This is commonly referred to as the ‘merits’ test. Please note that to satisfy the Commonwealth merits test, in addition to meeting this test, a matter must also meet both the prudent self-funding litigant test and the appropriateness of spending limited public legal aid funds test.
The ‘reasonable prospect of success’ test involves consideration of the specific orders to be sought or opposed.
The lawyer will need to consider the following, among other things, when assessing a ‘spend time with’ application under this test:
- total number of hours of time sought per week
- whether time with the child is to be supervised, by whom, and for how long supervision should continue
- whether time with the children occurs during daytime only, or includes overnight stays
- restrictions on contact with third parties during time spent
- conditions such as drug or alcohol screening or attendance at an anger management course.
A matter meets the test if it appears that the proposed application is more likely than not to succeed. This requires more than just an arguable case for the orders sought by the person seeking assistance.
Reasonable prospect of success – Example A
The father, who has not seen his child, aged four years, for the past 18 months, seeks assistance for an order to spend time with the child.
The application is unlikely to have sufficient merit if the father is seeking interim orders for the child to spend to 48 hours per fortnight with him, including overnight.
The application may have merit if the father is seeking interim orders for the child to spend time with him during the day only two hours per fortnight, with this gradually increasing to eight hours per fortnight over a four-month period.
Reasonable prospect of success – Example B
The mother has a prior history of heroin addiction. She claims to be drug free and resides with the maternal grandmother in Wodonga. She seeks time with her 10-year old child who lives with the father in Melbourne. The father seeks assistance to respond to the mother’s application.
The father may not have sufficient merit to seek final orders that the child spend no time with the mother.
The father may have merit to seek orders that time spent be limited to one weekend per month, with the maternal grandmother in substantial attendance during that time, and subject to the mother submitting clear urine screen results for the initial six months.
Reviewed 24 January 2022