For legal aid to be granted for an application / response in a proceeding for a protected confidences direction the following tests must be satisfied:
- the applicant has substantive funding in the proceedings, and
- there has been a requirement for disclosure to the court of material, which is asserted to be a protected confidence, and
- the issue cannot be resolved through negotiations, and
- where the ICL is the applicant, the protected confider is the child/ren who the ICL represents, and
- the request meets the merits test.
Where a request for an application for a protected confidences direction exceeds 2 per file (1 before trial directions are issued and 1 after trial directions have been issued), the request will be referred to a Senior Grants Officer.
Documentary requirements
Application received from preferred supplier or in-house practitioner
Practitioners seeking a grant of legal assistance must electronically submit an extension of aid request via the Grants Online system along with the relevant information request, and provide:
- Certification that negotiations to resolve the issue without the need for an application of this nature have occurred, and
- A summary of the evidence which is sought to be admitted and a description about how this request meets the merits test, and
- An opinion from the ICL as to whether the evidence should or should not be admitted in the proceedings having regard to the merits test.
The following documents are to be retained on file but may be requested by Legal Aid Queensland:
Interpretation
Merits test
When considering the merit of a request for an application for a protected confidences direction, the practitioner should provide information to address:
- The evidence is so important or has such probative value to the proceedings that its admission far outweighs any harm which might be caused to a party to the proceedings, or the child/ren the subject of the proceedings; or
- The harm caused by the admission of the evidence to a party to the proceedings or child/ren the subjects of the proceedings far outweighs the importance or probative value of the evidence to the proceedings.
Limitation of funding
Due to the limited funding Legal Aid Queensland has for Commonwealth family law matters, funding to make an application for a protected confidences direction are limited to 1 before trial directions are issued, and 1 after trial directions have been issued, with a maximum of 2 per file.
In exceptional circumstances LAQ will consider requests outside of this limitation. When considering exceptional circumstances, consideration will be given to whether the documents and / or information was available or in existence at the time of an earlier application for a protected confidences direction.
To ensure funding is provided in a cost-effective matter, practitioners should:
- Attempt to resolve the matter through negotiation with the parties before making an application; and
- Consider making a single application which applies to multiple documents or information and / or multiple sources of documents or information to which the protected confidence direction/s will apply; or
- Consider inclusion of protected confidences direction application when an application in a proceeding is required for substantive issues.
Grant(s) of aid
The grant of aid for an application for protected confidences direction for an Independent Children's Lawyer is ICPC.
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).