Additional information relating to litigation grants

Additional information relating to litigation grants

Interim contested hearings – lawyers (excluding ICLs)

An interim contested hearing is any matter where the court allocates a specific fixture to hear the matter on a contested basis, but which is not the final hearing (ie any interim matter which could not be dealt with in the registrars duty list at a hearing, because the matter was particularly complex).

Stage 2G of fee table 4.1 in the Handbook sets out the entitlements and conditions relevant to grants to lawyers (excluding independent children's lawyers (ICLs)) for interim contested hearings in the federal family courts.

See Interim contested hearings – ICLs for notes relating to grants to ICLs.

a) Eligibility criteria

Refer to the notes under a) Eligibility criteria and b) Other mandatory requirements under the relevant litigation guideline:

b) Grants assessment process

Funding for interim contested hearings is not provided within broadband litigation grants and an extension request is required.

The application or extension request must be lodged via ATLAS using the ‘simplified process – FDRS & stage 2’ template, making the following selections:

  • under ‘court hearings’, select ‘yes’ and advise of the appropriate court
  • in the professional costs screen, select ‘stage 2G’.

Lawyers may recommend assistance for the first interim contested hearing in a matter. Any subsequent requests for interim contested hearing grants will be assessed by VLA.

Circuit fees are payable for interim contested hearings under Stage 2G but are not automatically provided. Lawyers must select the ‘CF – Circuit fees’ under ‘professional costs’ in their extension request.

c) Documentary requirements

In addition to documentary requirements set out in the notes relevant to each litigation guideline, the lawyer’s file should include:

  • a copy of the Commonwealth courts’ web portal listing indicating that the matter is listed for an interim defended hearing on the relevant date, or
  • a copy of a court order listing the matter for an interim contested hearing on the relevant date. It is not sufficient that the court order sets it down for an ‘interim hearing’. The court order should specify that it is set down for an ‘interim contested’ hearing’ or ‘interim defended hearing’, or
  • where the matter was not listed for an interim contested hearing but runs as a contest by way of evidence, counsel’s backsheet or the lawyer’s court attendance note outlining what occurred on the day. The document must show that evidence in chief was heard and cross examination undertaken
  • where the matter was not listed as an interim contested hearing but runs as a contest by way of submissions, counsel’s backsheet or the lawyer’s court attendance note outlining what occurred on the day. The document must show that significant submissions were heard, involving at least one hour of court time (ie not including time where matters are stood down for negotiations).

c) Fees and billing

Stage 2G of fee schedule 4.1 sets out the fees available and the conditions attaching to a grant for an interim contested hearing. The following provides additional information:

Refer to Documentary requirements for guidance on the information required to be retained on the file.

Contravention, enforcement or contem​pt of court proceedings – lawyers (excluding ICLs)

Stage 2I of fee table 4.1 in the Handbook sets out the entitlements and conditions relevant to litigation grants to lawyers (excluding ICLs) for contravention, enforcement or contempt of court proceedings in the federal family courts.

a) Eligibility criteria

Refer to the notes under a) Eligibility criteria and b) Other mandatory requirements under the relevant litigation guideline:

Note that in addition to meeting the criteria set out in the relevant litigation guideline, the lawyer must satisfy themselves that there has been a substantial contravention, and that the matter satisfies the Commonwealth merits test, specifically in relation to the contravention, enforcement or contempt of court.

The notes on the definition of substantial contravention provide guidance on determining whether applications for assistance for contravention, enforcement or contempt of court meet the eligibility criteria.

b) Grants assessment process

Assistance may be recommended for a Stage 2I fee (fee table 4.1) as a new application (after final orders) or as an extension (application in a case).

An application for a grant of assistance for contravention, enforcement or contempt of court 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:

  • for matter group, the lawyer should select ‘family matters – general’ and select ‘enforcement’ or ‘contempt’ under matter type (there is no separate matter type for contravention’
  • under ‘court hearings’, select ‘yes’ and advise of the appropriate court
  • in the professional costs screen, select ‘stage 2I’ under the appropriate court.

c) Documentary requirements

In addition to documentary requirements set out in the notes relevant to each litigation guideline, the lawyer’s file must contain a file note that makes clear:

  • if the person seeking assistance is the respondent in the proceedings, the merit in defending the application
  • details of the alleged contravention and why the lawyer has assessed it a substantial contravention
  • a copy of all court documents in relation to the contravention, enforcement or contempt proceedings.

d) Fees and billing

See stage 2I of fee schedule 4.1, for information on the fees available and the conditions attaching to grants for contravention, enforcement or contempt proceedings.

