Guideline 1.3 – litigation for adults in parenting disputes

Guideline 1.3 – litigation for adults in parenting disputes

Victoria Legal Aid (VLA) may make a grant of assistance to an adult for litigation in a parenting dispute to:

  • apply for or respond to an application for a parenting order
  • apply for or respond to an application to discharge or vary existing parenting orders
  • apply for or respond to an application for contravention or enforcement of parenting orders or for contempt of court

where

  1. the following threshold tests are met:

and the person is either

  1. a priority litigation client

or

  1. allegations have been made that indicate there is a risk to the wellbeing and/or safety of the child from being subjected or exposed to abuse, neglect or family violence.

In order to satisfy this criteria, the level of risk must be such that there is a likelihood that orders will be made that either:

  1. result in a significantly limited relationship between the child and one or more of the parties
    or
  2. change residential arrangements for the child.

and

  1. where the person applying for assistance is the person who is making the application to the court, there is evidence kept on the file showing:
    1. that there has been an attempt to resolve the dispute by attending family dispute resolution and that a required section 60I certificate has been issued in relation to the dispute
      or
    2. where a required section 60I certificate has not been issued in relation to the dispute, that it is an urgent matter.

Being issued with a required section 60I certificate doesn't always mean that a grant of assistance to attend the Family Dispute Resolution Service (FDRS) is inappropriate. Even where a section 60I certificate has been issued, the lawyer must consider whether attendance at FDRS is appropriate and could help the parties to resolve the dispute, before applying for a litigation grant. This doesn't apply if the matter is an urgent matter.

Other mandatory requirements

As well as the requirements set out in Guideline 1.3, additional criteria apply in the following circumstances:

Where a person is not a parent of the child

Legal assistance in parenting matters is most commonly granted to one or both of the parents of the child. Where the person is not a parent of the child, VLA must also be satisfied that:

In determining the best interests of the child, where there are state child protection orders in place or child welfare proceedings on foot, we may grant assistance to a person who is not a parent of the child where the orders or proposed orders are in favour of that person.

Discharge or vary orders

Where the person is applying for assistance to discharge or vary existing parenting orders, there must also have been a significant change in circumstances since the parenting order was made.

If the 'significant change in circumstances' has been caused by the applicant, we will consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the applicant.

Contravention or c​ontempt of court

Where the person is applying for assistance for contravention of final or interim parenting orders, or for contempt of court, the allegations must be that there has been a substantial contravention of the orders.

The following applies to grants of assistance for contravention and contempt proceedings:

  • in matters involving contempt of court, where the person applying for assistance is alleged to be the person who has contravened the order, the severity of any penalty which may be imposed is relevant in determining whether the request for assistance meets the Commonwealth merits test
  • in matters involving contravention, the request for assistance should be made without unreasonable delay after the orders have been contravened
  • the person applying for assistance must seek a costs order against the other party from the court. If the other party also has a grant of assistance in the matter, this condition does not apply.
  • we treat grants of assistance for contravention and contempt of court proceedings as a new matter for the purposes of family law cost management. This means we will not include the amount of the grant when calculating the cost ceiling for the substantive matter.

Documentary requirem​ents

Applications for assistance under this guideline are within the simplified grants process and are submitted through our online lodgment service, ATLAS. Lawyers submitting an application must ensure that evidence supporting the application is kept on the file.

Lawyers are also encouraged to complete a Family law worksheet and a Proof of means worksheet for their file, available on the Invoice, forms and worksheets page.

Ongoing assessment that client meets the guidelines

The lawyer must inform us if, at any point during the life of the grant, they are no longer satisfied that the client meets the guideline, including the Commonwealth merits test and the substantial issue in dispute test.

Fees available

For information about fees available for a grant under this guideline, see Fee table 4.1.

Costs where an Independent children’s lawyer (ICL) is appointed

In matters where an ICL is appointed, parties may be required to contribute to the costs of the ICL. For more information, see Contribution to the cost of representation by an ICL.

Appeals

We may provide a grant of legal assistance for an appeal relating to a parenting dispute where Guideline 8 – Appeals is met.

Notes on this guideline

For commentary and examples on the eligibility criteria, grants assessment process, documentary requirements and fees and billing relevant to this guideline see the Notes on guideline 1.3.