Notes on guideline 1.3 – litigation for adults in parenting disputes

(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 priority FDRS client definition.

Criterion C

Child’s wellbeing and/or safety at risk

The child’s wellbeing and/or safety being at risk due to abuse, neglect or family violence is central to eligibility under criterion C. The risk must relate to the child and not to either of the parties in the proceedings.

The extent of the risk must be that it is likely to result in court orders that will significantly limit the relationship between the child and one of the parties, or change residential arrangements for the child. The threshold for a ‘significantly limited relationship’ is high. It would usually mean orders that prevent a child from spending time with the party, or only allow for supervised time or very limited time with the party.

For a recommendation to be made under this criterion, the other party must be seeking orders, whether interim or final, of this nature. It is not sufficient to assert that the court is likely to make such orders even though another party is not seeking them. If the other party seeks orders that allow for significant and unsupervised time, the person seeking assistance will not be eligible under this criterion.

An exception to the above is where independent reports or assessments are produced in the course of proceedings detail a greater risk to the child than that which is reflected in the parties’ applications. In these circumstances, we expect the application to be amended to reflect the risks identified in the reports.

Where a lawyer is unsure whether this criterion is met, discretion should be sought.

An assessment under this criterion involves the lawyer surmising what the likely outcome of the court proceedings will be. The assessment of what orders the court is likely to make is closely connected to the assessment of merits under the Commonwealth merits test and is intended to be based on the information available to the lawyer and the exercise of their professional judgment.

Higher level of risk required

The level of risk to the child under this criterion is higher than the level of risk required under a grant for advice and negotiation or for FDRS (criterion E of Guideline 1.1 and criterion C of Guideline 1.2).

Under guidelines 1.1 and 1.2, the mere fact that allegations of risk to child have been made is sufficient to satisfy the criterion. Under guideline 1.3, the allegations of risk to the child must be sufficiently serious to justify an assessment that the court is likely to make the orders sought by the other party, or similar orders, which significantly limit the relationship between the child and one of the parties, or change residential arrangements for the child.

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:

• 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.

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 three subsequent hearings. 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.

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.