The reasonable prospects of success test

The reasonable prospects of success test

The person seeking a grant of assistance must give enough information to their lawyer (if any) or to Victoria Legal Aid (VLA) to satisfy VLA that, legally and factually, the proposed action, application, defence or response for which the person seeks a grant of assistance is more likely than not to succeed.

This requires much more than just having an arguable case, and more than having a 50/50 chance of success.

Examples of relevant issues in a family law matter

For example, in a family law proceeding about with whom a child is to spend time, the following issues will be relevant to the ‘reasonable prospects of success’ of the proceeding:

  • the total number of hours per week with the child sought by the person who is applying for a grant of assistance
  • whether anyone will supervise the time and, if so, who and for how long the supervision should continue
  • whether the time spent will be during daylight only or whether it includes overnight stays
  • the practical arrangements for travel and the timing of spending time if the parties live a significant distance apart
  • any restrictions on contact with third parties during the time spent by the child
  • any conditions, such as drug or alcohol screening or attending an anger management course
  • any other available information, evidence and material, including:
    • information about any related criminal proceedings or proceedings in the Family Division of the Children’s Court
    • any information about the opinion of the independent children’s lawyer.

Specific family law examples

  • A father has not seen his child, aged 4, for the past 18 months. The father is unlikely to succeed in getting interim orders for the child to spend 48 hours per fortnight, including overnight, with him. However, the father may be more likely to get interim orders for a limited amount of time of two hours per fortnight, graduating to an eight-hours-per-fortnight daytime contact in four months’ time.
  • A mother has a history of heroin addiction. She now claims to be drug-free and lives with her child’s maternal grandmother in Wodonga. Her 10-year-old child lives with the father in Melbourne. The mother now wants her child to spend time with her. The father is unlikely to get final orders that the child spend no time at all with the mother. However, the father will be more likely to succeed in getting orders that:
    • the time the child spends with the mother be limited to one weekend per month
    • the maternal grandmother be substantially attending during that time
      and
    • the time spent with the mother be conditional on the mother giving clear urine screen results for the first six months.