Eligibility for Legal Aid

Each application for legal aid is assessed by applying these tests:

the means test, which also assesses the contribution your client must make towards the cost of the case
the merits tests, and
the guidelines test.

To be successful, an application must pass all three tests.

Means

What the means test takes account of
General Definitions
Income
Assets
Commercial activities/lifestyle
Maximum allowable deductions/equity
Continuing review of means

What the means test takes account of

The means test takes account of

income
assets, and
commercial activities and lifestyle

including those of any financially associated person as well as the applicant. In other words, it considers all possible means that an applicant may have to pay for the legal services he or she requires.

The test takes into account funds received but not now available to the applicant or any financially associated person that could have been used to pay for their case. If the applicant has dissipated these funds without making provision for payment of their legal expenses, aid may be refused.

Income and assets are assessed separately, and the applicant must be eligible on both to qualify.

The means test also fixes the amount of the contribution the aided person must pay initially. If the case continues and becomes more expensive, further contributions may be required, and we will notify you and your client of this by letter. For further information about contributions, see Early assessment of contributions, Collecting the client's contribution, and Contributions .

The means test identifies three groups of applicants:

1 Those who are eligible on means straight away

If otherwise eligible (ie on guidelines and merit), people who are eligible on means get aid from the date the properly completed application is received, subject to payment of a contribution.

2 Those who are not eligible on means at this time, but who may become eligible in future, if their case is not readily resolved

For example, we may think they have some capacity to pay for the legal services they presently require, but not for a longer or more complex case, should it develop into such. Or we may think that they can afford to pay for a guilty plea, but not for a trial.
In these cases we work out what we think the person can afford to pay. They will be told this amount. If the case is not resolved after they have spent the assessed sum, they should reapply, sending in proof of what they have spent. We will review their eligibility at this time, and let them know whether they are now eligible or not. They should not assume that they will automatically get aid when the contribution is spent, as they will still have to pass each of the eligibility tests at that time.

3 Those who are not eligible on means for aid for this matter at all.

General definitions

Some of the terms used in assessing income and assets are defined below.
The applicant
Financially associated persons
Trusts
Dependants
Child care costs

The applicant

An applicant may be a person, or the executor, trustee or representative of the person.
Where the applicant seeks aid for an action in their capacity as executor, trustee, or representative of another person or a group, the means test is applied to all persons who stand to benefit from the legal services sought.
In cases where an applicant seeks aid for a test case or common interest claim, the means test is applied to the applicant, and also to apparent other sources of support which may be relevant if the individuals who stand to benefit can afford to collectively fund a test case and would be likely to do so if legal aid were not available.
Aid is not available to corporations or incorporated associations. In the case of groups, however, a waiver of guidelines may be sought. In these cases, the means test considers all sources of funding, including
- the means of the group
- the means of the individuals in the group, and
- potential financial support of community members likely to support the aims of the group.
Aid may be available to individual members of a group or association, but as individuals, not as representatives of the group.
Financially associated persons
The means of financially associated persons are included in the test because our Act requires us to find out whether there is any way the applicant can reasonably afford to use private, rather than public funds, to pay for his/her legal representation. Being able to pay for your own legal representation includes being able to obtain assistance from someone else, who could normally be relied upon to assist you financially on such occasions, when you can't pay for it yourself.
A 'financially associated person' means any person or entity who/which
- provides financial support to the applicant
- receives financial support from the applicant, or
- could reasonably be expected to financially assist the applicant.
It can include a spouse, de facto partner, same-sex partner, parent, child, other relative, trust, company or partnership, corporation or other person, entity or group. If you are in doubt whether a person is financially associated with another, send in the details and we will let you know.
The income and assets of a financially associated person must be declared and documentary proof of their means provided. Even if you think the financial association will be disregarded by us, it should still be disclosed, together with the reasons why you say it should be disregarded. Some of the reasons we may disregard the means of financially associated persons are:
- where they are now separated from the applicant and it is not reasonable to expect any support
- where the financially associated person has a contrary interest in the case
- where disclosure of the application for aid could damage the applicant's interests, or
- where, for other special reasons, the financial association should be disregarded.
Trusts
The Commission will consider the trust structure. If it finds that
- the applicant or financially associated person has or had effective control of the trust, or
- the trustee provides, has provided or probably would on request provide, financial support to the applicant or financially associated person,
  then the trust will also be means-tested.
The Commission may look at
- the legal structure of the trust
- who has the power to appoint and remove trustees and beneficiaries
- the history of transactions, such as previous distributions
- any changes of trustee
- any changes of beneficiaries
- the source(s) of trust income.
If the applicant or financially associated person has a higher standard of living than the disclosed means would permit, support from the trust may be inferred.
Dependants
Dependants include:
- a spouse, de facto or same-sex partner residing with the applicant, whether they have their own income or not
- children or step-children living with the applicant substantially supported by the applicant or their spouse, and who do not have their own income.
Child care costs
Child care costs means costs actually incurred for family day care or creche for the period actually necessary for the parent to work or study. They do not include the cost of "respite" or elective child care.

