Parenting disputes where the person is in custody

Before recommending a grant of assistance in a parenting dispute for a person who is in custody, the lawyer should take the following into account when assessing whether the person meets the Commonwealth merits test:

  • the nature of the offences for which the person is in custody (offences involving violence, sexual offences, offences against children or against the other party, or parties, may impact on the merit of the application)
  • details of the victims (their age, relationship to the applicant, or other family circumstances)
  • the relationship between the prisoner and the children prior to incarceration
  • the length of sentence and anticipated release date
  • all other relevant matters.

‘Spend time with’ applications

For the lawyer to be satisfied that a person in custody meets the Commonwealth merits test, they must form the view that the person had a meaningful relationship with the child prior to incarceration and that contact would assist in maintaining it.

If the person did not have a meaningful relationship with the child prior to incarceration, the court is unlikely to find that any contact while the person is in custody (including sending cards or telephone contact) would create one. The matter is unlikely to meet the Commonwealth merits test and assistance should not be recommended in such a case.

The lawyer must also consider that the proposal put forward to enable the child to spend time with the incarcerated parent is reasonable. This includes consideration of the distance to be travelled and whether there is a someone willing to travel to facilitate time between the person and child.

Location or information orders

Before assistance is recommended for a person in custody for proceedings relating to location or information orders, the lawyer must assess the long-term merit of the substantive parenting application. Even if the Court is likely to make a location order or information order, we will only provide funding if the substantive parenting matter satisfies the Commonwealth merits test.

For commentary and examples on how this test applies, see Notes on the persons in custody test.