Family law costs management

Victoria Legal Aid (VLA) applies cost management strategies in grants of assistance for family law and child support matters. These strategies include:

• stage of matter limits set out in Fee table 4
• an overall cost ceiling of $17,464
• a requirement to seek costs from the other party in some matters (such as applications involving recovery orders and for contravention of orders or contempt of court).

Some matters are not subject to cost ceilings. See limits on costs for more information.

How costs are calculated

When we calculate the cost of assistance in a family law or child support matter for the purposes of costs management, we add together the following costs:

• the professional costs of the lawyers to represent the assisted people, including counsel’s fees and payments to agents
• fees for expert reports
• disbursements
• the cost of us providing assistance (and those of any other legal aid commission, where the matter has been transferred from one or more of the states or territories).

From this total, we subtract the following:

• interpreter and translator fees
• circuit fees
• travel and accommodation costs
• costs ordered and paid under section 10(2) of the Federal Proceedings (Costs) Act 1981 (Cth)
• contributions by the person who has been assisted (made to us or any other legal aid commission), and
• costs we recover (or any other legal aid commission recovers).

We treat the following matters as a new matter when calculating cost ceilings:

• recovery order proceedings
• location or information order proceedings
• contravention, enforcement or contempt of court proceedings
• appeals
• a dispute involving any of the following:
  • different parties
  • the same parties about different issues
  • the same parties about the same, or substantially the same issues, where there has been a material change in circumstances.

This means that we will not include the amount of the grant when calculating the cost ceiling.

Limits on costs

The costs we can pay in family law and child support matters are set by the stage of matter limits in Fee Table 4 and limited by the cost ceiling, regardless of whether legal assistance is provided by our in-house lawyers or a private lawyer.

If a matter reaches the cost ceiling, we will not pay further fees or costs without prior approval. For more information see Funding beyond the cost ceiling below.

Limits on costs do not apply to grants of legal assistance to independent children’s lawyers. Cases listed in the Magellan List of the FCFCOA are exempt from the fee ceiling.

Funding beyond the cost ceiling

On request from a lawyer, we can increase the cost ceilings on a particular grant of assistance if we decide it would cause undue hardship if it is not increased. When we make that decision, we will consider:

• whether the person seeking assistance has incurred significant additional costs due to any of the factors listed as Commonwealth's special circumstances
• whether it would be unreasonable to expect the person seeking assistance to adequately represent themselves due to any of the factors listed in the Commonwealth's special circumstances
• whether the costs of the person seeking assistance have increased significantly through no fault of their own
• the number and complexity of the issues in dispute, and
• the likelihood of risk to a child's safety or welfare if the cost ceiling is not increased.

Where the grant is for an ICL or the matter is in the Magellan List of the FCFCOA , the cost ceiling does not apply.

Before making a decision to increase the cost ceiling for a particular grant of legal assistance, we will consider whether it is possible to contain costs by:

• providing legal assistance for the matter in-house, or
• considering whether alternative means of funding are appropriate, including negotiating a fee package with a lawyer that is not in accordance with our usual fee scales.

Any decision we make to increase the cost ceiling for a particular grant of legal assistance will be strictly limited. The nature and extent of the additional cost will be determined by us or as agreed between us and the lawyer (as appropriate). We will consider:

• whether the other parties to the matter have legal representation
• advice from the court and the parties or their lawyers about the estimated length of time required for the hearing of the matter, and
• the number and nature of witnesses who must be called or cross-examined.

When making a request for funding above the cost ceiling, lawyers are required to complete a Request for over-cap funding worksheet and to provide all the information necessary to enable us to make the decision. For more information, see the Notes on the Commonwealth family law and child support guidelines.

Cost recovery

VLA requires practitioners to apply for costs in legally-aided matters wherever appropriate. Recovered costs can be used to assist other clients and costs orders also help to deter vexatious or unwarranted litigation.

The following provisions of the Family Law Act 1975 (Cth) relate to costs:

• Section 117AA – Costs in proceedings relating to overseas enforcement and international Conventions
• Section 117AC – Security for costs
• Section 117A – Reparation for certain losses and expenses relating to children
• Section 117B – Interest on moneys ordered to be paid
• Section 117C – Offers of settlement on costs

Common scenarios where costs can be sought

• Applications for a bond or security for costs – for example, to secure the return of children from overseas travel. Lawyers should ensure the estimate includes costs of a grant of legal assistance for the client.
• Where the trial doesn’t proceed – the cost of trial preparation and/or instructing counsel to prepare and appear in trials which are aborted due to the other party not being ready to proceed.
• Adjournments – where the cost of a court adjournment is caused by the other party’s fault or delay.
• Medical report costs – where paid for by legal aid and incurred due to unreasonable claims or allegations made by the other part.
• Parentage testing costs – where the client’s share of the cost is paid for by legal aid and the results favour the client.
• Hopeless applications – for example, interim or final hearing applications made without merit or hope of success.
• Recovery orders for children – where there was no merit in the child being withheld from the applicant parent.
• Appeals and final hearings – where the other party is wholly unsuccessful.
• Hungerfords letter – where one is served on the other party during negotiations and a trial proceeds. In such cases, the other party must obtain a less desirable result than exchanged during the final negotiation.

Considerations in seeking costs

Seeking a costs order may not always be appropriate or practicable. The following should be kept in mind when considering whether to seek costs:

• What is the likelihood of recovery of costs from the other party?
• Is the costs order worth pursuing or is the other party unable to pay?
• Is the other party also legally aided? Costs orders are not required where the other party to the dispute also has a grant of legal assistance
• Is there a need for a separate court date to argue costs which then adds to the costs (which may not be recoverable)? In these circumstances, the lawyer is required to request assistance for the appearance. We will assess whether the costs of the application exceed the costs sought
• It takes time to prepare the costs application affidavit. VLA may not fund the costs of the application or hearing because costs do not follow the event under the Family Law Act.

For more information on applications for costs, see the see the Notes on the Commonwealth family law and child support guidelines.