Notes on Guideline 6.1 – advice and negotiation in spousal maintenance disputes

Note: The following information provides guidance on how to interpret and apply guideline 6.1 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.

(a) Eligibility criteria

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

Criterion A and B

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 C

Refer to the notes linked to the following threshold tests:

and to the following supplementary information.

Commonwealth merits test and spousal maintenance matters

In considering merit, the lawyer must satisfy Victoria Legal Aid that:

  • the applicant for assistance cannot obtain the order by consent
  • the other party’s whereabouts are known
  • there is good reason to believe that the other party has the capacity, or is likely to have the capacity in the future, to pay to the applicant either spousal maintenance, or increased maintenance.

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

  • the financial position of the applicant and the respondent.

Where there is no apparent capacity to pay spousal maintenance or the orders sought would result in only a slight increase in spousal maintenance, the matter is unlikely to meet the merits test, given the expected costs of legal action;

  • the duration of the payments - spousal maintenance for only a short period may not justify the cost of taking action;
  • where arrears are sought, the amount of the arrears or debt. Arrears of $200 debt will not justify the cost of taking action.

(b) Other mandatory require ments

Discharge or vary orders

Refer to the notes linked to the definition of significant change in circumstances.

(c) Grants assessment process

A grant for advice and negotiation is available for the first grant in a dispute (ie on extension zero only). An application must be lodged via ATLAS using the ‘simplified process FDRS & stage 2’ template, making the following selections:

  • In the maintenance screen select ‘Main applic spouse’
  • under ‘court hearings’, select ‘no court proceedings’
  • under stage 1 in the professional costs screen, select ‘Advice and Negotiations’.

Where FDRS or litigation funding has been recommended but no claims have been made, and the lawyer then assesses that funding should instead be in place only for advice and negotiation, this should be requested via a new application. The lawyer should submit correspondence on the first file advising that an advice and negotiation grant will be requested on a fresh application, and ensure that the previous file is closed by submitting a file outcome via ATLAS.

If the lawyer needs to provide additional information, this should be done by using the ‘submit correspondence’ function.

(d) Documentary requirements

The lawyer’s file must contain a file note that makes clear:

  • how the matter meets each of the thresholds tests
  • details of the other party’s capacity to pay
  • where discharge or vary orders are sought, how the significant change in circumstances test is met.

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

(e) Fees and billing

Stage 1, Fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline.