Note: This guideline applies where a person seeks assistance to start legal proceedings with a location or information order, and a recovery order is not also sought in the application.
Where a person seeks assistance for a location or information order in addition to an application for a recovery order, the application for assistance should be made under Guideline 2.1 – assistance for a recovery order.
Victoria Legal Aid (VLA) may make a grant of assistance to a person to apply for a location or information order under the Family Law Act 1975 in circumstances where a recovery order is not also sought where:
- the person has taken reasonable steps to locate the child, or a person who has the child in their care
- a court order is required to obtain information about the whereabouts of the child, or a person who has the child in their care
- the following threshold tests are met:
- forum test
- substantial issue in dispute test
- Commonwealth merits test (see also assessment of merit in 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 subject 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:
The circumstances in which a section 60I certificate may be required are outlined in Fees available.
Other mandatory requirements
As well as the requirements set out in Guideline 2.2, 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, VLA 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, VLA 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 where a person seeks assistance to start legal proceedings with a location or information order:
- Stage 2B.1 – prepare and appear in an application for recovery, information or location order, Federal courts
- Stage 2B.5 – prepare and appear in an application for recovery, information or location order, Magistrates' Court
- 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, whether or not substantive parenting orders are also sought, and the matter cannot be characterised as an urgent matter, a 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 location of the child are concluded and there are other parenting issues remaining to be resolved, the lawyer is not 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). A section 60I certificate will be required if the person applies for a litigation grant under Guideline 1.3.
- Where a person qualifies for assistance under this guideline, only the lump sum fee is available. No subsequent appearance fees are available under this grant.
When a stage 2C or 2E grant is available
Where a person qualifies for assistance under this guideline and substantive parenting orders are also sought, the stage 2C grant or 2E grant is available where the matter can be deemed urgent under any one of points 2 to 7 of the definition of urgent matter. In these circumstances, a section 60I certificate is not required.
The Location/information 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 location or information orders:
- the person requesting assistance for an application for a location or information 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 location or information order is treated as a new matter for the purposes of family law costs management. This means VLA will not include the amount of the grant when calculating the cost ceiling for the substantive matter.
Applications for assistance under this guideline are within the simplified grants process and are submitted through 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 2.2.
Reviewed 19 April 2023