We recently had a Case in our office whereby we successfully obtained a Judgement for our client (the mother of a young child) to obtain what is commonly known as “litigation funding” to enable her to pay her lawyers and Barristers, so as to be properly represented in a Trial in the Federal Circuit Court.
Whilst, most cases with litigation funding involve property settlement (where a party usually obtains an upfront advancement of their property settlement – so as to fund for litigation costs), rarely is such an Application made in parenting cases.
Under s117 of the Family Law Act, there is simply no restraint to making such an Application for a parenting case. S117 does not apply only to property settlement and financial matters.
It seems to be a common misconception that because a party may be eligible for Legal Aid, then that rules them out of having a lawyer of their own choice and having their fees paid for by the other party. The availability or otherwise of Legal Aid is only one factor to be taken into account and is not a determinative factor, nor a fatal factor in the Court’s exercise of discretion.
Whilst, in most cases, litigation funding for parenting matters will not be available, one should not close their eyes to it, especially in circumstances where the following factors may exist:-
- Where one party’s Application has limited prospects of success and lacks merit;
- Where a party has failed to comply with procedural directions or Orders of the Court.
- Where one party is in a substantial superior financial position to the other party;
- Where the party who seeks the funding is in a poor financial position but is the primary carer of the child, or children;
- The amount and regularity of Child Support payments;
- The history of proceedings between the parties;
- The conduct of the parties towards each other (including, but not limited to issues concerning domestic violence).
In cases, where a party does have the capacity to pay for the other’s legal fees in parenting matters, and some or all of the matters, listed above, substantially exist, then there may be prospects to obtain litigation funding for a parent.
It is suggested that these cases would be the exception, rather than the rule, but in all matters, one should not close off the option, merely because a party is eligible (or may be eligible for Legal Aid) and just because it is a parenting matter and not a property matter.