Notes on Guideline 5.1 – Advice and negotiation for adults in child support matters

(a) Eligibility criteria

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

Criterion 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

Examples of assistance to clients:

Services Australia internal administrative review processes

The lawyer can help clients to navigate Services Australia internal review processes, obtain information and to complete a child support form. The most common forms are:

• Change of Assessment – e.g. where a parent’s financial capacity is not adequately reflected in the child support assessment
• Objection – where a parent objects to a decision made by the child support registrar.

Underpayment or non-payment of child support

Where the client has registered their case for collection with Services Australia, the lawyer can get details of the arrears, undertake searches (such as property and company searches), provide client instructions (such as sources of income and assets held by the payer parent) and seek that Services Australia take reasonable collection action on behalf of the client. Use a Representative Authority form or the client can notify Services Australia verbally.

Parentage disputes

Clients need help where Services Australia has rejected their application for a child support assessment due to insufficient proof of paternity. The lawyer can contact the alleged father to acknowledge paternity by either signing a form Commonwealth of Australia Statutory Declaration – you are a parent of the children named or agree to undergo parentage testing. A disbursement is available for the cost of parentage testing.

If proceedings are required to be initiated, refer to Guideline 4.

Criterion C

Refer to the notes linked to the following threshold tests:

• forum test
• Commonwealth merits test
• means test
• contravention test.

and to the following supplementary information.

Commonwealth merits test and child support matters

When assessing the cost/benefit of an application for assistance under this guideline, the lawyer must take into account:

• the financial position of the applicant, the respondent and the children
• whether the issues in dispute can be narrowed, progressed or resolved with minimum time, cost and stress.
• where the dispute relates to only a short period of the child support assessment or before the child support case ends (e.g. when a child is about to turn 18) this may not justify the cost of taking action
• where the amount of the arrears or debt sought is $1000 or less this will not justify the cost of taking action.

(b) Grants assessment process

Applications for assistance under this guideline must be lodged via ATLAS.

There are two options:

Option one

If the client is in receipt of a Centrelink benefit and/or in receipt of or entitled to Family Tax Benefit of more than the minimum rate, use the ‘child support - early intervention means test’ template.

Option two

For all other clients, use the ‘simplified process – child support’ template.

Make the following selections:

• in the matters screen, select ‘child support’ under ‘matter group’ and then the appropriate matter type
• under ‘court hearings’, select ‘no court proceedings’
• under professional costs, select ‘Advice and Negotiations’

Where advice and negotiation for adults in child support matters funding is in place, and parentage is in dispute/unclear, a disbursement for parentage testing can be sought in the circumstances below.

Disbursement for parentage testing

Where the alleged father agrees to undergo parentage testing, apply for an extension of aid using the same template that was selected (i.e. Option one or Option two) as follows:

• under matter type, select ‘parentage testing’
• under court hearings, select ‘no court proceedings’
• under professional costs, select ‘no professional costs’
• under disbursements, at ‘Other Reports’, select ‘paternity testing’.

To initiate / respond to proceedings in the State Magistrates’ Court

Where there is no agreement to undergo parentage testing and an application is required to seek a declaration that a person should either be assessed or not assessed in respect of child support, with interim parentage testing orders, refer to guideline 4 and apply for an extension of aid using the same template that was selected (i.e. Option one or Option two).

(c) 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.

and

• how the matter meets each of the threshold tests.
• if a client is relying on the child support early intervention means test, that there is a copy of their Centrelink card or statement to verify that the client is in receipt of Centrelink Benefits and/or that they receive or are entitled to Family Tax Benefits (FTB) Part A of more than the minimum rate.

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

(d) 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.

Fees for this grant can only be claimed where the advice and negotiations take place prior to litigation (ie this is the first grant in the dispute).

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
• details of contact with Services Australia including telephone attendances, letters and copy of completed forms
• 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, where applicable.