Legal Aid funding may be available from the Legal Services Commission in certain circumstances.
In criminal matters there must be a likelihood of a gaol sentence.
In family law matters (other than an emergency) there must be a genuine dispute over children that is not resolvable by negotiation or counselling.
The Commission is responsible for assessing each application received for legal aid and uses three broad criteria to assess an application for assistance. In addition to the means test, an application for assistance is also assessed as to its merits and also as to whether it is within the Commission’s guidelines. The application must satisfy all three criteria before legal aid can be granted.
The means test determines how much a person with any given income and assets can afford to pay for necessary legal services. The income and assets of any financially associated person are treated as if they were the income and assets of the applicant unless they are in legal conflict. A financially associated person is any person or company whom the applicant could reasonably be expected to receive money from or give money to, for example, a spouse. The following will be considered by the Commission:
- Proof of Means
The Commission must be satisfied that the legal matter involved is an appropriate expenditure of public legal aid funds. Where the matter has no reasonable prospects of success, legal aid is refused. In serious criminal matters, the existence of a “reasonably arguable” defence may suffice.
The Commission has set guidelines regarding the type of work it will handle. Legal aid is normally not provided for the following:
- Family property settlements, unless there are special circumstances.
- Traffic offences, including drink driving, unless there is a real risk of imprisonment or the applicant has special circumstances that justify assistance.
- Probate or claims on deceased estates
- Complaints against lawyers
- Complaints against Police
- Defamation cases
- Neighbour and Fencing Disputes
- Bankruptcy Act matters
- Applying for or defending Intervention Orders
- Unfair Dismissal applications
- Matters where other agencies can provide appropriate assistance
- Minor Civil Claims
- Minor criminal matters and minor drug offences
- Victims of Crime Compensation
- Commercial matters
- Matters where private lawyers are prepared to act
The specific guidelines can be waived in cases involving special or exceptional circumstances. These can include undue hardship, financial or otherwise, to the applicant if legal assistance were not provided, or emergency situations in which the liberty, livelihood, possessions or physical and mental well being of the applicant and any dependents are threatened.
Where a case is identified to be an “expensive case”, no aid or extension of existing aid beyond the level of the funding cap will be granted. In criminal cases, an “expensive case” is in excess of $50,000 or $100,000 where more than one party is receiving legal aid. Similarly, in family law cases, an “expensive case” is in excess of $15,000 for either the husband or wife and $18,000 for the child’s representative.
Where you or your financially associated person own real estate, legal aid is really only a loan. Once the cost of the matter goes over $2,200, the Commission will register a charge over your property. The charge makes sure that you pay back the whole of the legal aid eventually. It applies to any real estate in which you or your financially associated person have an interest. It does not matter whether the real estate is fully paid off or whether there is still a mortgage.
For more information about the conditions of Legal Aid, click here.