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Notes on Guideline 5.2 – litigation and administrative review for adults in child support matters

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Note: The following information provides guidance on how to interpret and apply guideline 5.2 and should be read in conjunction with that guideline in the Handbook. Where there is any inconsistency between the following information and the guidelines, the guidelines will prevail.

The following information provides general guidance on litigation grants in child support matters. Additional information is available on:

(a) Eligibility criteria

Assistance may be available under this guideline where criteria:

  • A and B are met.

Assistance should usually be limited to administrative remedies under child support legislation, and to proceedings in state or territory magistrates’ or local courts, or the FCFCOA (Division 2), unless such proceedings are unavailable.

Criterion A

Refer to the notes linked to the following threshold tests:

and to the following supplementary information.

Commonwealth merits test and child support matters

When assessing the cost/benefit of an application for assistance under this guideline, the lawyer must take into account:

  • the financial position of the applicant, the respondent and the children
  • capacity of the payer parent to pay child support or if the application will result in only a slight increase to a child support assessment, this may not warrant funding, given the expected costs of legal action
  • where the dispute relates to only a short period of the child support assessment or before the child support case ends (e.g. when a child is about to turn 18) this may not justify the cost of taking action
  • where the amount of the arrears or debt sought is $1000 or less this will not justify the cost of taking action.

Criterion B

Enforcement

Where enforcement of arrears is sought, consider:

  • the nature of the arrears e.g. legal assistance would not be available to enforce payment of private school fees
  • amount of the arrears e.g. arrears of $1000 or less will not justify the cost of taking action
  • whether it is registered for collection by Services Australia (Child Support) and should be left in the hands of the agency, and
  • if there are avenues to secure payment from the party who is in arrears.

(b) Grants assessment process

Applications for assistance under this guideline must be lodged via ATLAS using the ‘simplified process – child support’ template, making the following selections:

  • in the matters screen, select ‘child support’ under matter group and then the appropriate matter type
  • Under costs and disbursements, select the required funding, depending on the matter type.

(c) Documentary requirements

The lawyer’s file must contain a file note that makes clear:

  • details of the proceedings assistance is sought for

and

  • how the matter meets each of the threshold tests

and

and

  • where enforcement is sought, details of the period of non-payment, nature and amount of arrears and proposed means of enforcement.

The file should also contain all other relevant notes, supporting evidence and documents.

(d) Fees and billing

Stage 2 of fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline. The following fee stages are available under are available under this guideline, depending on the grant recommended:

Family law (Commonwealth)

Updated

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