Income

Income means any source of funds received by the applicant or a financially associated person.

Funds usually treated as income
Funds not usually treated as income
A child's income
Income testing
Deductions

Funds usually treated as income

These include:
- pensions, benefits and allowances from any source
- income from any paid work, including overtime, shift and penalty pay
- commissions and allowances
- royalties, licence or copyright fees, or other proceeds of intellectual property
- periodic receipts such as dividends, interest, instalments of debts, etc
- board or rent received (note that where board is received, a deduction is allowed as if the boarder were a dependant)
- maintenance received
- lump sum payments such as compensation (including workers compensation or other insurance payments), superannuation, annuity payments, retrenchment pay or like sums where the applicant asks for it to be treated as weekly income. (Unless this happens, it will normally treated as a lump sum). For example, where neither the applicant nor the financially associated person is employed, and where the payment has resulted in the application of a preclusion period under Part 17 of the Social Security Act, the applicant for the duration of the preclusion period is deemed to be earning average weekly earnings, assessed as income.
- lump sum child support or spouse maintenance received by the applicant, if the applicant is receiving a pension or benefit at a reduced rate due to receipt of this sum.
Funds not usually treated as income
These include:
- · minimum family payment (but note that family allowance supplement is treated as income)
- · reasonable business expenses/overheads incurred in earning a living. However, the fact that the expenses have been allowed as tax deductions is not conclusive for legal aid purposes.
A child's income
If the child is supporting him or herself, or receiving a social security benefit in their own right, their income is assessed as described in Funds usually treated as income.
If the child is financially supported by a parent or guardian, the income of that person or those persons is assessed.
However, the parent's or guardian's income may be disregarded if:
- he or she has a contrary interest in the case
- disclosure of the legal aid application to them would damage the child's interests
- he or she cannot or will not financially assist the child.
Again, the income of the parent or guardian (as a financially associated person) should still be disclosed, even if you think it will be disregarded.
Income testing
Income testing is conducted by calculating the applicant's and any financially associated person's total income and allowing certain deductions. A sliding scale is applied to the balance to determine whether the applicant is eligible for aid and what contribution is payable.
Deductions
The deductions allowed are:
- income tax
- Medicare levy
- rent or mortgage on place of residence (paid or up to a maximum ceiling based on the median private rent for a two bedroom flat in Adelaide), or half board (on the basis that some of the board relates to cost of support rather than accommodation)
- council and water rates on place of residence
- child care costs necessary to enable the parent to work or study
- deemed cost of supporting dependants
- child support payments made in respect of persons who do not live with the applicant (up to the dependant ceiling)
- spouse maintenance payments (up to the dependant ceiling)
We do not necessarily allow the actual amount which the applicant spends on these items. Our test allows only a reasonable sum for each item. This will be the amount actually spent, or the allowable maximum, whichever is lower. Allowable maxima are based on actual average costs by reference to various indices.
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Assets

What is taken into account
Disregarded assets
Excluded assets
A child's assets
Assets testing

