Guideline 1 – early intervention and dispute resolution
Guideline 1 – early intervention and dispute resolution
Applicants for legal assistance who are found by a court within the last 12 months to have contravened a Federal Circuit Court or Family Court of Australia order without reasonable excuse will not be eligible for a grant of legal assistance under this guideline or will have their grant of legal assistance terminated.
1.1 – Advice and negotiation
VLA may provide an applicant for assistance with an advice and negotiation grant where:
- It is the first request for assistance; and
- Guidelines 1.2, 1.3 or 2 have been met; and
- The practitioner considers that the matter may be resolved through early advice, negotiation and exchange of letters.
Where the dispute does not resolve and proceeds to either a grant for VLA Family Dispute Resolution Service (under this guideline 1) or litigation (under guideline 2) the subsequent grant will be reduced by the amount paid for the advice and negotiation grant (with the exception of recovery order grants which will not be reduced).
1.2 – Parenting Orders
VLA may provide a grant of assistance for early intervention and dispute resolution in relation to parenting orders where there is:
- a dispute about a ‘substantial issue’; and
- the person is a ‘priority client’.
1.3 – Property
VLA may provide a grant of assistance for early intervention and dispute resolution in relation to property matters where assistance is also granted for parenting orders under paragraph 1.2 above and either of the following applies:
- one party is seeking to retain the family home (where their equitable interest is $500,000 or less) and the applicant for assistance will receive no payment; or
- the matter involves a superannuation split and/or a pool of equity less than $50,000 (excluding superannuation).
Victoria Legal Aid Family Dispute Resolution Service
Victoria Legal Aid Family Dispute Resolution Service is our in-house family dispute resolution service. If a grant of legal assistance requiring the services of a family dispute resolution practitioner is made, then Victoria Legal Aid Family Dispute Resolution Service must provide those services.
Services during litigation
VLA may make a grant of legal assistance for the Victoria Legal Aid Family Dispute Resolution Service while litigation is ongoing if, as a result of litigation, the issues in dispute have narrowed to such an extent that it is possible a non-litigation approach will bring about a final settlement. VLA expects practitioners to consider whether a matter is suitable for Victoria Legal Aid Family Dispute Resolution Service litigation intervention once a matter has been set down for trial and before a request is made for an extension of assistance for preparation for trial.
Deferral of a grant of legal assistance for litigation
If VLA has decided to make a grant of legal assistance for litigation but the lawyer for one of the parties then recommends the Victoria Legal Aid Family Dispute Resolution Service, VLA will defer providing a grant of assistance for litigation until the outcome of the process is known.
Guideline 1 Definitions
Substantial issue is an issue that:
- is likely to have a significant impact on the child’s safety or welfare; or
- where the dispute is about with whom a child is to live; or
- where the dispute is about the child’s right to spend time with their parents or significant others.
Examples of disputes about a substantial issue are:
- where and with whom the child is to live;
- whether 'time spent' should not be allowed;
- whether 'time spent' should be supervised;
- whether 'time spent' should be allowed overnight rather than only during daytime;
- whether a parent should be allowed to relocate to another state or country or a significant distance within the same state;
- whether a parent who spends time with the child should allow another person to be present during that time, where there are current allegations of violence or child abuse against that other person.
Examples of disputes that are not considered substantial are:
- who should pay for travel costs associated with 'time spent';
- which school the child should attend;
- 'time spent' for birthdays, Christmas or other significant celebrations;
- proportionately small changes to the number of hours of time spent (unless the child is of pre-school age), for example:
- where the child is under the age of two years, a change of a number of hours in time spent may be considered substantial
- where the child is aged two–six years, a half-day change in time spent may be considered substantial;
- where there is no issue in dispute and the parties are seeking to formalise existing parenting arrangements;
- the only issue between the parties is that they have difficulty communicating;
- the only issue between the parties is the place where changeover occurs.
Priority client is a person:
- with an assessed intellectual disability, diagnosed acquired brain injury, diagnosed psychiatric or psychological illness, diagnosed serious health condition or serious physical disability, which makes that person unable to participate effectively in family dispute resolution without legal representation; and/or
- who experiences cultural barriers, which make that person unable to participate effectively in family dispute resolution without legal representation; and/or
- who is experiencing homelessness; and/or
- who identifies as an Indigenous Australian; and/or
- who has experienced or is at risk of experiencing family violence; and/or
- whose child has experienced or is at risk of experiencing child abuse or family violence; and/or
- who is illiterate; and/or
- who has a matter currently before the court where the proposal or conduct of a party substantially prejudices the ability of a child to maintain a meaningful relationship with one or both parents.