Preparation for trials and trial costs – lawyers (excluding ICLs)​

Stage 3 and stage 4 of fee table 4.1 in the Handbook sets out the entitlements and conditions relevant to grants to lawyers (excluding ICLs) for preparation for trials and appearance in trials (trial costs) in the federal family courts.

a) Eligibility criteria

When assistance is sought for preparation for trials, or trial costs, lawyers must satisfy themselves (or must satisfy us where discretion is sought) that the person’s matter continues to meet the relevant litigation guideline including, where relevant:

If the matter no longer meets the eligibility criteria, the lawyer must advise VLA and provide reasons for their assessment. This may be done by submitting correspondence via ATLAS.

Prior to making a recommendation for assistance for trial preparation or trial costs, lawyers must submit all outstanding claims for the matter to allow VLA to accurately assess the funds available under the cost ceiling.

Lawyers should not seek funding for preparation for trial and trial costs more than six months prior to the date of the trial. Lawyers need to ensure that they have enough information to make an assessment under the relevant eligibility criteria, including the Commonwealth merits test and substantial issue in dispute test.

b) Grants assessment process

Funding for preparation for trial and trial costs are not provided within the stage 2 (fee table 4.1) broadband grants and an extension request is required. The application or extension request must be lodged via ATLAS on the ‘simplified process – trial’ template. Under ‘court hearings’, select ‘yes’ and advise of the appropriate court.

Different preparation fees are available for trials estimated to run for one day and for trials estimated to run for more than one day. Lawyers must ensure that they enter the amount of days the trial is listed for to ensure sufficient funds are provided.

Fees for preparation for trial, for any additional preparation required, and for trial appearance costs in the Federal Circuit Court and the Family Court are available under different fees, depending on the court. For more information on the fee pathways and the grants assessment processes, see Fees and billing.

Proof of means

Lawyers are reminded that proof of means must be updated every 12 months. Any changes to a client’s financial circumstances must be updated on the ‘update client details’ screen via ATLAS.

Exceeding the cost ceiling

Assistance for family law proceedings, other than matters in the Magellan list of the Family Court, are subject to the Commonwealth’s cost ceiling of $15,510 (GST inclusive).

Where trial funding will result in the matter exceeding the family law fee ceiling, lawyers are required to provide a completed Request for overcap funding worksheet together with supporting documents outlined in Documentary requirements.

Applications for funding beyond the fee ceiling cannot be the subject of a lawyer’s recommendation. Assistance in excess of the cost ceiling will only be provided if refusal would cause undue hardship to the applicant.

Lawyers are advised to lodge any overcap extension via ATLAS well in advance, but not more than six months prior to trial. These extensions take longer to process. For more information, refer to Family law cost management in the Handbook.

An overcap worksheet and any updated documentation will be required for each additional extension once the matter has exceeded the fee ceiling.

c) Documentary requirements

In addition to documentary requirements set out in the notes relevant to each litigation guideline, where there has been a recommendation for trial, a lawyer’s file must contain the following:

  • the client’s current instructions
  • a brief statement as to the evidence to be relied upon. Where a statement, or piece of evidence, is determinative of a specific issue, that piece of evidence must be readily identifiable
  • a file note outlining how the matter satisfies the Commonwealth merits test including the cost benefit test, together with the issues that remain in dispute and any proposed offers that have been made between the parties
  • a copy of all court documents, court orders and affidavits
  • copies of all reports from third parties (including, but not limited to psychiatric/psychological assessments and family reports)
  • the opinion of the independent children’s lawyer. Lawyers should canvass the independent children’s lawyer's view and retain the advice (or a file note of it).
  • a case strategy plan or other evidence that the lawyer has undertaken an evidence analysis, merits assessment and developed a case strategy prior to final hearing.

Recommending assistance for trial contrary to third party recommendations

Any lawyer who elects to recommend further funding contrary to a third-party opinion (whether from an independent children’s lawyer or contained in a report written in compliance with a court order) must have serious regard to why further funding is required and must provide compelling reasons for doing so.

Recommending assistance for trial contrary to third party recommendations – Example A

The lawyer seeks legal assistance for a three-day trial for their client who wants the child to live with them. The family report is available and concludes that the child should live with the other party. The independent children’s lawyer has expressed an opinion which is not entirely supportive of the client’s case.