What is taken into account

All the assets of the applicant and any financially associated person are taken into account and must be declared.
Assets include anything in which the applicant or the financially associated person has a legal or equitable interest. They may include items not registered in that person's name. If the asset is owned jointly or in common, ownership can be apportioned accordingly.
Assets include lump sums received by the applicant or the financially associated person that do not prevent the applicant drawing a Centrelink benefit (as opposed to the types of lump sum payments categorised as excluded assets below). Examples may include payments such as compensation (including workers compensation or other insurance payments), payments from accessible superannuation funds, annuity payments, retrenchment pay or like sums.
Disregarded assets
The assets of a financially associated person may be disregarded where
- they are now separated from the applicant and it is not reasonable to expect any support
- the financially associated person has a contrary interest in the case
- disclosure of the application for aid could damage the applicant's interests, or
- for other special reasons, the financial association should be disregarded.
These assets must still be disclosed but you may wish to give reasons why they should be disregarded.
Excluded assets
The following assets do not normally preclude a grant of aid, although they must still be declared:
- ordinary household furniture, clothing and personal effects that a person would reasonably need
- tools of trade, unless of exceptional value
- equity in motor vehicle, up to a maximum based on the published re-sale figures for a 5 year old 6 cylinder family car. Where the applicant lives in a household of two or more, and both incomes are assessable under our test, combined equity in two vehicles will be allowed, up to the maximum.
- equity in the applicant's or financially associated person's principal home, up to a maximum, based on the amount equal to the median value of an established home in Adelaide. This includes any kind of accommodation (even caravans, boats, etc) owned wholly or partly by the applicant and in which the applicant actually lives, and land on which they are building a home where they intend to live.
- equity in a farm or business which is the main source of the applicant's income, up to a maximum based on assets limits set under the pensions assets test.
Of course, any equity in real estate will give rise to a statutory charge.
An asset which would normally be excluded may be taken into account if it appears likely to be sold during the case, or will otherwise yield funds from which the applicant could pay for legal representation.

A child's assets. Children's assets are assessed as follows:

if the child is supporting him or herself, or receiving a social security benefit in their own right, their assets as above
if the child is financially supported by a parent or guardian, the assets of that person or those persons.

However, the parent's or guardian's assets may be disregarded if:

he or she has a contrary interest in the case
disclosure of the legal aid application to them would damage the child's interests,
he or she cannot or will not financially assist the child.

Again, the assets of the parent or guardian (as a financially associated person) should still be disclosed, even if you think they will be disregarded.

Assets testing

Equity in all assets, other than in those that are excluded (see Excluded assets), is assessed. A sliding scale is applied to determine whether the applicant should pay any and what asset contribution. After allowable assets have been deducted, the first $3000 yields a contribution of $1350, and after that $3000, the remaining assets are assessed dollar for dollar.
Debts may not normally be set off against assets unless secured over them by registrable instrument. Ordinarily, debts are only relevant when considering whether an applicant is in a situation of special hardship.
All sources of financial support are considered, including assistance which might be available from any financially associated person on request. Ability to borrow is also considered. To the extent that a person is considered able to raise funds, borrow, or obtain credit, they will be expected to do so and aid will be refused. Legal aid is a funding source of last resort.

Commercial activities/lifestyle

These may be taken into account along with the disclosed means. If the Commission considers that the applicant or financially associated person can or should be able to afford to pay privately by reason of these, aid may be refused.

Maximum allowable deductions/equity

The maxima allowed for various items in the means test are derived from the Henderson Poverty Line, published by the Institute of Applied Economics and Social Research, University of Melbourne from time to time, and other indices. All maxima are reviewed each January and July, based on the figures for the preceding September and March quarters.

