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Stage 3 - Prepare for trial

Assessment criteria

Existing clients proceeding from Stage 2

For legal aid to be extended for a solicitor to prepare for a family law trial, the applicant must continue to meet the following tests:

Aid will only be extended to Stage 3, if the following court procedures have occurred:

  • Trial directions have issued, or
  • Trial dates have been allocated and the trial is to occur within 3 months
  • And
    • A family report has not been ordered, or
    • A final family report or other expert report has been prepared, or
    • Trial documents are required to be filed and served prior to the release of the final family report or other expert report.

New clients applying for aid after trial directions have been given

In accordance with the Commonwealth family law guidelines, Legal Aid Queensland must consider whether it is appropriate to make a grant of legal assistance for an applicant to participate in family dispute resolution services before it considers making a grant of legal assistance for court proceedings.

For legal aid to be extended for a solicitor to prepare for a family law trial, the applicant must continue to meet the following tests:

Aid will only be extended to Stage 3, if the following court procedures have occurred:

  • Trial directions have issued, or
  • Trial dates have been allocated and the trial is to occur within 3 months
  • And
    • A family report has not been ordered, or
    • A final family report or other expert report has been prepared, or
    • Trial documents are required to be filed and served prior to the release of the final family report or other expert report.

Decision makers of a higher delegation

If the matter has or will exceed the cap as outlined in guideline 18.2 – limit on costs, the matter will be referred to a grants manager for consideration.

Documentary requirements

Applications/extension of aid requests received from client

Applicants seeking a grant of legal assistance should forward all of the following documents for assessment:

  • A completed and signed Legal Aid Queensland application form
  • Proof of your income and assets
  • Details of your dispute with the other party
  • Details of the final order you are seeking
  • Details of the final order the other party is seeking
  • A copy of the current interim order
  • A copy of any family reports or other expert reports obtained
  • A copy of the trial directions

If aid has already been granted and you are seeking an extension of aid, you should contact your solicitor to lodge the request for further funding.

Applications/extension of aid requests from preferred suppliers or in-house practitioners

Practitioners seeking a grant of legal assistance should electronically submit an application / extension of aid request through Grants Online with the relevant information and attach:

  • A copy of the trial directions
  • A copy of any family reports or other expert reports obtained

The following documents are to be retained on file but may be requested by Legal Aid Queensland:

Interpretation

Guideline 4.1 - assistance for parenting orders

See interpretation for guideline 4.1 - assistance for parenting orders

Guideline 4.2 - assistance for applications to discharge or vary parenting arrangements

See interpretation for guideline 4.2 - assistance for applications to discharge or vary parenting arrangements

Guideline 4.3 - assistance to parties who are not parents

See interpretation for guideline 4.3 - assistance to parties who are not parents

Guideline 12 - property

See interpretation for guideline 12 - property

Prospects of success

In determining whether an applicant has prospects of success at a family law trial, the assessing officer will take the following into consideration:

  • The current interim orders
  • The final orders sought by the applicant
  • the final orders sought by the other party/s
  • The family report and any recommendations made by the report writer (if applicable)
  • Any other expert reports obtained (if applicable)
  • Whether the ICL has formed an opinion on what orders would be in the best interests of the child (if applicable)
  • Any mitigating factors against the applicant's case and how the applicant plans to counter these.

Grant(s) of aid

Full merits assessment (availability of final family report / or where a family report or other expert reports have not been ordered)

If the final family report is available at the time of assessing a request for trial preparation, the assessing officer will be able to conduct a full merits assessment on the case. If a family report or other expert reports have not been ordered, the assessing officer will be able to conduct a full merits assessment on the case.

If the assessing officer determines that the client meets the merits test, they will approve a grant of aid for trial preparation and any extension requests for trial attendance will not be subject to any further merits assessment.

The grant of aid for trial preparation where a full merits assessment has been made is:

  • FM3A - Preparation for trial (solicitor instructing counsel), or
  • FMS1 - Preparation for trial (solicitor advocate)

Partial merits assessment (final family report not available at the time trial documents are to be filed and served)

If a family report or any other expert reports have been ordered but are not available before the solicitor is required to file and serve trial documentation, the assessing officer will not be able to conduct a full merits assessment on the case.

In these situations, the assessing officer will need to make a determination on the information available as to whether the client meets the merits test. If the assessing officer conducts a partial merits assessment and determines that trial preparation should be provided before the final family report is released they will approve a grant of aid for trial preparation.

The grant of aid for trial preparation where a partial merits assessment has been made is:

  • FM3B – Preparation for trial (solicitor instructing counsel), or
  • FMS2 – Preparation for trial (solicitor advocate)

Once the final family report is released, the assessing officer will assess the client’s merit in funding representation at trial.

Extension(s) of aid

The grant of aid for trial preparation provides for up to two court appearances prior to trial commencement.

If the solicitor represents the client at two court appearances after trial directions are made and the trial does not commence by the third court appearance, the FM3C grant of aid is available for each appearance until the trial starts.

Where counsel is replaced prior to trial, the grant of aid for a replacement counsel is FMC2.

If the matter proceeds to trial, solicitors can apply for an extension for:

At any stage of proceedings, the solicitor can also request an extension of aid for:

Solicitors may also request additional funding outside the stage model; the criteria applied to these requests are contained within the nature and extent of funding section.

Retrospective contributions

If the dispute includes property settlement, funding will be provided subject to the right to recover a retrospective contribution.

Review of decisions

A decision to refuse legal aid for this type of matter may be appealed to the external review officer (refer to review of decisions).

Related links and information

Last updated 11 September 2019

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