Flexible Forum Test pilot

Flexible Forum Test pilot

From 1 July 2019, Victoria Legal Aid and Legal Aid NSW will be piloting a more flexible forum test.

The flexible forum test pilot arose from the Cross-border Justice Report which identified the need for VLA and Legal Aid NSW to work together more effectively to support the legal needs of people living along our shared border. The Report recommended trialling a more flexible approach to applying the existing forum test for border communities.

The pilot will run for a period of 12 months, at which point it will be evaluated.

What is the forum test?

The forum test was established in 1991. The aim of the forum test is to clarify which legal aid commission (LAC) is responsible for providing a grant of legal assistance to clients. While it is intended that the legal aid forum test would be applied consistently across all LACs, the way the forum test is worded at each LAC differs and gives the impression that the test is not uniform. This is particularly confusing for private practitioners who have panel membership in multiple states.

What is the change?

We are expanding the forum test guideline so that applicants for a grant of legal assistance that reside in the ‘cross-border buffer zone’ along the Victoria-NSW border will be either:

  1. assessed under the broader nationwide forum test to determine which legal aid commission is responsible for their grant of legal assistance and therefore which lawyers would be able to assist
  2. or, able to instruct a lawyer to assist them, provided the panel lawyer’s principal place of practice is also within the buffer zone and the lawyer is on VLA’s family law panel if the application is made to VLA or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW.

If option 2 is selected, the lawyer will apply to the LAC that they have panel membership for and apply for a grant of assistance for their client. his is regardless of whether the nationwide forum test is met.

Who qualifies under the flexible forum test?

To make an application under the flexible forum test, an applicant must meet all of the following conditions:

  1. they reside in a local government area (LGA) or law society area (LSA) along the Victorian and NSW border
  2. they are seeking a grant of assistance for a Commonwealth family law matter
  3. they have a Commonwealth family law matter that is being heard or going to be heard in either Victoria or NSW
  4. their lawyer is on VLA’s family law panel if the application is made to VLA or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW
  5. their lawyer’s principal place of practice is also in a relevant LGA/LSA.

Applicants who apply under the flexible forum test may apply to VLA or Legal Aid NSW for a grant of assistance, even if the matter is going to be heard in the other state, as long as their lawyer is on the family law panel if the application is made to VLA or on the Legal Aid NSW family law panel if the application is made to Legal Aid NSW.

Applicants must still meet relevant guideline, merit and means test requirements.

Example

A person living in Wodonga, Victoria, wants legal representation to respond to a family law matter being heard in Albury, New South Wales. The lawyer they want is also based in Wodonga and on VLA’s family law panel.

Under the flexible forum test, the person can apply to VLA for a grant of legal assistance even though the matter is being heard in NSW.

What is the cross-border buffer zone?

The cross-border buffer zone captures the local government areas (LGAs) and law society areas that sit along the border of Victoria and NSW respectively. These are listed under the forum guideline within the VLA Handbook for Lawyers.

What are the relevant LGAs/LSAs?

The flexible forum test applies to applicants living in the following LGAs/LSAs:

Victoria:

  • Mildura
  • Swan Hill
  • Gannawarra
  • Campaspe
  • Moira
  • Wangaratta
  • Indigo
  • Wodonga
  • Towong
  • East Gippsland.

New South Wales:

  • Wentworth
  • Balranald
  • Murray River
  • Berrigan
  • Federation
  • Greater Hume
  • Albury
  • Snowy Valleys
  • Snowy Monaro
  • Bega Valley.

What if an assisted person moves out of an eligible LGA/LSA?

Where an assisted person moves out of an eligible LGA/LSA while their matter is ongoing, the usual forum test will apply, and their grant of legal assistance will be reassessed.

More information

For queries about the flexible forum test, please email assignmentsfamilylaw@vla.vic.gov.au.

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