Income
Housing costs
Child care
Dependants
Maintenance
Home equity
Equity in farm or business
Vehicles
Allowable assets

Income

We use the Head in workforce, cost other than housing, single person indicator set out in Table 1 of the Henderson Poverty Line tables.
Housing costs
Average rent of a two bedroom flat in Adelaide by reference to the Real Estate Institute (REI) moving median rental index.
Child care
The childcare relief figure set by Commonwealth Department of Health and Community Services, up to a maximum of 50 hours per week.
Dependants
First dependant - the difference between the Head in workforce, cost other than housing, single parent plus one and Head in workforce, cost other than housing, single person figures, from the Henderson Poverty Line tables.
Second and subsequent dependants - the difference between Head in workforce, cost other than housing, single parent plus two, and Head in workforce, cost other than housing, single parent plus one figures, from the Henderson Poverty Line tables.
Maintenance
As for dependants.
Home equity
Median price of established home in Adelaide, by reference to REI moving median index.
Equity in farm or business
Assets test used by Centrelink to determine eligibility for full benefit or allowance, as follows
- where the applicant or any financially associated person owns a farm in their sole name, the test applies to the whole property less the value of the home and the surrounding 5 acres. An amount up to the Centrelink limit is allowed.
- where the applicant or any financially associated person owns a farm jointly with someone else who is not a financially associated person, the test applies to the whole property less the value of the non-financially associated person's interest.
Vehicles
Average price of a five year old 6 cylinder family car, as set by the RAA.
Allowable assets
This figure is set and updated in accordance with the weighted average of the Consumer Price Index/Average Weekly Earnings. There is a different allowance for single persons and those with dependants.

Continuing review of means

Although the means test is carried out before aid is granted, means are always under review. To continue to receive aid, the aided person must continue to satisfy the means test throughout the grant of aid. It is a condition of the grant of aid that the aided person will keep the Commission informed of any changes in their financial circumstances (see Conditions of aid).

Notifying the Commission of changes in means
How to report changes in means
Consequences of review of means

Notifying the Commission of changes in means

For example, the Commission must be notified if the aided person or their financially associated person
- takes up any employment
- forms a financial association with any other person or entity (including by marriage, commencement of a de facto relationship, joining a partnership, becoming a beneficiary of a trust, etc)
- inherits or becomes entitled to inherit anything of value
- starts any business or becomes self-employed
- travels overseas
- wins money or any valuable item in a lottery or competition
- receives any valuable gift
- raises any loan
- becomes entitled to any settlement or award of compensation or damages
- acquires or expects to acquire funds from the sale of any valuable item, or
- receives financial assistance from any other person or entity.
These are just examples. Any change in circumstances must be reported.

How to report changes in means

To report a change in circumstances, the aided person should complete a current financial statement and submit it together with relevant documents to the assigning officer, who will review eligibility. This may result in aid continuing unchanged, continuing subject to an increased contribution, or to costs recovery or other conditions, or it may result in aid being stopped.

Consequences of review of means

If aid is stopped or the conditions of aid are varied as a result of such review, the aided person, if dissatisfied, may appeal against this decision in the usual way.
If it is discovered that an aided person has misrepresented their financial situation to the Commission, legal action may be taken.

Merit
Aspects of the merits test
Your obligations with regard to merit

Aspects of the merit test
Legal aid is only available for matters which we consider have merit. Merit may change as a matter progresses, as a result of new evidence, changes in the law and decisions of the court, so it is kept under constant review. If a matter which we have funded loses merit, aid may stop, or may be confined to some particular purpose, such as negotiating a resolution.

There are three aspects to the merits test which the applicant must satisfy:

reasonable prospects of success
the prudent self-funding litigant
proper use of public funds.
Reasonable prospects of success
The case must have at least reasonable prospects of success. An even or 50/50 chance is not enough. The exception is serious criminal cases for trial in the District or Supreme Courts, where a reasonably arguable defence will do.
In High Court cases, the Commission has adopted the following merits test:
'Where legal assistance is sought for the hearing of an application for special leave to appeal to the High Court of Australia, aid will be approved where the Director, having consulted with either Chief Counsel for the Commission or such other appropriate counsel, is of the opinion that there is a point of law, which is reasonably arguable, in a case appropriate to be put to the High Court.'
The prudent self-funding litigant
The case, if successful, must produce a real benefit to the aided person, such that the "ordinarily prudent self-funding litigant" would risk their own funds for in this case. For example, aid will not be granted where:
- the cost of the case will outweigh the benefits
- the applicant wants to defend a claim, but has nothing of substance to lose
- the applicant wants to sue for money, but the other party will not be able to pay, or
- there is no real likelihood of enforcing orders obtained.
Legal aid is only meant to put the aided person in an equal position to the person of means, not in a better position.
Proper use of public funds
The case must be a proper use of public funds. These funds are stringently limited and very much in demand. Aid will therefore only be granted where we consider that it is really needed and will be applied to a deserving and proper purpose. For example, aid will not be granted where
- the dispute is trivial, or is minor in proportion to the cost
- it is not fair that the public should pay for the case, such as where a parent wants to take a child on an overseas trip, and seeks court orders for a passport
- there is little or no evidence to support the case, and aid is sought to make wide-ranging enquiries just in case some evidence should come to light
- the case is vexatious
- the applicant's purpose is merely to delay, harass or frustrate the other party, or avoid proper obligations
- the applicant's purpose is to vindicate their reputation, or contradict another party's evidence, where this will make no practical difference to the outcome of the case.

Your obligations with regard to merit
Legal and professional duty
Applying for Aid
Reporting during the case

Legal and professional duty

The Legal Services Commission Act requires you to tell the Commission anything that is relevant to your client's grant of aid (s.22). The Professional Conduct Rules specifically state that if you think the case no longer has reasonable prospects of success, you must tell the Commission (Rule 12). A lawyer acting under a grant of aid is under a legal and professional duty to tell the Commission these things even though this may result in aid being stopped, and even though the client may not wish you to do so.
Please note that what you write to us by way of this or any other report may later become available to your client under the Freedom of Information Act.

Applying for aid

There are two ways in which in assisting a client to apply for legal aid you can indicate to the Commission your opinion on the merit of the case:
If the client wishes, you may send, with the application for aid, a letter which sets out your views on the merits of the proposed legal action. This will be considered, together with all other relevant material, in assessing the application.
If you believe the case has merit, you should sign the solicitor's certificate in the application form. While the application will be accepted whether the solicitor's certificate is signed or not, we may assume when the certificate is left blank that you were not satisfied as to merit.

Reporting during the case

Throughout the case, you report to the Commission about how the case is progressing and about merit. Continued aid depends on continued merit, and we will stop or limit aid to a case which no longer has merit. You must supply to the Commission any information and documents requested, eg key documents such as expert reports and court orders.
There is no confidentiality between you and your client when it comes to reporting to the Commission about means or merits, or other matters relevant to the grant of aid (see s.22 of the Legal Services Commission Act and Rule 12 of the Professional Conduct Rules).

Guidelines
As well as passing the means and merits tests, an application for aid must satisfy the guidelines for legal aid, which are applied in three ways:

general principles under the Commission Guidelines and the Commonwealth Guidelines and Priorities.
funding caps (according to whether the matter is State or Commonwealth, and the type of matter)
the forum test (according to where the matter is to be heard).

Commission guidelines
The Commission sets its own guidelines from time to time. These apply to matters arising under State law and, where not covered by the Commonwealth Guidelines, to matters arising under Commonwealth law. The Commission may depart from or waive these guidelines in exceptional cases.

The guidelines are designed to ensure that

the limited funds available for legal aid are directed to the areas of greatest need
aid is not granted in cases where it is not really necessary because:
- there is some other possible source of funding, or
- the case could be handled by some other agency or service, or
- it would be reasonable to expect the applicant to represent him- or herself.

There are two types of Commission guidelines, the general principles which apply across the board in determining whether a case should get aid (the general guidelines), and a list of matter types which are specifically excluded from grants of aid (the specific guidelines).

The general guidelines
Aid will not be granted in the following circumstances:-

(a) Where there is some other funding source, such as

where the applicant can expect to recover damages, compensation, costs or any sum of money from the case, such that the case is self-funding or the lawyer should act in expectation of payment in due course. In this context, the applicant should apply to the Law Society's Litigation Assistance Fund or Disbursements Only Lending Scheme
where the case will involve the sale of a valuable asset, from the proceeds of which the case could be funded
· where there is any other fund from which the costs can otherwise be met, as in the case of litigation over a deceased estate, or statutory provision for funding, as in cases of representation of protected persons in certain appeals before the Administrative Appeals Court
where the applicant engages in commercial activities or maintains a lifestyle such that we consider that they can or should raise funds privately.

(b) Where we think the costs of litigation of a dispute outweigh the benefits, or where another agency or service may assist with this litigation, such as

Welfare Rights Centre (disputes over eligibility for social security benefits and appeals to the SSAT)
Department for Family and Youth Services (adoption and spousal maintenance applications)
Working Women's Centre, or a trade union (unfair dismissal applications),
Equal Opportunity Commission or Human Rights and Equal Opportunities Commission (discrimination and human rights cases)
Environmental Defenders Office (environmental law matters)
Police Complaints Authority (complaints against police)
Legal Practitioners Conduct Board (complaints about lawyers' conduct, conciliation of disputes over their bills)
Ombudsman (complaints about government agencies, public health facilities, local councils, declined Freedom of Information requests, etc)
Telecommunications Industry Ombudsman (telecommunications complaints)
Banking Ombudsman (complaints about the actions of financial institutions)
Insurance Enquiries and Complaints Ltd (disputes between insurers and their own insureds over decisions on claims)
Office of Business and Consumer Affairs (disputes over consumer purchases, commercial practices, etc)
Community legal centres (neighbourhood mediation)
the Commission's Child Support Unit (advice and assistance for parents with all child support issues)
Public Trustee (drawing wills).
Of course, if the other service or agency is unable to assist in the particular case, the applicant should provide details of this in their application for aid.
(c) Where it would be reasonable to expect the applicant to represent him- or herself.
These include cases where the court or tribunal concerned commonly deals with self-represented litigants (such as minor claims, residential tenancies and unfair dismissal matters).
Specific guidelines
For similar reasons, aid is not normally granted in the following specific types of cases:
commercial cases - including disputes over failed businesses and business debts, guarantees, liquidations, directors' liability, contracts, commercial mortgages, sale and purchase of businesses, etc
compensation cases - including claims for injuries caused by traffic accidents, medical or dental negligence, work injuries, criminal injuries, unsafe premises and claims for loss due to professional negligence.
complaints against professionals or police (contact the relevant professional body or authority)
conveyancing
criminal cases where there is no real chance of gaol
defamation
expensive criminal cases where it is obvious from the outset that the cost of defence will exceed the maximum that we can spend
minor civil actions, ie. where less than $6000 is in dispute
neighbour disputes - including fences, trees, noise, car parking, water run-off, etc (try the local neighbourhood mediation service)
probates, administrations and claims on deceased estates
restraining orders - civil (police domestic violence services, or the Commission's domestic violence worker will assist applicants for orders), or
unfair dismissal cases.
In practice, this means that in matters arising under State law, most legal aid is spent on criminal cases where gaol is a real possibility, and child protection cases.

Waiver
The guidelines in matters arising under State law can be waived in special or exceptional cases, in the Commission's discretion.

There is no definition of special or exceptional cases, as each case is considered individually. Special hardship, either relating to the litigation, such as a direct threat to the applicant's livelihood that could be averted by representation, or to the applicant's personal circumstances, such as health, distance, language or literacy factors may be considered. Exceptional circumstances of any kind are also relevant. Applicants who believe that any grounds for waiver exist in their case should put these forward to the Commission.

Guidelines will only be waived if the Commission is satisfied that in the particular case before it, waiver is justified. Any or all of the foregoing factors may exist but not lead to waiver. Waiver in one case does not create a precedent for others. If you think there are special circumstances in the case, describe these in the application or accompanying letter. Waiver of guidelines is a matter for the Commission, and such issues may have to be dealt with by way of appeal, if aid is initially refused.

