:

• who has parental responsibility for the child or young person, or
• from whom an aspect of parental responsibility has been removed by order of a court.  

For legal aid to be granted the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meets the Availability of Funds Test.

Note: Before funding the grant of aid for a final hearing Legal Aid NSW must be satisfied that the legally assisted person has reasonable prospects of achieving a better outcome than that which has been proposed in the Care Plan. See Family Law Guideline 2.13.2 on how this aspect of the policy is to be applied.Legal aid for applications under this policy includes aid for any dispute resolution conference.

The grant of legal aid also extends to include any court ordered alternative dispute resolution. See 5.16.5 and 5.16.6 for policy that applies to the external care and protection mediation pilot.

5.16.10 Care proceedings - legal aid for children and young people

Legal aid is available to a child and young persons (or for a child representative appointed by the court) for care and protection proceedings in the Children's Court.

There is no means or merit test applied.

Legal aid for applications under this policy includes aid for any dispute resolution conference.

The grant of legal aid also extends to include any court ordered alternative dispute resolution. See 5.16.3 and 5.16.4 for the policy that applies to the external care and protection ADR pilot.

5.16.11 Proceedings in the Children's Court - post final orders - legal aid for parents

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1999 (NSW) in the Children's Court, where the legal aid applicant is a person:

• who has parental responsibility for the child or young person, or
• from whom an aspect of parental responsibility has been removed by order of a court.  

The types of matters which may be included under this policy are:

• applications for compulsory assistance orders
• application for variation or recission orders
• applications for sole parental responsibility by an authorised carer, and
• serious and persistent conflict matters where the applicant for legal aid is the applicant in the proceedings.
• applications for contact orders
• applications for guardianship orders

For legal aid to be granted in these matters the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meets Merit Test A, and
• the matter meets the Availability of Funds Test.

Legal aid is only available for contact order proceedings when:

• the legal aid applicant has attended mediation, or
• there are exceptional circumstances.

The grant of legal aid also extends to include any court ordered alternative dispute resolution. See 5.16.5 and 5.16.6 for the policy that applies to the external care and protection mediation pilot.

5.16.12 Care proceedings - legal aid for people who are significant to the child

Legal aid is available for care and protection proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in the Children's Court where the legal aid applicant is a person:

• who is significant to the care, welfare and development of the child, and
• who has a genuine concern for the safety, welfare and well-being of the child or young person.

For a grant of legal aid to be made in this type of matter the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meets Merit Test A, and
• the matter meets the Availability of Funds Test, and
• there is a benefit to the child or young person that might be gained by the applicant receiving legal aid.

See Family Guideline 2.13 for further guidance on how to apply the benefit to the child test.

Legal aid for applications under this policy includes aid for any dispute resolution conference.

The grant of legal aid also extends to include any court ordered alternative dispute resolution. See 5.16.5 and 5.16.6 for the policy that applies to the external care and protection mediation pilot.

5.16.13 Care proceedings in the District, Supreme and High Court – legal aid for adults

Legal aid is available for care and protection appeals in the District, Supreme and High Court to a person:

• who has parental responsibility for the child or young person, or
• from whom an aspect of parental responsibility has been removed by an order of a court, and
• to people with a genuine concern for the safety, welfare and well-being of the child or young person.

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meets Merit Test A, and
• the matter meets the Availability of Funds Test, and
• there is a benefit to the child or young person that might be gained by the applicant receiving legal aid.

See Family Guideline 2.13 for further guidance on applying the benefit to the child test.

Legal aid for applications under this policy includes aid for any dispute resolution conference.

The grant of legal aid also extends to include any court ordered alternative dispute resolution. See 5.16.5 and 5.16.6 for the policy that applies to the external care and protection mediation pilot.

5.16.14 Care proceedings in the District, Supreme and High Court – legal aid for children

Legal aid is available for care and protection appeals in the District, Supreme and High Court to a child or young person (or a separate representative appointed by the court).

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the matter meet Merit Test A, and
• the matter meets the Availability of Funds Test.

Legal aid for applications under this policy includes aid for any dispute resolution conference.

The grant of legal aid also extends to include any court ordered alternative dispute resolution.

5.16.15 Supreme Court proceedings pursuant to the Court's inherent jurisdiction – legal aid for adults

Legal aid is available in relation to proceedings for prerogative relief or pursuant to the Supreme Court's inherent jurisdiction.

Legal aid is available to a person:

• who has parental responsibility for the child or young person, or
• from whom an aspect of parental responsibility has been removed by an order of a court,

or

• who is significant to the care, welfare and development of the relevant child or young person, and
• with a genuine concern for the safety welfare and well-being of the child or young person.

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meet Merit Test A, and
• the matter meets the Availability of Funds Test, and
• there is a benefit to the child or young person that might be gained by the applicant receiving legal aid.

See Family Guideline 2.13 for further guidance on applying the benefit to the child test.

5.16.16 Supreme Court proceedings pursuant to the Court's inherent jurisdiction - legal aid for children

Legal aid is available to children and young people in relation to proceedings for prerogative relief or pursuant to the Supreme Court's inherent jurisdiction

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the matter meet Merit Test A, and
• the Availability of Funds Test.

5.16.17 Proceedings in the Administrative and Equal Opportunity Division of NCAT – legal aid for authorised carers

Legal aid is available for proceedings in the Administrative and Equal Opportunity Division of NCAT for a review of a decision to:

• authorise or not to authorise a person as an authorised carer
• cancel or suspend a person's authorisation as an authorised carer,or
• grant to, or to remove from an authorised carer the responsibility for the daily care and control of the child or young person.

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the matter meet Merit Test A, and
• the Availability of Funds Test, and

Legal Aid NSW must be satisfied that:

• there are exceptional circumstances and
• it is reasonable to provide representation, and
• there is a benefit to the child or young person that might be gained by the applicant receiving legal aid.

See Family Guideline 2.13 for further guidance on applying the benefit to teh child test.

5.16.18 Proceedings in the Administrative and Equal Opportunity Division of NCAT - legal aid for children

Legal aid is available to children and young persons for proceedings in the Administrative and Equal Opportunity Division of NCAT where an order for separate representation has been made, for a review of a decision to:

• authorise or not to authorise a person as an authorised carer
• cancel or suspend a person's authorisation as an authorised carer, or
• grant to, or to remove from an authorised carer, the responsibility for the daily care and control of the child or young person.

For a grant of legal aid to be made in these types of matters the following tests must be satisfied:

• the matter meets Merit Test A, and
• the Availability of Funds Test.

5.16.19 Compulsory schooling order matters – for parents

Legal aid is available to parents for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court.

For legal aid to be granted in these types of matters, the following tests must be satisfied:

• the applicant meets the Means Test, and
• the applicant meets the Unpaid Contributions Test, and  
• the Availability of Funds Test.

5.16.20 Compulsory schooling order matters – for children

Legal aid is available to children for proceedings in relation to compulsory schooling order matters under the Education Act 1990 (NSW) in the Children's Court, where the order is directed at the child (as opposed to the parent).

For legal aid to be granted in these types of matters, the following tests must be satisfied:

• the Availability of Funds Test.

Source : http://www.legalaid.nsw.gov.au/for-lawyers/policyonline/policies/5.-family-law-matters-when-legal-aid-is-available/5.16.-care-and-protection-matters#5.16.17%20Proceedings%20in%20the%20Administrative%20and%20Equal%20Opportunity%20Division%20of%20NCAT%20%E2%80%93%20legal%20aid%20for%20authorised%20carers

Date Last Published: 01/06/2015