Notes to the Commonwealth Family Law and Child Support Guidelines
Notes on the Commonwealth Family Law and Child Support Guidelines
Guidance for lawyers
Victoria Legal Aid
Table of Contents
1.Introduction
1.1Changes made to the guidelines in 2017
1.2Notes on the restructured guidelines
1.3Principles underpinning the guidelines
1.4How to apply for legal assistance
(a)Simplified Grants Process
(b)SGP matters assessed by Assignments (discretion requests)
(c)Matters not administered under the SGP
(d)Transfers
1.5Grants pathways
1.6Grants of assistance after final court orders have been made
1.7Applications in a Case
2.Documentary requirements
2.1General principles
2.2Timing
2.3Specific documents
3.Threshold tests......
3.1Commonwealth merits test
(a)The reasonable prospects of success test
(b)The prudent self-funding litigant test
(c)The appropriateness of spending limited public legal aid funds test
(d)Persons in custody and the merits test
3.2Forum test
(a)Proposed proceedings
(b)Proceedings already on foot
3.3Substantial issue in dispute test
(a)‘As agreed between the parties’ orders
3.4Contravention test
4.Important information about FDRS
5.Guideline 1 – Parenting disputes
Guideline 1.1 – advice and negotiation for adults in parenting disputes
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 1.2 – FDRS for adults in parenting disputes
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 1.3 – litigation for adults in parenting disputes
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 1.4 – appointment of an ICL in litigation relating to parenting disputes
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 1.5 – appointment of an ICL for litigation intervention FDRS in parenting disputes
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 1.6 – advice and negotiation for child litigants in parenting disputes
(a)Eligibility criteria
(b)Other mandatory criteria
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 1.7 – FDRS for child litigants in parenting disputes
(a)Eligibility criteria
(b)Other mandatory criteria
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 1.8 – litigation for child litigants in parenting disputes
(a)Eligibility criteria
(b)Other mandatory criteria
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 1.9 – advice and negotiation in combined parenting and property disputes
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 1.10 – FDRS for adults in combined parenting and property disputes
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 1.11 – litigation in combined parenting and property disputes
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
6.Guideline 2 – Recovery, location and information orders
Guideline 2.1 – assistance for a recovery order
(a)Eligibility criteria
(b)Other mandatory criteria
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 2.2 – assistance for a location or information order
(a)Eligibility criteria
(b)Other mandatory criteria
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
7.Guideline 3 – International child abduction
Guideline 3.1 – litigation in matters involving international child abduction
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 3.2 – FDRS in matters involving international child abduction
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 3.3 – appointment of an ICL for litigation relating to international child abduction
(a)Eligibility criteria
(b)Grants assessment process
(c)Fees and billing
Guideline 3.4 – appointment of an ICL for FDRS in matters involving international child abduction
(a)Eligibility criteria
(b)Grants assessment process
(c)Fees and billing
8.Guideline 4 – Parentage determinations
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
9.Guideline 5 – Child support and child maintenance
Guideline 5.1 – Advice and negotiation for adults in child support matters
(a)Eligibility criteria
(b)Other mandatory requirements
Where the person is not a parent of the child, the lawyer must also be satisfied that the person meets the requirements in the child support legislation.
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 5.2 – litigation and administrative review for adults in child support matters
(a)Eligibility criteria
(b)Other mandatory requirements
Where the person is not a parent of the child, the lawyer must also be satisfied that the person meets the requirements in the child support legislation.
