Notes on Guideline 1.8 – litigation for child litigants in parenting disputes

Note: The lawyer is not required to assess eligibility under this guideline. Applications are submitted to ATLAS for assessment by Victoria Legal Aid (VLA).

The following information provides guidance on how to interpret and apply guideline 1.8 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 for child litigants. 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 and B

Examples of where VLA may consider it appropriate for the child litigant to participate in an Family Dispute Resolution Service (FDRS) conference:

  • where the child is the parent in a dispute
  • where the child is a sibling in the dispute and wants contact with another sibling, or
  • where a child wishes to remove or put in place a watch list order (eg where the child may be sent overseas for an arranged marriage).

The child must be sufficiently mature to give instructions to a lawyer.

Part 5.1.1of 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

Refer to the notes linked to the following threshold tests:

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.

A copy of the required section 60I certificate or details of how this matter is an urgent matter, as well as details of the significant change in circumstances a must be provided with the application form.

(b) Other mandatory criteria

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 and on contravention, enforcement and contempt of court proceedings.

(c) Grants assessment process

An application for a grant of assistance under this guideline must be lodged via ATLAS using the ‘VLA Assessed – 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 ‘professional costs’, select the required funding under the appropriate court.

The broadband stage 2E grant consists mainly 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, outlining why further funding is required.

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.

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

Lawyers submitting an application under this guideline must ensure that evidence supporting the application is uploaded to ATLAS with the application. This should include:

  • the lawyer’s assessment that the child is sufficiently mature to give instructions
  • how both criteria A and B of the guideline are met
  • how each of the thresholds tests are 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 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 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

Refer to notes on Guideline 1.3, Fees and billing.