Notes on Guideline 5.7 – litigation for children in child support and child maintenance matters

(a) Eligibility criteria

Assistance may be available under this guideline where criteria:

• A, and B,

and

• C

or

• D
• and E are met.

This means criteria A, B and E must be met for all matters, with either criteria C or D.

Criterion A and B

Examples of where VLA may consider it appropriate for a child litigant to participate in litigation are where:

• the child litigant is the parent in a dispute or the child litigant is over 18

and

• the parent is genuinely unwilling or unable to do so.

The child must be sufficiently mature to give instructions to a lawyer. Part 5.1.1 of VLA's practice standards provide additional information in relation to representing children in family law matters, including assessing capacity to give instructions and taking instructions from very young, traumatised and/or intellectually disabled children.

Criterion C

Most child support matters are handled by either VLA’s in-house Child Support Legal Service or a community legal centre (CLC). VLA will not make a grant of legal assistance to a panel lawyer under this guideline unless the person seeking assistance has first contacted our Child Support Legal Service or a CLC, and has been unable to obtain appropriate assistance.

Requests for assistance from the Child Support Legal Service or to a CLC are made directly to those services and not by application for a grant under the guidelines. Further information regarding the Child Support Legal Service can be found on our website.

CLCs that provide a similar service to the Child Support Legal Service are:

• South-East Monash Legal Service
• Peninsula Community Legal Centre
• Barwon Community Legal Service.

Clients are not limited to seeking assistance from the above three CLCs for the purposes of this guideline, but may have approached any CLC listed on the community law website.

Criterion D

In some circumstances, it is preferable for the person to be represented by a section 29A lawyer, rather than the Child Support Legal Service or a CLC. VLA may consider a grant under this guideline where a panel lawyer is currently acting for the person or has submitted an application for assistance, in another Commonwealth family law matter, and therefore is familiar with the client and their circumstances. This is likely to be the case where a determination of parentage is an issue in a parenting dispute.

Criterion E

Refer to the notes linked to the following threshold tests:

• forum test
• Commonwealth merits test.

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 parties.

Where there is no apparent capacity of the payer to pay substantially increased child support or maintenance or the application will result in only a slight increase to a child support or maintenance, this may not warrant funding, given the expected costs of legal action;

• the duration of the payments. Child support or maintenance for only a short period (eg when a child is about to turn 18) may not justify the cost of taking action;
• where arrears are sought, the amount of the arrears or debt. Arrears of $200 debt will not justify the cost of taking action.

(b) Other mandatory requirements

Discharge or vary orders

Refer to the notes linked to the definition of significant change in circumstances.

Enforcement

Refer to the notes linked to the definition of substantial contravention and on contravention, enforcement and contempt of court.

The following provides additional guidance in applications for assistance for enforcement proceedings:

• the request for legal assistance should be made without unreasonable delay after the orders have been contravened;
• the person requesting assistance for enforcement proceedings must seek a costs order against the other party from the court. For more information, refer to costs recovery;
• we treat grants of assistance for enforcement proceedings as a new matter for the purposes of family law cost management. This means that we will not include the amount of the grant when calculating the cost ceiling for the substantive matter (see Family law costs management).

(c) Grants assessment process

Applications under this guideline must be submitted VLA ATLAS using the ‘VLA Assessed – Child Support’ template, making the following selections:

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

VLA Assessed templates require the lawyer to detail how the matter meets the appropriate guideline and the Commonwealth merits test. If the lawyer needs to provide additional information, this should be done by using the ‘submit correspondence’ function.

(d) Documentary requirements

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

• why it is appropriate for the child to participate in litigation, including the lawyer’s assessment that the child is sufficiently mature enough to give instructions

and

• why the parent is unable to make the application

and

• attempts made by the client to obtain assistance from VLA’s Child Support Legal Service or a CLC.The Child Support Legal Service will provide a letter or referral email if they are unable to assist. If the client has does not have correspondence from the CLC where assistance was sought, a file note should be created noting the time and date of the appointment or phone call and the person that the client spoke to

or:

• details of family law proceedings the client is being/or will be funded for

and

• how each of the thresholds tests is met

and

• where discharge or variation is sought, how the significant change in circumstances test is met

and

• where the person seeking assistance is not a parent of the child, how they met the requirements of section 66F of the Family Law Act 1975 (Cth)

and

• where enforcement is sought, details of the substantial contravention.

The file should also contain all other relevant notes, supporting evidence and documents, including documentary proof of means if the applicant is an adult child.

(e) 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 this guideline, depending on the grant recommended:

• Stage 2A – Application for determination of paternity
• Stage 2C – Initiating litigation, Magistrates’ Court
• Stage 2D – Transfer from state Magistrates’ Court to FCFCOA
• Stage 2E – Initiating litigation, FCFCOA
• Stage 2F – Subsequent hearing, FCFCOA
• Stage 2G – Interim contest hearing, FCFCOA
• Stage 2I – Application for contravention, enforcement or contempt proceedings.