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 5.3 – advice and negotiation for adults in child and adult child maintenance matters
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 5.4 – litigation for adults in child maintenance and adult child maintenance matters
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 5.5 – advice and negotiation for children in child support and child maintenance matters
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 5.6 – litigation for children in child support and child maintenance matters
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
10.Guideline 6 – Spousal maintenance
Guideline 6.1 – advice and negotiation in spousal maintenance disputes
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 6.2 – FDRS in spousal maintenance disputes
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
Guideline 6.3 – litigation in spousal maintenance disputes
(a)Eligibility criteria
(b)Other mandatory requirements
(c)Grants assessment process
(d)Documentary requirements
(e)Fees and billing
11.Guideline 7 – Special medical procedures involving children
Guideline 7.1 – litigation for adults for special medical procedures involving a child
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 7.2 – appointment of an ICL in litigation relating to special medical procedures involving a child
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
Guideline 7.3 – litigation for child litigants for special medical procedures involving them
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
12.Guideline 8 – Appeals
(a)Eligibility criteria
(b)Grants assessment process
(c)Documentary requirements
(d)Fees and billing
13.Notes on key definitions
Best interests of the child
Complex matter
Cultural or language barriers
Current reported allegations
Diagnosed psychiatric or psychological illness
Disability
Drug and/or alcohol issues
Family violence
Homelessness
Literacy barriers
Magellan matter
Priority FDRS client
Priority litigation client
Required section 60I certificate
Significant change in circumstances
Significant to the care, welfare and development of the child
Substantial contravention
Substantial issue in dispute
Urgent matter
Acronyms
AAT: Administrative Appeals Tribunal
AFP: Australian Federal Police
CSLS: Victoria Legal Aid Child Support Legal Service
DHHS: Department of Health and Human Services (Victoria)
FCA: Family Court of Australia
FCC: Federal Circuit Court
FDR: Family dispute resolution
FDRS: Family Dispute Resolution Service
FOI: Freedom of Information
ICL: independent children’s lawyer
SGP: simplified grants process
VLA: Victoria Legal Aid
List of tables and diagrams
Table 1: Seeking discretion from Assignments
Table 2: Required section 60I certificates
Diagram 1: Typical incremental fee pathway
Diagram 2: Fee pathways –FDRS to litigation
Diagram 3: Fee pathways –Advice and negotiation to litigation
Diagram 4: Guideline 1.2 – available fees
Diagram 5: Stage 2C grants – Initiating litigation, Magistrates’ Court
Diagram 6: Stage 2E – Initiating litigation, federal family courts
Diagram 7: Recovery order proceedings – available professional costs
Diagram 8: Recovery order flowchart
Diagram 9: Location or information order proceedings – available professional costs
Diagram 10: Location or information order flowchart
1.Introduction
These Notes provide guidance on how the Commonwealth Family Law and Child Support guidelines in the VLA Handbook for Lawyers (the Handbook) are interpreted and applied, and set out the requirements and conditions attached to family law grants of aid. They form part of the Handbook and are intended to be read with the Handbook and with the Simplified grants process: notes on VLA guidelines.
Lawyers applying for grants of assistance are required to apply both the guidelines and these Notes. Where there is any inconsistency between the Notes and the guidelines, the guidelines will prevail.
The Handbook can be obtained online at
Forms for use in theSimplified Grants Process (SGP)lawyers are also available online.
Any queriesrelating to the guidelines or fees should be directed to Assignments Family Law on phone: 9606 5355orby email .
1.1Changes made to the guidelines in 2017
In July 2017, Victoria Legal Aid (VLA)published redrafted family law and child support guidelines. Significant changes have been made to the structure and language of the guidelines to make them clearer, more consistent and easier to apply.
It was not our intention in redrafting the guidelines to expand or restrict eligibility criteria. In the process of addressing inconsistencies and anomalies however, some minor substantive changes have been made, some of which expand eligibility criteria.
The following minor substantive changeshave been made to the guidelines:
- Inclusion of drug or alcohol dependency as a vulnerability in the priority FDRS client definition. This must be linked to the person’s ability to participate in FDRS;
- Inclusion of Aboriginal and Torres Strait Islander people in in the priority litigation clientdefinition;
- Inclusion of disability in in the priority litigation client definition. This term covers ‘serious health condition or physical disability’ currently missing from the ‘priority matter’ definition and must be linked to the person’s ability to represent themselves in litigation or impact on the ability of the child to maintain a meaningful relationship with the person or another party;
- The guideline relating to assistance for nullity proceedings has been removed. Assistance may still be available for nullity proceedings under the Commonwealth special circumstances;
- Changing the wording in the guideline to clarify that we have extended availability for FDRS to alleged perpetrators in matters involving allegations of family violence; and
- Inclusion of a condition that a lesser fee is available for the first day of trial in matters appearing in the Less Adversarial Trial stream in the Family Court where the hearing is a directions hearing and no evidence is taken.
The following non-substantive changes have been made to the guidelines:
- The guidelines are now organised under matter type (parenting disputes, spousal maintenance, etc.), client type (adult or child) and service type (advice and negotiation, FDRS or litigation). This means that the numbering of guidelines has changed.
- Each guideline lists every applicable criterion that must be met for legal assistance to be granted to particular types of people (adults or children) and for particular services.
- Thepre-July 2017 terms of ‘priority client’ and ‘priority matter’ have been replaced with priority FDRS clientandpriority litigation clientrespectively. This makes it clearer to characterise which definition applies to which grant.
- The list of core client vulnerabilities in the two priority client definitions are now the same. This addresses unintended inconsistencies. These vulnerabilities must impact on the person’s ability to:
- participate effectively in FDRS (priority FDRS client), or
- run their own case in court,or impact on the child’s ability to maintain a meaningful relationship with them or the other party (priority litigation client)
The additional client characteristics of homelessness and experience or risk of family violence continue to be available under the priority client definition for FDRS.
- The criteria in the pre-July 2017 ‘priority matter’ definition relating to situations where there are risks to the wellbeing or safety of the child, continues to apply where assistance is sought for litigation. It is now coveredin criterion C of Guideline 1.3 – litigation for adults in parenting disputes.
