Note: The following information provides guidance on how to interpret and apply guideline 5.5 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 in child support matters. Additional information is available on:
(a) Eligibility criteria
Assistance may be available under this guideline where criteria A is met.
Criterion A
Refer to the notes linked to the following threshold tests:
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 following:
- the financial position of the applicant, the respondent and the child
- in adult child maintenance, the child’s needs and capacity to self-support
- capacity of the payer to pay maintenance or if the application will result in only a slight increase to a child maintenance, this may not warrant funding, given the expected costs of legal action
- where child maintenance is for only a short period (e.g. when a child is about to complete their education) 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) Other mandatory requirements
Where a party is not a parent of the child
Where the person seeking assistance is not a parent of the child, the lawyer must be satisfied that the person meets the requirements set out in section 66F of the Family Law Act 1975 (Cth).
Enforcement of orders
Where enforcement of arrears is sought, consider:
- the nature of the arrears e.g. legal assistance would not be available to enforce payment of private school fees
- amount of the arrears
- whether it is registered for collection by Services Australia (Child Support) and should be left in the hands of the agency, and
- if there are avenues to secure payment from the party who is in arrears.
The following provides additional guidance in applications for assistance for enforcement proceedings:
- the request for legal assistance should be made without unreasonable delay after the orders have been contravened
- the person requesting assistance for enforcement proceedings must seek a costs order against the other party from the court. For more information, refer to costs recovery
- we treat grants of assistance for enforcement proceedings as a new matter for the purposes of family law cost management. This means that we will not include the amount of the grant when calculating the cost ceiling for the substantive matter (see Family law costs management).
(c) Grants assessment process
Applications for assistance under this guideline must be lodged via ATLAS using the ‘simplified process – child support’ template, making the following selections:
- in the matters screen, under matter group select the primary matter e.g. ‘maintenance’ or ‘variation’ or ‘enforcement’ and then the appropriate matter type
- under costs and disbursements, select the required funding, depending on the matter type.
(d) Documentary requirements
The lawyer’s file must contain a file note that makes clear:
- how the matter meets each of the threshold tests
and
- where discharge or variation is sought, how the significant change in circumstances test is met
and
- where the person seeking assistance is not a parent of the child, how they met the requirements of section 66F of the Family Law Act 1975 (Cth)
and
- where enforcement is sought, details of the period of non-payment, nature and amount of arrears and proposed means of enforcement.
The file should also contain all other relevant notes, supporting evidence and documents.
(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 fee stages are available under this guideline, depending on the grant recommended:
- Stage 2C – Initiating litigation, Magistrates’ Court
- Stage 2D – Transfer from state Magistrates’ Court to FCFCOA
- Stage 2E – Initiating litigation, FCFCOA
- Stage 2F – Subsequent hearing, FCFCOA
- Stage 2G – Interim co ntest hearing, FCFCOA
- Stage 2H – litigation intervention FDRS or Court-based Dispute Resolution Conference (DRC)
- Stage 2I – Application for contravention, enforcement or contempt proceedings
- Stage 2L – transfer fee
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