Notes on Guideline 1.3 – litigation for adults in parenting disputes

Notes on Guideline 1.3 – litigation for adults in parenting disputes

Note: The following information provides guidance on how to interpret and apply guideline 1.3 and should be read in conjunction with that guideline in the Handbook. Where there is any inconsistency between the following information and the guidelines, the guidelines will prevail.

The following information provides general guidance on litigation grants. Additional information is available on:

(a) Eligibility criteria

Assistance may be available under this guideline where the following criteria are met:

  • for applicants in proceedings: A, and B or C, and D.
  • for respondents in proceedings: A, and B or C.

Criterion A

Refer to the notes linked to the following threshold tests:

Criterion B

Refer to the notes linked to the priority FDRS client definition.

Criterion C

Child’s wellbeing and/or safety at risk

The child’s wellbeing and/or safety being at risk due to abuse, neglect or family violence is central to eligibility under criterion C. The risk must relate to the child and not to either of the parties in the proceedings.

The extent of the risk must be that it is likely to result in court orders that will significantly limit the relationship between the child and one of the parties, or change residential arrangements for the child. The threshold for a ‘significantly limited relationship’ is high. It would usually mean orders that prevent a child from spending time with the party, or only allow for supervised time or very limited time with the party.

For a recommendation to be made under this criterion, the other party must be seeking orders, whether interim or final, of this nature. It is not sufficient to assert that the court is likely to make such orders even though another party is not seeking them. If the other party seeks orders that allow for significant and unsupervised time, the person seeking assistance will not be eligible under this criterion.

An exception to the above is where independent reports or assessments are produced in the course of proceedings detail a greater risk to the child than that which is reflected in the parties’ applications. In these circumstances, we expect the application to be amended to reflect the risks identified in the reports.

Where a lawyer is unsure whether this criterion is met, discretion should be sought.

An assessment under this criterion involves the lawyer surmising what the likely outcome of the court proceedings will be. The assessment of what orders the court is likely to make is closely connected to the assessment of merits under the Commonwealth merits test and is intended to be based on the information available to the lawyer and the exercise of their professional judgment.

Child wellbeing/safety at risk – Example A

The child lives with the mother and spends four nights a fortnight with the father. Changeovers occur at school and do not require contact between the parents. The mother seeks court orders to reduce the father’s time to day contact only based on past family violence committed against her. There are no allegations that the child has been subjected to or exposed to family violence. The mother states that she only allowed overnight time as she was intimidated by the father.

Assistance should not be recommended in these circumstances as no family violence is being experienced by the child and there is no exposure, or risk of exposure of the child to family violence. It is therefore not considered likely that orders would be made significantly limiting the relationship between the father and the child. Further, the mother is not seeking a reduction in time which VLA would consider would result in a significantly limited relationship.

Child wellbeing/safety at risk – Example B

The child lives with the mother and spends alternate weekends with the father. The mother has been charged and convicted of physically assaulting the child and the father seeks orders that the child live with him. DHHS have been involved and have placed the child in the father’s care.

Assistance should be recommended as the child may be at risk from the mother, and court orders are likely to be made changing the residential arrangements for the child.

Higher level of risk r​equired

The level of risk to the child under this criterion is higher than the level of risk required under a grant for advice and negotiation or for FDRS (criterion E of Guideline 1.1 and criterion C of Guideline 1.2).

Under guidelines 1.1 and 1.2, the mere fact that allegations of risk to child have been made is sufficient to satisfy the criterion. Under guideline 1.3, the allegations of risk to the child must be sufficiently serious to justify an assessment that the court is likely to make the orders sought by the other party, or similar orders, which significantly limit the relationship between the child and one of the parties, or change residential arrangements for the child.

Criteri​on D

This criterion only applies to applicants in legal proceedings.

Refer to the notes linked to the definitions of required section 60I certificate and urgent matter.

(b) Oth​er mandatory requirements

Where a party is not a parent of the child

Refer to the notes linked to the definitions of:

Discharge or vary orders

Refer to the notes linked to the definition of significant change in circumstances.

Contravention and contempt of court

Refer to the notes linked to the definition of substantial contravention of the orders.

(c) Grants assessment process

An application for a grant of assistance under this guideline must be lodged via ATLAS using the ‘simplified process – FDRS & stage 2’ template either by way of a ‘new application’ or an ‘extension’. The lawyer should make the following selections:

  • under ‘court hearings’, select ‘yes’ and advise of the appropriate court
  • under stage 1 in the professional costs screen, select the required funding under the appropriate court.

The broadband stage 2E grant consists primarily of the initial preparation and appearance lump sum and three subsequent hearings. On the rare occasion where funding is required for a further subsequent hearing, an extension request needs to be submitted requesting a stage 2F grant, outlining why further funding is required.

If the lawyer needs to provide additional information, this should be done by using the ‘submit correspondence’ function.

