Notes on Guideline 1.4 – appointment of an ICL in litigation relating to parenting disputes

Notes on Guideline 1.4 – appointment of an ICL in litigation relating to parenting disputes

Note: The lawyer is not required to assess eligibility under this guideline for the initial application (first grant of assistance). All independent children's lawyer (ICL) applications are submitted and processed by the Assignments unit at Victoria Legal Aid (VLA). The matters are allocated to lawyers on the ICL Panel only.

Following allocation, all extension requests must be submitted by the lawyer pursuant to the simplified grants process (SGP).

The following information provides guidance on how to interpret and apply guideline 1.4 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.

This page provides general guidance on litigation grants for ICLs. Additional information is available on:

(a) Eligibility criteria

Assistance may be available under this guideline where criteria A and B are met.

Criterion​ A and B

The decision as to whether it is reasonable to make a grant of assistance for an ICL in a matter is made by VLA's Assignments unit.

The decision takes into account, but is not limited to, the decision of the Full Court of the Family Court in In the Matter Of: Re K Appeal [1994] FamCA 21.

(b) Grants assessment process

Initial applications for assistance under this guideline are not within the SGP but are processed by VLA and allocated to lawyers on the ICL Panel.

When allocating the matter, we will put an initial grant of assistance in place for the stage 1A broadband grant (Fee table 4.2). The ICL is not required to submit a request for the stage 1A grant.

If the matter is listed for trial in the first instance, the Assignments unit will also put funding in place under stage 2 and stage 3 of Fee table 4.2.

The lawyer will then be able to submit extension applications via ATLAS in the usual way pursuant to the SGP process, ensuring that evidence supporting the extension is kept on the file.

A copy of the court order requesting the appointment of the ICL is emailed to the appointed ICL.

The ICL must file and serve on all parties a notice of address for service as soon as possible. VLA suggests that a copy of the VLA child representative information sheet be included with the notice to the parties.

Appearing and instructi​ng as an ICL

Where the ICL has briefed counsel to appear at the final hearing, VLA may provide a limited instructing fee for the ICL to instruct at key points of the final hearing where it is:

  • a Magellan matter or a complex matter, and
  • essential for the ICL to act as instructor in the proceedings in order to form an opinion about what is in the child’s best interests based on the evidence.

For information relating to the limited instructing fee for ICLs in complex matters, refer to the notes linked to the definition.

We expect that it will not ordinarily be necessary to instruct for the entire final hearing. Instructing may be required at key points in a final hearing, for example, during the evidence of controversial witnesses or the making of opening or closing submissions, but will not always be required.

Funding for instructing can only be requested one day at a time. The ICL must assess that instructing will be required for the following day of the trial.

(c) Documentary requirements

The lawyer’s file should contain the following:

  • a copy of all court documents
  • a copy of a police brief, if applicable
  • copies of all reports from third parties (including, but not limited to psychiatric/psychological assessments and family reports).

The file should also contain all other relevant notes, supporting evidence and documents, including evidence to support an interim defended hearing grant (if applicable).

Lawyers are also encouraged to complete a family law worksheet.

(d) Fees and billing

Fee table 4.2 sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

Stage 1A – Initial litigation in FCC or FCA (Fee table 4.2)

The stage 1A is a broadband grant available in both the FCC and the FCA.

The broadband grant allows for two subsequent hearings in the FCC and three subsequent hearings in the FCA. Subsequent hearing fees are payable where the matter is listed in the duty list. Fees for procedural appearances such as a mention or directions hearing at the interim stage are also available under a stage 1B. If an ICL requires an additional subsequent hearing fee, an extension must be sought for a stage 1B grant.

Note: If a barrister has been briefed to appear at a hearing, when submitting the claim for the appearance in ATLAS, the barrister must be entered as the payee to ensure they are paid directly. For more information, see the Step by step ATLAS guides.

The broadband grant allows for service fees, conduct money and filing fees to a set amount. If further funding is required under this work item, a special disbursement extension must be submitted.

Disbursements for other parties

VLA may provide funding to an ICL for a disbursement on behalf of a party where required. For example, a trial may not be able to proceed in the absence of a psychiatric report for one of the parties. Funding may be available to the ICL for the cost of the report where the party is in receipt of a grant of assistance or, where a party is self-represented, and they cannot reasonably afford the disbursement.

An extension must be submitted via ATLAS for consideration of this request. The ICL must provide evidence of the financial circumstances of the party. This may include bank statements, a financial statement or a copy of a health care card. The ICL must also advise if the party is self-represented or in receipt of a grant of assistance.

VLA may also provide funding for a disbursement for one of the parties where the party appears to be able to afford the disbursement, but refuses to pay, and the failure to do so may significantly impact the proceedings. In these circumstances, the ICL must outline the reasons why it is a necessity to provide the funding.