If the lawyer is to recommend further assistance in this matter, a detailed file note would be required, setting out the reasons why assistance is being recommended in the face of adverse third-party opinions. Such matters may include (but are not limited to) the following:

  • assertions that the family report contains weaknesses in its compilation, which lessen its evidentiary strength. These weaknesses may be factual, or relate to matters of opinion, and need to be carefully detailed.
  • that there is a substantial dispute, not merely disagreement on a small point. For instance, the lawyer may have formed the view the impartiality of the report was unduly influenced by extraneous matters, or influenced by matters which (if the correct weight had been apportioned) would likely persuade a court that a contrary view should be taken.
  • that there is new evidence, which has arisen since the release of the family report/ICL opinion, and this new evidence is both admissible, cogent, and of sufficient weight.

Where funding exceeds the family law cost ceiling

When the recommended funding will take the matter beyond the fee ceiling, the following must be provided to VLA via ATLAS:

  • a completed overcap worksheet
  • copies of the most recent affidavits filed by each party
  • copies of the relevant court orders
  • copies of all third-party reports such as the family report, any psychological reports etc.
  • the trial plan (in Family Court matters).

This documentation will be required for all subsequent extensions.

Lawyers are advised to lodge any overcap extension via ATLAS well in advance, but not more than six months prior to trial. These extensions take longer to process.

d) Fees and billing

The different fee pathways which apply for trial preparation and for trial appearance costs in the Federal Circuit Court and the Family Court are set out in stage 3 of fee table 4.1. See also the Snapshot of available professional costs in recovery order proceedings (fee table 4.1).

Federal Circuit Court

In the Federal Circuit Court, fees for preparation for trial are available under stage 3D – preparation for trial, Federal Circuit Court in fee table 4.1. This broadband grant also provides access to fees for procedural hearings set out in stage 3B.

Funding for stage 3D can only be recommended once. Lawyers wishing to seek additional preparation fees in exceptional circumstances must submit an extension request for stage 3E – Additional preparation fees in fee table 4.1. For more information on stage 3E grants, see Additional trial preparation in exceptional circumstances – stage 3E.

Trial appearance costs in the FCC are available under the Stage 4 – trial costs in the federal family courts.

Fees for additional appearances must be requested by lodging an extension request via ATLAS using the ‘simplified process – trial’ template, selecting ‘ATDFM – Additional trial days in the Federal Circuit Court’ in the ‘professional costs’ screen.

The preparation fees are stated in the tax invoice as:

  • ‘3D 1 Prep 1 day’ available where the trial is listed for one day only)
  • ‘3D 2 Prep more than 1 day’ (available in addition to '3D 1 Prep 1 day' where the matter is listed for more than one day or is adjourned for further days)
  • '3D 3 Prep, evid, merit case' where the lawyer has undertaken evidence analysis, merits assessment and case strategy

Lawyers should not seek additional preparation for adjourned trials unless both '3D 1 Prep 1 day' and '3D.2 Prep more than 1 day' have been claimed.

No appearance is payable if the matter is in the list but not reached.

Family Court

In the Family Court, preparation and costs for the first day of trial are available under stage 3A (fee table 4.1). This broadband grant also provides access to fees for procedural hearings. Funding for stage 3A can only be recommended once.

The preparation fees under Stage 3A are stated in the tax invoice as:

  • ‘3A Prep 1 day’ (available where the matter is listed for one day only)
  • ‘3A Prep more than I day’ (available in addition to '3A Prep 1 day', where the matter is listed for more than one day)
  • '3A Prep, evid, merit case' where the lawyer has undertaken evidence analysis, merits assessment and case strategy

The appearance component of stage 3A is not payable if the matter is in the list but not reached.

Where a trial is listed for more than one day, a grant for stage 3C – further preparation and continuation of trial, Family Court (fee table 4.1) should be requested. Stage 3C includes both trial appearance fees and further trial preparation fees.

The preparation fees under Stage 3C are stated in the tax invoice as:

  • ‘3C Prep 1 day’ (available where the matter is listed for one day)
  • ‘3C Prep more than day’ (available where the matter is listed for two to three days)
  • ‘3C Prep more than 4 days’ (available where the matter is listed for four days or more).

Lawyers should claim the ‘3C Prep 1 day’ hearing fee and, where appropriate, the uplift fees.

Examples:

  • Matter listed for three days – claim ‘3C Prep 1 day’ and ‘3C Prep more than day’.
  • Matter listed for five days – claim ‘3C Prep 1 day’, ‘3C Prep more than day’ and ‘3C Prep more than 4 days’.

Funding for stage 3C is only available once. Lawyers wishing to seek additional preparation fees in exceptional circumstances must submit an extension request for Stage 3E – additional preparation fees. See Additional trial preparation in exceptional circumstances – stage 3E for more information.