Moving from the FCC to the FCA

If a matter is transferred from the Federal Circuit Court (FCC) to the Family Court (FCA), the lawyer is required to update the ‘court type’ when submitting the next extension in relation to the matter via ATLAS.

If the matter is still at the interim court stage, then no further action is required given the same fee tables apply for both courts. If the matter is listed at trial stage, then the lawyer should submit a new extension via ATLAS and request the appropriate Family Court trial grant.

(d) Documentary requirements

The lawyer’s file must contain a file note that makes clear:

  • how each of the threshold tests is met
  • how criterion B or C is met
  • where relevant, how criterion D is met (applies to applicants in proceedings only). Evidence must be retained on the file showing:
    • that there has been an attempt to resolve the dispute by attending FDR and that a required section 60I certificate has been issued in relation to the dispute, or
    • where a required section 60I certificate has not been issued in relation to the dispute, that it is an urgent matter.
  • where the person is not a parent of the child, how they are significant to the care, welfare and development of the child
  • where discharge or vary is sought, how the significant change in circumstances test is met.

The file should also contain all other relevant notes, supporting evidence and documents.

Lawyers are also encouraged to complete a family law worksheet.

(e) Fees and billing

Stage 2 of fee table 4.1, sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

Stage 2C – Initiating litigation, Magistrates’ Court

If a barrister is briefed to appear at a hearing, they must be paid directly. The fee payable to the barrister is deducted from the lump sum grant. For more information, see the Step by step ATLAS guides.

The grant allows for service fees, conduct money and filing fees up to a set amount. If further funding is required, a special disbursement extension must be submitted. Filing fees cannot be claimed where the client is entitled to an exemption of those fees. The grant allows a set amount for freedom of information (FOI) requests, title search fees and title lodgement fees.

No fees are payable for administrative adjournments.

Additional fees under the stage 2D grant become available if the matter is transferred to the FCC or FCA. No extension request is required.

Snapshot of fees available when initiating litigation, Magistrates’ Court

Stage 2C (lump sum):

  • lump sum includes all appearances at the Magistrates' court
  • if advice and negotiations grant (1A) claimed on previous extension, fee reduced by amount of 1A grant
  • if counsel briefed, appearance fee paid directly to counsel
  • no distance fee available for appearances in the Magistrates' court.

Stage 2D (transfer):

  • payable for the first appearance where the matter is transferred to the FCC or FCA
  • if counsel briefed, appearance paid directly to counsel
  • distance fee payable where the lawyer’s office is more than 50km from the court (payable for travel or to brief counsel).

Stage 2F (subsequent hearing):

  • three subsequent hearings available under the broadband grant (payable once transferred to the FCC or FCA)
  • available where the matter listed for an interim hearing or in the duty list
  • if counsel briefed, appearance fee paid directly to counsel
  • distance fee payable where the lawyer’s office more than 50km from the court (payable for travel or to brief counsel).

Stage 2E – Initiating litigation, federal family courts

If a barrister is briefed to appear at a hearing, they must be paid directly. For more information, see the Step by step ATLAS guides.

The broadband grant allows for three subsequent hearings payable where the matter is listed in the duty list at the interim stage.

The grant allows for service fees, conduct money and filing fees up to a set amount. If further funding is required, a special disbursement extension must be submitted. Filing fees cannot be claimed where the client is entitled to an exemption of those fees. The grant allows a set amount for FOI requests, title search fees and title lodgement fees.

No fees are payable for administrative adjournments.

Snapshot of fees available when initiating litigation, federal family courts

Stage 2E (lump sum):

  • if advice and negotiations grant (1A) claimed on previous extension, fee reduced by amount of 1A grant
  • if counsel briefed, appearance fee must be paid directly to counsel
  • distance fee payable where the court is more than 50kms from the lawyer's office (payable for travel or to brief counsel).

Stage 2F (subsequent hearing):

  • three subsequent hearings are available under the broadband grant (no extension required)
  • available where the matter is listed for an interim hearing or in the duty list
  • if counsel briefed, appearance fee must be paid directly to counsel
  • distance fee payable where the lawyer’s office is more than 50km from the court (payable for travel or to brief counsel)
  • if further subsequent hearings are needed, the lawyer will need to seek an extension.

Stage 2G (interim contested hearing):

  • not available under the broadband grant. An extension of assistance must be sought
  • payable where a matter is listed on the court's web portal as an interim defended hearing or in a matter listed otherwise but which proceeds as an interim contested hearing on the day
  • if counsel briefed, appearance fee paid directly to counsel
  • circuit fees payable
  • distance fee payable where the lawyer’s office is more than 50km from the court (payable for travel or to brief counsel).

The following should be retained on the file to support claims made under the grant:

  • record of consultations with client (including appointments and telephone attendances);
  • record of advice provided to client (oral and/or written);
  • record of negotiations conducted with the other party or their legal lawyer (including telephone attendances and letters);
  • conference notes and details;
  • copies of the Section 60I certificate and the chairperson’s report.