Commonwealth family law matters for which assistance may be granted
Victoria Legal Aid (VLA) may make a grant of assistance to a person with a family law or child support matter arising under the following Commonwealth legislation:
- Family Law Act 1975
- Child Support (Assessment) Act 1989
- Child Support (Registration and Collection) Act 1988 .
These are legal services relating to:
- parenting disputes (Guideline 1)
- recovery location and information orders (Guideline 2)
- international child abduction (Guideline 3)
- parentage determinations (Guideline 4)
- child support and child maintenance (Guideline 5)
- spousal maintenance (Guideline 6)
- special medical procedures involving children (Guideline 7)
- appeals (Guideline 8)
- property disputes (Guideline 9)
Family-related legal matters also arise under state law. These include:
- child protection matters
- family violence protection order cases
- adult guardianship and administration matters
Commonwealth family law matters for which assistance will not be granted
We will not normally make a grant of legal assistance in the following Commonwealth family law matters:
- applications to change a child’s name
- preparation and filing of consent orders outside a grant of assistance
- divorce or nullity applications
- child’s passport and travel applications
- parental responsibility options when a child’s primary carer has died
In rare cases, a grant of assistance may be available in these matters where the Commonwealth special circumstances criteria and relevant threshold tests can be met.
Any application concerning a matter for which there is no specific guideline must be referred to us for a decision.
If a matter appears to be outside of the eligibility criteria in the guidelines, and the lawyer believes that the client or matter should be funded, they should consider making an application for assistance under the Commonwealth special circumstances criteria in ATLAS seeking discretion. We will assess the application.
If a lawyer is unsure whether a client or matter meets the eligibility criteria, they should submit an application for consideration in ATLAS, seeking discretion. If assistance is refused, the lawyer or client may be able to ask for the decision to be reconsidered.
Who can apply for legal assistance in family law matters?
Most applications for legal assistance in family law disputes are made by parents. VLA considers that in some circumstances, people other than parents (most commonly other family members), including children themselves, have standing to intervene in family law disputes as a third party or to issue proceedings in their own right. Legal assistance may be available for people who are not parents in the following matters in limited circumstances:
- parenting disputes
- special medical procedures involving a child
- child maintenance or adult child maintenance matters
- child support matters
Legal assistance for children
We consider that it is usually most appropriate for legal assistance in family law matters to be provided to adults. We may make a grant of assistance for a child to be represented by a lawyer in two ways:
- by an independent children’s lawyer (ICL) (where the ICL represents and promotes the best interests of the child in the dispute between the parties) in the following matters:
- in parenting disputes (see Guideline 1.4 and Guideline 1.5)
- in international child abduction matters (see Guideline 3.3 and Guideline 3.4)
- in proceedings related to special medical procedures for children (seeGuideline 7.2).
- as a child litigant (where the child litigant is a party to the dispute and the lawyer, who is not an ICL, acts on the instructions of the child), in the following matters:
- parenting disputes (see Guideline 1.6, Guideline 1.7 and Guideline 1.8)
- proceedings related to special medical procedures for children (see Guideline 7.3)
- child support and child maintenance (see Guideline 5.6 and Guideline 5.7)
- strategic litigation (see 8 – Public interest and strategic litigation).
Providing a grant of assistance to a child litigant is rare and occurs only in limited circumstances. This includes where the person under 18 is the child who is the subject of the dispute relating to their care or welfare, and where they are a parent of a child who is the subject of a dispute.
Applications on behalf of a child who is the subject of the dispute (not where they are the parents) will be assessed by us.
Principles underlying the guidelines
VLA has a statutory obligation to provide legal assistance in accordance with the Legal Aid Act 1978 (Vic). This requires us to provide legal aid in the most effective, economic and efficient manner, at a reasonable cost and on an equitable basis.
Grants of legal assistance comprise the most intensive and wide-reaching facet of our services. Eligibility criteria in our guidelines help us to manage our resources to ensure we fund legal representation for people who need it most.
The guidelines provide a framework for our staff and private and community legal centre lawyers to work in partnership to assess the eligibility of people seeking help based on their financial situation, the nature and seriousness of their problem and their individual circumstances.
The guidelines are a means of weighing up the cost of the legal services sought against the likely benefit to the applicant and/or the public. The family law guidelines specifically, focus on assisting people to resolve their family disputes to achieve safe, workable and child focused parenting and care arrangements. They also aim to assist parents to resolve disputes through early intervention and dispute resolution, with litigation funding being preserved for the most serious and urgent matters.
For commentary on this section, see the Notes on the principles underpinning the guidelines.
How these guidelines are structured
These guidelines set out eligibility criteria, structured by category of:
- dispute, for example parenting disputes or disputes about spousal maintenance
- person seeking assistance, for example adult or child
- legal assistance provided, for example advice and negotiation, family dispute resolution at VLA's Family Dispute Resolution Service or litigation.
Tests that must be met to satisfy the eligibility criteria are listed under each guideline.
There are a number of threshold tests that must be met before eligibility under particular guidelines can be considered. For more information, see Threshold tests.
Words and terms in the guidelines that require definition are defined in the list of key definitions. These definitions form part of the guidelines.
Information to assist lawyers with the grants and applications process and the documentary evidence to support the application under each guideline, including flowcharts and checklists, is set out in the Notes on the Commonwealth family law and child support guidelines.
Conditions that apply to grants of assistance
For information about conditions that apply to grants of assistance generally, see the following sections of the Handbook:
- 19 – Standard terms and conditions
- 20 – Contributions and overdue payments ==REPACE TEXT HERE==
- 23 – Allocation of work to lawyers and law firms.
Information relating to the conditions that apply in grants of assistance in Commonwealth family law and child support matters are set out in the individual guidelines.
How to apply for legal assistance
Most applications for legal assistance in family law matters are made via the simplified grants process (SGP). The following matters and stages do not form part of the SGP and must be assessed by VLA:
- appeals in the FCFCOA (Division 1)
- international child abduction matters
- special medical procedures
- applications on behalf of child litigants
- property only disputes
If a matter is to proceed beyond the stages provided for in the SGP, or does not fall within the SGP, then the lawyer should upload all relevant supporting documentation to ATLAS with the application, proof of means and details outlining what assistance is sought. We will assess the application.
For commentary on this section, see Notes on how to apply for legal assistance.
Grants of assistance after final court orders have been made
After final court orders have been made, we may grant assistance for:
- applications to discharge or vary existing parenting, child support, child maintenance, adult child maintenance and spousal maintenance orders where there has been a significant change in circumstance
- applications for recovery orders, location orders or information orders
- applications for contravention or enforcement of court orders, contempt of court or arrears of maintenance
- ongoing work by an independent children’s lawyer (ICL) in exceptional circumstances where it is necessary for the implementation of orders.
We will not make a grant of assistance after final court orders have been made in circumstances other than those listed on this page.
For commentary on this section, see Notes on grants of assistance after final court orders have been made.
Reviewed 20 February 2022