To satisfy the Commonwealth merits test, in addition to meeting this test, a matter must also meet both the ‘reasonable prospects of success’ test and the ‘appropriateness of spending public funds’ test to qualify for assistance.
This part of the test aims to put assisted people into a position equal to, but not better than, people ‘without deep pockets’ (that is, with limited financial resources) who risk their own money in litigation. In a family law context, a litigant without deep pockets means a litigant who has access to funding at a similar level to legally assisted applicants. That is:
- $15,510 (including GST), and
- with the possibility of further funding beyond the cap in limited circumstances.
As costs orders are not routinely made in the family law jurisdiction, the element of risk may not apply in many cases. The more relevant question may be whether a prudent litigant would use his or her funds for the proposed proceeding.
In relation to property aspects of matters which involve children’s issues, the quantum of difference between the orders sought by the parties should be balanced against the likely cost of pursuing that aspect of the proceeding.
Prudent self-funding litigant – Example A
The father has interim orders for time with the child for a 24-hour period per fortnight. The Court counsellor recommends this be increased to 48 hours per fortnight. The father seeks assistance to vary the interim orders increase time with the child to 48 hours per fortnight, as recommended by the court counsellor, before the final hearing. There is only $3,500 left under the ceiling and it will cost more than $3,000 to prepare and run a one day final hearing.
It may not be considered prudent to issue proceedings before the final hearing to vary the interim orders at a cost of $1,606.
Prudent self-funding litigant – Example B
Interim orders are in place for the father to have time with the child supervised at a contact centre. Supervision is required due to the father’s previous drug use. The trial is 12 months away. The contact centre has provided a report favourable to the father and the father has produced clean drug screens for the past six months.
The father seeks time with the child away from the contact centre and with the paternal grandmother in substantial attendance. The mother will not agree.
It may be considered prudent for the father to issue an application in a case for the orders he seeks.
Reviewed 21 February 2022