- There is no longera separate guideline forthe following grants of assistance:
- discharge or vary existing parenting orders;
- contravention or enforcement of orders, or for contempt of court proceedings;
- parties who are not parents.
The same requirements continue to apply to these grants. Each relevant guideline now lists the criteria that apply in these circumstances. This minimises the need to move between different guidelines and different parts of the Handbook.
- Information about fees in child support and other family law matters has been combined in the fee tables. This has resulted in some minor renumbering, and in some instances renaming some stage-of-matter fees. For example, stage 1 for Independent Children’s Lawyer (ICL) matters has been renamed ‘First Court hearing and FDRS for ICLs’.
1.2Notes on the restructured guidelines
These Notes on the guidelines have been rewritten to match the restructured guidelines. We have used this opportunity to provide lawyers with additional guidance in the Notes.
You will find the following information to assist in the interpretation and application of the guidelines:
- Eligibility criteria: Detailed explanation of what is required to meet eligibility criteriaguideline requirements with examples;
- Grants assessment process: information on how to apply for funding at each stage as the matter progresses. This includes information on the professional coststhat should be recommended at each stage, the ATLAS template to be used and what information to provide to Assignments where VLA assesses eligibility;
- Documentary requirements: the documents required to be retained on the file (or uploaded to ATLAS for guidelines where VLA assesses eligibility) as evidence of compliance with the guidelines;
- Fees and Billing: the fees available for each stage of the matter, how to correctly claim at each stage of a matter, and the conditions attaching to grants.
The Notes use flow charts and other diagramsto illustrate certain aspects of fee pathways and grants assessment processes.They also provide links tofamily law worksheets which guide lawyers through the eligibility criteria and the documentary requirements that apply.
See theSimplified grants process: notes on VLA guidelines for more general information on applications under the SGP, including information on the means test and disbursements.
1.3Principles underpinning the guidelines
Principles derived from our statutory obligations under the Legal Aid Act1978 (Cth) are the driving force behind the family law guidelines.The following are examples of the way we apply these principles to meet our family law guideline requirements.
The Legal Aid Act requires us to ensure the monies allocated for legal assistance (the Legal Aid Fund) are distributed equitably. We usethe family law guidelines to ensure we provide assistance to as many people as possible from the limited fund. We need toensure that funding forthemore costly services, such as litigation,is available forthose most in need.
Peoplewho are most in need of legal assistance are thosein challenging circumstances–whether in their financial situation,the complexity of their legal matter,orin any personal vulnerabilities they face.We use guideline requirements such as priority FDRS client, priority litigation clientand urgent matter, as devices in to preserve the Legal Aid Fund for such people and matters.
We have an obligation under the Legal Aid Act to ensure that legal assistance is provided in the most efficient and economic manner possible. Hence these provisions in the guidelines:
- in most matters, the first grant should be for FDRS, to ensure the parties have the best opportunity to settle the dispute without going to court;
- child support and child maintenance matters are primarily handled by VLA in-house lawyers;
- we expect lawyers to issue proceedings in the lowest court with appropriate jurisdiction to hear the matter;
- we expect that costs orders will be sought where appropriate. This is a condition under certain grants.
1.4How to apply for legal assistance
(a)SimplifiedGrants Process
The SGP is the process by which lawyers on the section 29A practitioner panelsand in-house lawyers apply for grants of legal assistance[1]. ATLAS is our online system for lawyers to lodge and track legal aid applications. All applications for grants of legal assistance, extensions of assistance and claims must be submitted via ATLAS. For more information on the SGP, see part10 – Simplified grants assessment process in the Handbook.
Under the SGP, lawyers are required to assess matters for eligibility under the applicable guideline. The SGP does not involve a delegation of VLA’s power to approve legal assistance to lawyers. The SGP relies on a lawyer’s certification that a matter meets the relevant VLA Guideline.
We will assess the application for assistance based on the lawyer’scertification that the matter meets the relevant guideline and that they have the relevant documentary proof to support that certification. Assistance is usually approved on such recommendations and certifications if the means test is satisfied. Lawyers should not proceed with work on the file until confirmation of the grant of legal assistance is received from VLA.
The documentary requirements that apply to each guideline are set out in these Notes.
If you areunsure if the matter meets the guideline or the threshold tests, you may use the discretion function in ATLAS (see Table 1 below).
Not all applications for assistance under the guidelines require lawyers to assess eligibility or are administered under the SGP. For more information see SGP matters assessed by Assignments (discretion requests)and Matters not administered under the SGP.
Means test
Lawyers do not assess eligibility under the means test. They are required to disclose the person’s full financial circumstances and retain documentary proof of means which substantiates the information in the application form.
Lawyers are required to obtain updated proof of means every 12 months for family law matters and retain them on file. They must also update the client’s details via ATLAS if there have been any changes in financial circumstances.