Lawyers should not seek funding for additional preparation unless all appropriate fees under Stage 3A and Stage 3C have been claimed.

Fees for additional trial preparation and further trial appearances must be requested via an extension request lodged using the ‘simplified process – trial’ template, selecting ‘FM1 – Preparation & continuation of trial in the Family Court (stage 3C)’ in the ‘professional costs’ screen.

The appearance component of stage 3C is not payable if the matter is in the list but not reached.

Trial costs and further appearances beyond those available under the stage 3C are available under Stage 4 – trial costs in the federal family courts.

Additional trial preparation in exceptional circumstances – stage 3E

Fees for additional trial preparation in the Federal Circuit Court and the Family Court are available under stage 3E (fee table 4.1) at an hourly rate. A grant of assistance under stage 3E cannot be the subject of lawyer recommendation but is VLA assessed.

The grant is only available in exceptional circumstances, such as where a trial is adjourned for a significant period and a number of additional reports have been filed which need to be assessed. We will only consider requests for additional preparation fees where all previous grants for preparation have been exhausted.

Stage 3E is requested via ATLAS on extension using the ‘simplified process – trial’ template. The lawyer is required to select ‘AP – Do you require any additional preparation under stage 3E?’ in the ‘professional costs’ screen.

An extension request for additional trial preparation must include the following:

  • a statement on how the work involved is extraordinary: unless the work is outside the work reasonably expected for preparation for trial, or the matter has only been adjourned for a short time with minimal additional evidence filed during the adjournment, there is no scope for paying additional fees. The provision for additional preparation is not designed to increase the fees because they may be considered inadequate (eg the affidavit took longer than usual to prepare or a conference with a witness took longer than expected)
    and
  • the number of hours required to complete the extraordinary work.

The Trial funding fee pathways flowchart illustrates the VLA fee schedule in relation to family law trial funding.

Fees for procedural hearings in the federal family courts

The following procedural appearance fees are available in the Federal Circuit Court and the Family Court (in Family Court matters, these fees are available as part of the broadband stage 3A grant):

  • Inspecting subpoenaed documents
    The 3B.1 grant is payable where an attendance at court is required to inspect subpoenaed documents. The fee does not require an appearance before the court.
    No fee is payable to issue subpoenas as this is considered part of the stage 2 preparation fee. Service fees, conduct money and compliance fees are available under the broadband grant.
  • Appearance at defended subpoena list
    The 3B.2 grant is payable where a court appearance is required in relation to the objection of the release of subpoenaed material.
  • Telephone mention
    The 3B.3 grant is payable where the attendance is undertaken by phone and no court attendance required.
  • Mention/directions/call Over
    The 3B.4 grant is payable in the following circumstances:
    • Mention – payable for a court event that is not expected to advance the matter but rather to monitor where the matter is at. Such an attendance is often listed prior to trial to ensure that the parties are ready to proceed to the trial.
    • Directions hearing – payable for a court attendance that is required to receive directions as to how the matter is to proceed. The fee is for those directions hearings that are not intended to advance the substantive matter or to deal with specific issues.
    • Call over – payable where the matter is listed as such. There must be a discrete hearing on a separate day from the trial. Call overs usually occur in circuit matters.

Circuit fees

Circuit fees are available at the trial stage and must be requested in addition to preparation and trial costs.

Distance Fees

Payable for procedural attendances (except telephone mentions) where the court is more than 50 kilometres from the ICL’s office. Payable to the lawyer to travel or brief counsel.

Making an application for costs

We require lawyers to apply for costs wherever appropriate. See Family law costs management in the Handbook for common scenarios where costs can be sought, and matters to consider when seeking costs.

During the course of litigation, including, where appropriate, in interim proceedings, the lawyer or counsel should make a verbal application that costs are reserved, or include the request in any minutes tendered. The lawyer should make a contemporaneous note outlining the basis of the claim and the amount claimed for that day.

After judgement in a trial, the lawyer should consider whether it’s possible to seek a costs order against the other party, in whole or in part.

The court may make a standard order for costs as agreed, and failing agreement by the parties, costs will need to be taxed.

Once you get an order for costs, and before closing the file:

  • write a letter of demand to the other party. Specify a fixed time for compliance with the order to pay (note: VLA does not fund the writing of a letter of demand)
  • diarise the final date for payment. If the other party fails to comply, then notify the Client Contributions Officer within the Assignments, Family Law team on (03) 9606 5277.
  • upload your documents to ATLAS. Provide a copy of the order made and all the relevant information regarding the orders eg the name and address of the party against whom the costs were awarded so payment arrangements can be made with the other side.