Note: The following information provides guidance on how to interpret and apply guideline 1.3 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. Additional information is available on:
(a) Eligibility criteria
Assistance may be available under this guideline where the following criteria are met:
- for applicants in proceedings: A, and B or C, and D.
- for respondents in proceedings: A, and B or C.
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 definition.
Criterion C
Refer to the notes under criterion E in Guideline .
Criterion D
This criterion only applies to applicants in legal proceedings.
Refer to the notes linked to the definitions of required section 60I certificate and urgent matter.
(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.
Contravention and contempt of court
Refer to the notes linked to the definition of substantial contravention of the orders.
(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 either by way of a ‘new application’ or an ‘extension’. The lawyer should make the following selections:
- under ‘court hearings’, select ‘yes’ and advise of the appropriate court
- under stage 1 in the professional costs screen, select the required funding under the appropriate court.
The broadband stage 2E grant consists primarily of the initial preparation and appearance lump sum and one subsequent hearing. On the rare occasion where funding is required for a further subsequent hearing, an extension request needs to be submitted requesting a stage 2F grant, outlining why further funding is required.
If the lawyer needs to provide additional information, this should be done by using the ‘submit correspondence’ function.
Moving from Division 2 to Division 1 of the Federal Circuit and Family Court (FCFCOA)
If a matter is transferred from Division 2, to Division 1 of the FCFCOA, the lawyer is required to update the ‘court type’ when submitting the next extension in relation to the matter via ATLAS.
If the matter is still at the interim court stage, then no further action is required given the same fee tables apply for both courts. If the matter is listed at trial stage, then the lawyer should submit a new extension via ATLAS and request the appropriate Family Court trial grant.
(d) Documentary requirements
The lawyer’s file must contain a file note that makes clear:
- how each of the threshold tests is met
- how criterion B or C is met
- where relevant, how criterion D is met (applies to applicants in proceedings only). Evidence must be retained on the file showing:
- that there has been an attempt to resolve the dispute by attending FDR and that a required section 60I certificate has been issued in relation to the dispute, or
- where a required section 60I certificate has not been issued in relation to the dispute, that it is an urgent matter.
- 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 2 of fee table 4.1, sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.
Stage 2C – Initiating litigation, Magistrates’ Court
If a barrister is briefed to appear at a hearing, they must be paid directly. The fee payable to the barrister is deducted from the lump sum grant. For more information, see the Step by step ATLAS guides.
The grant allows for service fees, conduct money and filing fees up to a set amount. If further funding is required, a special disbursement extension must be submitted. Filing fees cannot be claimed where the client is entitled to an exemption of those fees. The grant allows a set amount for freedom of information (FOI) requests, title search fees and title lodgement fees.
No fees are payable for administrative adjournments.
Additional fees under the stage 2D grant become available if the matter is transferred to the FCFCOA. No extension request is required.
Snapshot of fees available when initiating litigation, Magistrates’ Court
Stage 2C (lump sum):
- lump sum includes all appearances at the Magistrates' court
- if advice and negotiations grant (1A) claimed on previous extension, fee reduced by amount of 1A grant
- if counsel briefed, appearance fee paid directly to counsel
- no distance fee available for appearances in the Magistrates' court.
Stage 2D (transfer):
- payable for the first appearance where the matter is transferred to the FCFCOA
- if counsel briefed, appearance paid directly to counsel
- distance fee payable where the lawyer’s office is more than 50km from the court (payable for travel or to brief counsel).
Stage 2F (subsequent hearing):
- one subsequent hearing, one compliance and readiness hearing and one trial management hearings available under the broadband grant (payable once transferred to the FCFCOA)
- if counsel briefed, appearance fee paid directly to counsel
- distance fee payable where the lawyer’s office more than 50km from the court (payable for travel or to brief counsel).
Stage 2E – Initiating litigation, Federal Circuit and Family Court (FCFCOA)
If a barrister is briefed to appear at a hearing, they must be paid directly. For more information, see the Step by step ATLAS guides.
The broadband grant allows for one subsequent hearing, one compliance and readiness hearing and one trial management hearing payable where the matter is listed in the duty list at the interim stage.
The grant allows for service fees, conduct money and filing fees up to a set amount. If further funding is required, a special disbursement extension must be submitted. Filing fees cannot be claimed where the client is entitled to an exemption of those fees. The grant allows a set amount for FOI requests, title search fees and title lodgement fees.
No fees are payable for administrative adjournments.
Snapshot of fees available when initiating litigation, FCFCOA
Stage 2E (lump sum):
- if advice and negotiations grant (1A) claimed on previous extension, fee reduced by amount of 1A grant
- if counsel briefed, appearance fee must be paid directly to counsel
- distance fee payable where the court is more than 50kms from the lawyer's office (payable for travel or to brief counsel).
Stage 2F (subsequent hearing):
- one subsequent hearing, one compliance and readiness hearing and one trial management hearing are available under the broadband grant (no extension required)
- if counsel briefed, appearance fee must be paid directly to counsel
- distance fee payable where the lawyer’s office is more than 50km from the court (payable for travel or to brief counsel)
- if further subsequent hearings are needed, the lawyer will need to seek an extension.
Stage 2G (interim contested hearing):
- not available under the broadband grant. An extension of assistance must be sought
- The term ‘interim contested hearing’ covers court events where the parties are not in agreement about what arrangements should be in place until the matter can be finally determined, and the court conducts a hearing in order to make interim orders pending final hearing. The interim contest hearing fee is only available when the matter is listed for an interim hearing, an interim contested hearing or interim defended hearing.
- if counsel briefed, appearance fee paid directly to counsel
- circuit fees payable
- distance fee payable where the lawyer’s office is more than 50km from the court (payable for travel or to brief counsel).
The following should be retained on the file to support claims made under the grant:
- record of consultations with client (including appointments and telephone attendances);
- record of advice provided to client (oral and/or written);
- record of negotiations conducted with the other party or their legal lawyer (including telephone attendances and letters);
- conference notes and details;
- copies of the Section 60I certificate and the chairperson’s report.
Reviewed 31 December 2023