Victoria Legal Aid (VLA) may make a grant of assistance to apply for or respond to an application for a recovery order under the Family Law Act 1975, (whether or not location, information or substantive parenting orders are also sought) where:
- it is an urgent matter (unless the person is responding to an application made to the court, in which case this requirement does not apply)
- the following threshold tests are met:
- forum test
- substantial issue in dispute test
- Commonwealth merits test (see also Parenting disputes where the person is in custody)
- means test
- contravention test
and the person is either
- a priority litigation client
- allegations have been made that indicate there is a risk to the wellbeing and/or safety of the child from being subjected or exposed to abuse, neglect or family violence.
In order to satisfy this criteria, the level of risk must be such that there is a likelihood that orders will be made that either:
- result in a significantly limited relationship between the child and one or more of the parties
- change residential arrangements for the child.
A section 60I certificate is not required if it is an urgent matter.
Other mandatory requirements
As well as the requirements set out in Guideline 2.1, additional criteria apply in the following circumstances:
Where a person is not a parent of the child
Legal assistance under this guideline is most commonly granted to one or both of the parents of the child. Where the person is not a parent of the child, VLA must also be satisfied that:
- the person is significant to the care, welfare, and development of the child
- it is in the best interests of the child for the person to be granted legal assistance in relation to the dispute.
In determining the best interests of the child, where there are state child protection orders in place or child welfare proceedings on foot, we may grant assistance to a person who is not a parent of the child where the orders or proposed orders are in favour of that person.
Discharge or vary orders
Where the person is also applying for assistance to discharge or vary existing parenting orders, there must also have been a significant change in circumstances since the parenting order was made.
If the 'significant change in circumstances' has been caused by the applicant, we will consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the applicant.
One of the following grants may be available in matters involving recovery orders:
- Stage 2B – application for recovery, information or location order in any court (all fees in this stage are available)
- Stage 2C – initiating litigation, Magistrates’ Court
- Stage 2E – initiating litigation, federal family courts.
When a stage 2B grant is available
- Where a person qualifies for assistance under this guideline and the matter is deemed urgent solely under point 1 of the definition of urgent matter, ie the urgency relates only to the need to recover the child, the stage 2B grant is available.
- Where subsequent to being granted assistance, the parenting issues can be deemed urgent under any of points 2 to 7 of the definition of urgent matter, the lawyer can request an extension for a 2E grant.
- Under a stage 2B grant, where proceedings for the recovery of the child are concluded and there are other parenting issues remaining to be resolved, the lawyer is not automatically entitled to claim subsequent appearance fees to resolve the parenting issues.
- Where the parenting issues remaining to be resolved cannot be deemed urgent under any of points 2 to 7 of the definition of urgent matter, the lawyer must refer the parties to our Family Dispute Resolution Service (FDRS). The lawyer should recommend applying for a stage 1B grant (Preparation for early intervention FDRS).
When a stage 2C or 2E grant is available
Where a person qualifies for assistance under this guideline and the matter is deemed urgent under point 1, and under any of points 2 to 7 of the definition of urgent matter, the stage 2C grant or 2E grant, is available.
TheRecovery order flowchart, available in the Notes on the Commonwealth family law and child support guidelines, sets out the fee pathways under this guideline.
The following conditions apply to grants of assistance for recovery orders:
- Under a stage 2B grant, lawyers can claim one additional appearance fee in recovery order proceedings in the federal family courts without an extension of assistance. In some circumstances an extension of assistance may be sought via the simplified grants process for a second additional appearance fee in recovery order proceedings in the federal family courts.
- The person requesting assistance for an application for a recovery order must seek a costs order against the other party from the court. If the other party also has a grant of legal assistance in the matter, this condition does not apply.
- A grant of assistance for a recovery order is treated as a new matter for the purposes of family law costs management. This means we will not include the amount of the grant when calculating the cost ceiling for the substantive matter (that is, parenting orders about with whom a child should live or spend time).
Documentary requireme nts
Applications for assistance under this guideline are within the simplified grants process and are submitted through our online lodgment service, ATLAS. Lawyers submitting an application must ensure that evidence supporting the application is kept on the file.
Lawyers are also encouraged to complete a Family law worksheet and a Proof of means worksheet for their file, available on the Invoice, forms and worksheets page.
Notes on this guideline
For commentary and examples on the eligibility criteria, grants assessment process, documentary requirements and fees and billing relevant to this guideline, see the Notes on guideline 2.1.
Reviewed 20 February 2022