The substantial issue in dispute test applies primarily in parenting dispute matters, including for grants of assistance for advice and negotiation, family dispute resolution at Victoria Legal Aid's (VLA's) Family Dispute Resolution Service (FDRS) and litigation. The test does not apply in the following matters:
- the appointment of ICLs
- international child abduction
- parentage determinations
- child support and child maintenance
- spousal maintenance
- special medical procedures involving children
Substantial issue in dispute – Example A
The parents have a shared care (week about) arrangement for their seven-year-old child. The child attends school while living with the mother and is home -schooled by the father. The mother disagrees with the father’s home schooling and seeks assistance for orders that the child attend the same school while living with the father.
This is likely to be considered a substantial issue in dispute.
Substantial issue in dispute – Example B
A six-year old child lives with the mother and spends alternate weekends with the father from Saturday morning until Monday morning. The father is seeking assistance to increase the time spent with the child from Friday evening to Monday morning.
Unless it could be demonstrated that there is a risk to the child’s safety or welfare under the current arrangement, which the proposed change would address, the dispute about increasing time with the father is unlikely to be considered a substantial issue in dispute.
Disputes no longer considered substantial – Example A
The substantial issue in dispute is who the child should live with. The parties attend VLA FDRS, where no resolution is reached. Proceedings are initiated in the FCC, and a trial date is set down. Prior to trial, the parties come to an agreement that the child should live with the mother and spend time with the father, but the parties cannot agree on a roster for the rotation of school holidays. There is no longer a substantial issue in dispute, and the lawyer must advise VLA.
Disputes no longer considered substantial – Example B
The parties cannot agree on the following issues:
- whether 'time spent’ with the child should be supervised
- who should pay for travel costs associated with 'time spent', and
- who the child should spend their birthday with.
The parties attend VLA FDRS, where no resolution is reached. Proceedings are initiated in the FCC, and a trial date is set down. A month before the trial date, the parties come to an agreement that supervised 'time spent' is not appropriate, but can still not resolve the issues of travel costs and birthdays.
There is no longer a substantial issue in dispute. The lawyer must immediately advise VLA there is no longer a substantial issue in dispute, and where the court hearing is imminent, file a notice of intention to withdraw with the court.
Disputes no longer considered substantial – Example C
The substantial issue in dispute is who a 13-year old child should live with, and how much time the child should spend with each party. Proceedings have been initiated in the FCC. At an interim hearing, orders are made by consent that the child should live with the father and have contact with the mother on weekends, and a trial date is set down. The mother seeks a grant of assistance to prepare for trial on the basis that she still seeks an additional two hours each week to have a meal with the child.
There is no longer a substantial issue in dispute, and the lawyer should advise in the guideline statement of the application that the guideline is ‘not satisfied’ for preparation and trial costs. Reasons for the recommendation must be provided.
‘As agreed between the parties’ orders
We expect lawyers to seek orders that specifically set out who the child is to live with and what time should be spent with the other party as well as any conditions attached to time with. Lawyers should not seek orders ‘as agreed between the parties’. Where such orders are sought, assistance would be refused on the basis that the parties can resolve the matter themselves and/or that there are no substantial issues in dispute.
Reviewed 24 January 2022