Notes on Guideline 6.2 – FDRS in spousal maintenance disputes

Note: The following information provides guidance on how to interpret and apply guideline 6.2 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.

Where a grant of assistance is made for family dispute resolution, the service must be provided by our Family Dispute Resolution Service (FDRS).

For more information relating to Victoria Legal Aid's (VLA’s) FDRS, see Important information about FDRS.

(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 spousal maintenance matters

In considering merit, the lawyer must be satisfied 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 following:

  • 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 requirements

Discharge or vary orders

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

(c) Grants assessment process

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’
  • in the professional costs screen, select ‘A&N – Stage 1 Advice & Negotiations’.

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 as to 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 of fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline.