Victoria Legal Aid (VLA) may make a grant of assistance to apply for or respond to an application for a under the Family Law Act 1975, (whether or not , or substantive parenting orders are also sought) where:
- it is an (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:
and the person is either
- allegations have been made that indicate there is a risk to the wellbeing and/or safety of the 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 and one or more of the parties
- change residential arrangements for the .
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
- it is in the 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
If the 'significant change in circumstances' has been caused by the applicant, VLAwill consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the applicant.
Applications for assistance under this guideline are within the simplified grants process and are submitted through . Lawyers submitting an application must ensure that evidence supporting the application is kept on the file.
One of the following grants may be available in matters involving recovery orders:
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 , 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 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.
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 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 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 for the purposes of . This means we will not include the amount of the grant when calculating the for the substantive matter (that is, parenting orders about with whom a should live or spend time).
Notes on this guideline
Reviewed 19 April 2023