Notes on Guideline 1.2 – FDRS for adults in parenting disputes

(a) Eligibility criteria

Assistance may be available under this guideline where criteria A, and B or C are met.

Criterion A

Refer to the notes linked to the following threshold tests:

• forum test
• substantial issue in dispute test
• Commonwealth merits test (see also assessment of merit where the person is in custody)
• means test
• contravention test.

Criterion B

Refer to the notes linked to the family law priority client definition.

Criterion C

Refer to notes under criterion E in Guideline 1.1.

(b) Other mandatory requirements

Where a party is not a parent of the child

Refer to the notes linked to the definitions of:

• significant to the care, welfare and development of the child
• best interests.

Discharge or vary orders

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

(c) Grants assessment process

An application for a grant of assistance under this guideline must be lodged via ATLAS using the ‘simplified process – FDRS & stage 2’ template, making the following selections:

• under ‘court hearings’, select ‘no court proceedings’
• under ‘professional costs’, select ‘stage 1 FDRS parenting, child maintenance or spousal maintenance’
• where there is currently litigation on foot in relation to the family law matter, and this is funded by VLA, the applicable professional costs for FDRS is stage 2H (litigation intervention FDRS). Alternatively, if the court orders a court-based DRC, the applicable professional costs is stage 2H (court-based DRC).

If the lawyer needs to provide additional information, this should be done using the ‘submit correspondence’ function

Moving from litigation to FDRS

A grant of assistance for FDRS or DRC after litigation has commenced is generally provided via a stage 2H grant (litigation intervention FDRS or court-based DRC).

In the following circumstances the lawyer would be entitled to a stage 1B grant instead of a stage 2H grant:

• the litigation on foot is under a stage 2B grant (recovery, information, location orders)
• where litigation funding has been recommended but prior to using these funds the lawyer assesses the matter to be suitable for FDRS.

These exceptions take into consideration that proceedings have just commenced and the lawyer is entitled to the higher preparation fee available in Stage 1B. The lower preparation fee in Stage 2H is for mediation where the issues have already been narrowed (eg after the family report is released).

The lawyer must submit correspondence on the first file, advising that funding for litigation is not required, before submitting a fresh application on a new file ID requesting funding under stage 1B.

Where a litigation grant has been made and assistance is subsequently recommended for litigation intervention FDRS under stage 2H, the litigation grant is deferred pending the outcome of the FDRS process. If the matter is resolved at FDRS, lawyers may render an itemised bill for all work done pursuant to the previous litigation grant.

Where assistance is provided for litigation intervention FDRS, the litigation grant will be deferred if:

• a session at FDRS can be held more than one month prior to the date set to file documents, and/or
• the requesting party can explain why a further FDRS session may resolve the matter, and/or
• the deferral of a grant to attend FDRS does not prejudice either party.

It is understood that during the FDRS process, necessary work that was required in the previous litigation grant may need to be undertaken. However, lawyers should only undertake steps that are critical to court procedure. They should avoid major steps in the litigation grant previously given, for example, preparing affidavits or briefing counsel for final hearing.

Additional FDRS conferences

Where a second VLA FDRS conference is required and may reasonably be expected to resolve issues, the lawyer may proceed to a second conference without an extension of assistance.

Funding for a third FDRS conference will be assessed by VLA and cannot be subject to a lawyer’s recommendation. Assistance for a third FDRS conference should be applied for via an extension request on the existing grant using the ‘simplified process – FDRS & stage 2’ template, making the following selections:

• under ‘court hearings’, select ‘no court proceedings’
• in the professional costs screen, select ‘Additional FDRS conference’.

Supporting correspondence should then be submitted containing the following information:

• details of the progress since the last FDRS conference
• details of the issues still in dispute or orders sought by each party
• a statement from the lawyer about whether the orders or outcome sought satisfies the Commonwealth merits test
• a copy of the chairperson’s report from previous FDRS conferences.

(d) Documentary requirements

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

• how each of the threshold tests are met
• how criterion B or C is met
• where the person is not a parent of the child, how they are significant to the care, welfare and development of the child
• where discharge or vary is sought, how the significant change in circumstances test is met.

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

Lawyers are also encouraged to complete a family law worksheet.

(e) Fees and billing

Stage 1 of fee table 4.1, set out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

Where the lawyer is booked to attend the conference, or counsel has been briefed, and the FDRS conference is cancelled on the day, the full conference fee is available if the cancellation occurred due to no fault of the lawyer or barrister.

Snapshot of fees available for early intervention FDRS

• where conference proceeds – parenting, child maintenance or spousal maintenance matters, see 1B.1
• where conference does not proceed but substantial negotiations undertaken – parenting, child maintenance or spousal maintenance, see 1B.1
• where conference does not proceed and no substantial negotiations – all matters, see 1B.1 and 1B.2
• no preparation fee payable where an advice and negotiations fee (1A) previously claimed on the file – parenting, child maintenance or spousal maintenance matters.

• included in stage 1C broadband grant (no extension required)
• distance fee payable if venue more than 50kms from lawyer’s office.

• included in broadband grant (no extension required)
• lawyer must assess that the second conference is likely to resolve the matter
• distance fee payable if venue more than 50km from lawyer’s office.

• assessed by VLA
• lawyer must submit an extension seeking a special disbursement and outlining reasons why a third conference is required
• distance fee payable if venue more than 50km from lawyer’s office.

• payable where the lawyer prepares consent orders and they are filed with the court.

• record of consultations with the client, including appointments and telephone attendances
• record of advice provided to client both oral and written
• record of negotiations conducted with the other party or their lawyer, including telephone attendances and letters
• conference notes and details
• letter to the client advising of the outcome of the conference and of any further action to be taken
• a copy of consent orders filed with the court, where applicable
• copies of the section 60I certificate and the chairperson’s report.

Where assistance granted and costs claimed for advice and negotiations, the lawyer must reduce the preparation fee by the amount claimed for advice and negotiations. The full preparation fee will be available on the second subsequent grant.

Where the subsequent grant is for proceedings involving a recovery order, whether or not a location or information order is also sought, the subsequent grant will not be reduced by the amount already paid for the advice and negotiation grant.