Notes on Guideline 1.1 – advice and negotiation for adults in parenting disputes

Note: The following information provides guidance on how to interpret and apply guideline 1.1 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.

(a) Eligibility criteria

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

Criter ion A

The advice and negotiation grant is intended as a first step in attempting to resolve a dispute with minimal legal intervention. For that reason, a grant for advice and negotiation can only be the first grant recommended in a dispute, and can only be granted once in a dispute.

Criterion B

An advice and negotiation grant may be useful after family violence protection order proceedings where it is evident to the lawyer that care arrangements for the children are likely to be resolved with negotiation, but it is not appropriate for the affected family member to be pressured to reach agreement in the family violence proceedings.

Criterio n C

Refer to the notes linked to the following threshold tests:

Criterion D

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

Criterion E

Risk to the wellbeing and/or safety of the child

An assessment of whether the matter satisfies this requirement is to be made by the lawyer based on the instructions provided by the client.

The assessed risk must relate to the child and not to the person applying for assistance.

The mere fact that allegations of risk to child have been made is sufficient to satisfy this criterion. Unlike the criterion attaching to the litigation guideline, there is no requirement that the seriousness of the allegation be assessed.

Risk to wellbeing or safety of child – Example A

The child lives with the mother and spends alternate weekends with the father. The child has reported to the mother that the father has re-partnered and the child has witnessed physical altercations between the father and his new partner. The mother may be eligible for assistance to seek orders that would prevent the child from further exposure to family violence.

Risk to wellbeing or safety of child – Example B

The mother and father have a shared care (week about) parenting arrangement with the child. The father alleges that the mother suffers from depression and that her time with the child should be reduced. The farther would not be eligible for assistance on this information alone. The father would need to be able to show that the mother’s mental health places the child at risk of abuse, neglect or family violence. This may be the case where the mother’s depression results in her spending most of the day in bed leaving the child unsupervised.

Child’s ability to maintain a meaningful relationship

Factors that may be relevant when assessing whether the ability of the child to maintain a meaningful relationship will be substantially prejudiced include:

  • the age of the child
  • the nature of past or usual care arrangements
  • the impact of the child having supervised contact
  • the nature of the relationship prior to separation
  • the capacity of the parent and/or child
  • the ability for involvement in the child’s school or activities.

Determining what is required to maintain a meaningful relationship between a parent or another person and a child is not based solely on what that parent or person believes is required. While the person’s views are relevant, this is an objective assessment.

Where one party is seeking orders for the child to have no contact, very limited contact, irregular contact or professionally supervised contact, the matter is likely to fall within this requirement.

Ability to maintain a meaningful relationship not substantially prejudiced – Example A

The child is six months old and lives with the paternal grandparents. The mother has day time contact with the child four days a week. The paternal grandparents seek to reduce the mother’s time to two days a week due to the difficulty for them in travelling to the time with location. The paternal grandparent’s proposal would substantially prejudice the child’s ability to maintain a meaningful relationship with the mother.

The parenting arrangements sought by the parties may, at times, meet the substantial issue in dispute criteria but will not substantially prejudice a child’s ability to maintain a meaningful relationship.

Ability to maintain a meaningful relationship not substantially prejudiced – Example B

A father seeks to increase time with his 10-year-old child from three nights a fortnight to six nights a fortnight and the mother refuses the increased time. While there would be a substantial issue in dispute, the child’s ability to maintain a meaningful relationship with her father would not be prejudiced.

Ability to maintain a meaningful relationship not substantially prejudiced – Example C

The child is 13 years old and spends alternate weekends with his father from Friday evening to Monday before school. The mother wishes to change the arrangement from Saturday mornings to Mondays due to her work schedule. The mother’s proposal would not substantially prejudice the father’s relationship with the child.

Where one party wishes to relocate interstate or overseas, it is likely that this criterion will be met. However, the lawyer must have serious regard to the Commonwealth merits test when assessing applications for assistance made by the party wishing to relocate.

Allegations that there is or has been a risk of family violence

Refer to the notes on family violence.

(b) Other mandatory requirements

Where a party is not a parent of the child

Refer to the notes linked to the definitions of:

Discharge or vary orders

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

(c) Grants assessment process

A grant for advice and negotiation is available for the first grant in a dispute (ie on extension zero only). An application 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 stage 1 in the professional costs screen, select ‘Advice and Negotiations’
  • where FDRS or litigation funding has been recommended but no claims have been made, and the lawyer forms the view that funding should instead be in place only for advice and negotiation, this should be requested in a new application. The lawyer should submit correspondence on the first file advising that an advice and negotiation grant will be requested on a fresh application, and ensure that the previous file is closed by submitting a file outcome via ATLAS.

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

(d) Documentary requirements

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

  • that no previous applications have been submitted in relation to the current dispute
  • how each of the threshold tests are met
  • how criterion D or E are 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 sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

The following documents to support claims made under the grant should be retained on the file:

  • consultations with the client, including appointments and telephone attendances
  • advice provided to client both oral and written
  • negotiations conducted with the other party or their lawyer, including telephone attendances and letters
  • letter to the client advising of the outcome of the negotiations and details of any further action to be taken
  • a copy of consent orders filed with the court, if this fee has been claimed.