Facts about family law

We've gathered some facts to help people better understand family law at Victoria Legal Aid.

Fact 1 – Family-related legal matters are a huge part of the work we do

In 2015–16, Victoria Legal Aid (VLA) helped 31,302 people with their family and children’s law issues.

This included legal advice, help from a duty lawyer at court, grants for a lawyer to advise and represent people in mediation at VLA’s Family Dispute Resolution Service and grants for a lawyer to advise and represent people at court.

When it comes to ongoing legal advice and representation, almost 40 per cent of all legal aid grants during this period were for family and children’s law.

The 2016–17 data hasn’t been finalised yet, but is looking pretty similar.

Fact 2 – Legal aid is not just for parents

Most family law legal aid grants go to parents who can’t agree about parenting after separation, but legal aid is also available for other kinds of family law issues, for people other than parents and for different kinds of legal services.

The law says Victoria Legal Aid (VLA) must use legal aid money in an 'efficient and equitable' way. Our grant guidelines are the way we make sure we help the people who need it most, based on their financial situation, their legal problem and their individual circumstances. Funding for court hearings is for the most serious and urgent matters.

Who can get grants of a id and for what

We help with these family law issues governed by federal law:

• disputes about children’s living arrangements
• property or financial disputes if there are also children’s issues to be resolved
• location and recovery of children removed from their parents’ care, including in some international child abduction matters (sometimes called 'Hague convention' matters)
• determining who the parents are
• child support and child maintenance
• spousal maintenance
• special medical procedures for children
• appeals.

To be eligible for a grant of aid for any of these issues, there must be a ‘substantial issue in dispute’. For example, in disputes about children’s living arrangements, there must be something more than a disagreement about where the child spends their birthday or who pays for the petrol when they travel to the other parent’s place.

Aid is also available in family-related legal matters under state law. These include:

• child protection matters
• family violence intervention order cases
• adult guardianship and administration matters
• adoption.

What’s your role?

People who are not parents can sometimes get legal aid too. This includes grandparents and other family members or other significant people in children’s lives.

Children can sometimes have an independent children’s lawyer representing their interests or can be represented as a party.

Legal aid can also be provided to children and people other than parents for child protection and family violence intervention order matters.

The personal and financial circumstances of a person are important when deciding if they will get legal aid. Depending on the kind of dispute they need help with, we prioritise helping people who meet our means test and who also face particular disadvantage because of disability, cultural or language barriers, or other personal vulnerabilities. Children don’t have to meet the means test or any other financial criteria.

What kind of help do you need?

As well as getting advice over the phone and from a duty lawyer at court, it’s possible to get legal aid for a lawyer to give you advice and negotiate on your behalf, to represent you at a mediation session at VLA’s Family Dispute Resolution Service (FDRS), and, if the dispute still isn’t resolved, to represent you at court, including in trials.

Fact 3 – An unfavourable family report does not determine whether you get funding for a family law trial

Victoria Legal Aid applies a merits test to applications for legal aid. This means if your lawyer doesn’t think your case has legal merit, you can’t keep getting legal aid. The family report is an important piece of evidence that helps your lawyer decide about the legal merit of your case, but it's not the be-all and end-all. Your lawyer will consider the report in light of your instructions and other evidence.

Remember, you can always ask for an independent review of a decision to refuse you aid.

Fact 4 – Family-related legal matters: our clients are about 50:50 men and women

Our statistics show that the gender split in family and children’s law assistance is pretty even – in 2015–16, 51.6% of legal aid family and children’s law clients were men and 48.3% were women.

This doesn’t include telephone advice and information accessed through Legal Help. The 2016–17 data hasn’t been finalised yet, but it’s looking pretty similar.

However, it’s not about gender. All people who apply for legal aid assistance must satisfy the same eligibility criteria. What’s important is that aid is available for the most vulnerable people and/or the most serious cases especially those affecting children.

Fact 5 – Both parties in a family law dispute can get legal aid

You and your ex can get legal aid at the same time. It’s true that you can’t both use the same law firm, but you can both get legal aid – just from different sources.

Legal aid services can be provided by Victoria Legal Aid staff lawyers, private lawyers and some community legal centres, so it’s possible for both parties to have a lawyer without there being a conflict of interest.

Fact 6 – All lawyers providing legal aid services apply the same eligibility criteria

The family law guidelines and the notes that explain how to interpret the guidelines are clearly set out and publicly available online. We are committed to transparency in our eligibility criteria and assessment processes.

All lawyers providing legal aid services – VLA staff lawyers, private lawyers and community legal centre lawyers – must comply with the guidelines. No one can bend the rules. There are compliance checks to make sure they comply.

No matter who your lawyer is, you can also apply for legal aid for matters that fall outside the guidelines:

• where there are special circumstances relating to the matter, or
• in public interest and strategic litigation cases.

Fact 7 – We have re-written the family law guidelines to make it easier to understand and apply for legal aid

The family law guidelines have been re-worded to make them clearer, more consistent and easier to use. Apart from some minor expansions, eligibility for legal aid hasn’t changed. There won’t be any fewer people who qualify for aid as a result of the changes.

Fact 8 – Legal aid is targeted at those who most need it, not aimed at giving people an unfair advantage

We don't take sides when deciding who we assist.

With finite funds, we can’t help everyone but we try to help as many people as we can. We try especially hard to provide help in cases that have serious impacts for the children in those families.

Our grants of aid focus on helping those who need it most based on their financial situation, their legal problem and their individual circumstances.

Our means test is the way we make sure that those least able to afford a lawyer get the help they need. We are currently reviewing our means test to make it as fair as possible.

Remember, where both parties are eligible, it’s possible for both to get a grant of legal aid (see Fact #5).

While you have to meet the means test to qualify for legal aid, you are not automatically disqualified if you have a job or own a house, but we may ask you to pay a contribution towards your legal costs. We also apply conditions and restrictions to grants of aid as part of our costs management strategies. As is the case for most people paying their own legal fees, funding under a grant of aid needs to be prudent and sensible. We have to be even more careful at Victoria Legal Aid because we are spending public money.

Fact 9 – You can still get legal aid if you’ve breached a family violence intervention order

Until 30 October 2015, you couldn’t get legal aid for family law if you had breached a family violence safety notice or intervention order in the last 12 months. This has changed. The rule was removed to help protect the safety of victims of violence in legal proceedings.

However, you can’t get legal aid if you have breached a federal family court order in the 12 months before you apply for legal aid (see the contravention test). This is because we think if you are getting legal aid for family law issues, you should be complying with any family law orders in your case.