Commonwealth Guidelines

Child Support
Aid is not normally granted in child support matters, because our Child Support Unit will usually be able to assist. Our Unit is quite separate and independent from the Child Support Agency even though the name is similar. The Unit will help both carer and payer parents with free advice. If the matter requires extended help, and your client cannot afford private representation, we will consider whether we or some other agency can assist with documents and representation in court.

Funding caps
Funding caps apply in all matters. A funding cap is the maximum amount of aid which can be granted for any one case.

The cap differs according to whether the matter arises under State and Commonwealth law, and whether it is a family, criminal or civil law matter. See also, Common Questions.

Funding caps in State matters
In criminal law matters that are not regulated by the Commonwealth guidelines, the caps are:-

$60 000 in a criminal law matter involving one defendant
$120 000 in criminal law matters involving multiple defendants. But if costs exceed $90 000, then aid will not be granted for an appeal.

In civil law matters that are not regulated by the Commonwealth guidelines, the cap is $60 000.

Separate caps apply for 'in need of care' applications:

$12 500 for each party
$17 500 for independent representation for the child.
Funding caps in Commonwealth matters
Those applicable in matters arising under Commonwealth law are set out in the Commonwealth Guidelines.

In family law matters, where aid is first granted after 4 April 2005, the caps are $12,000 per party and $18,000 for a child representative (see Commonwealth Family Law Guideline 19.2 for full details). Note:
Although the child representative's funding comes from the Commission, the parties are expected to contribute to the extent that they are able. If they are unable to, they should explain this in writing to the child representative. In particular, if there is to be a family assessment, the parties will each normally be asked to contribute half the cost. Where a party is in receipt of a grant of aid, their contribution may be by way of a deduction from their potential legal aid entitlement. If, say, they contribute $500 towards child representative costs, their potential maximum entitlement to legal aid reduces from $12,000 to $11,500.
Also, the child representative must apply for costs orders against one or more of the parties in accordance with Commonwealth Family Law Guideline 3.2, at an appropriate time in the proceedings.
In family matters the cap is Australia-wide, ie legal aid expenditure in other States/Territories is counted towards the cap, and applies until the child reaches age 18. So long as the case is the same matter, no fresh cap arises.
In criminal law matters, the cap is $40 000 per applicant (see the Commonwealth Criminal Law Guideline 11 for full details). In Commonwealth criminal matters, the guidelines fix no start date.

No cap is imposed in civil law matters arising under Commonwealth law.

Common questions
Is my client automatically entitled to the maximum when aid is granted?
No. It is important to understand that the cap is a maximum. It is not necessarily the amount that will be granted in a particular case. Aid can be stopped at any time, for example because the case is finished, or the applicant is no longer eligible, or for some other reason connected with the conditions of aid. Few cases actually reach the cap. Most cost much less, so for most people, the cap never creates a problem. It only affects cases which are unusually expensive.

What happens when the cap is reached?
Once the cap is reached, aid will stop. This can happen at any stage of the case, even before or during the trial. You can find out from us as the case goes along how much funding is left before the cap will apply.

What about hardship?
In cases covered by the Commonwealth guidelines, the Commission has no power to change the caps, or to decide not to apply them in a particular case. Therefore, although you can appeal against the cap, if it has been correctly applied it cannot be waived.

In cases not covered by the Commonwealth guidelines, the Commission can waive or vary the cap in its discretion and the comments earlier in this section under Waiver apply.

The forum test
We will only grant aid for cases to be heard in South Australia. If the case is to be heard elsewhere, or should be or is likely to be heard elsewhere (for example because this is where previous proceedings have been heard, or because children the subject of a residence or contact dispute live there), the application should be made to the legal aid body in that State, and not to us.

If the case is transferred from the courts of one State or Territory to those of another, aid from the first legal aid body may stop, unless our reciprocity agreement applies. If aid stops, the applicant will need to apply afresh to the legal aid body in the new State or Territory. Their rules may be different: the applicant will not necessarily qualify in one State just because they qualify in another. The legal aid bodies are separate and independent of one another and cannot influence each other's funding decisions.

If a matter is funded in one State or Territory, and then in another, the second funding body will collect and pass on any money due to the first funding body at the end of the grant.

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