Notes on Guideline 1.6 – advice and negotiation for child litigants in parenting disputes

Notes on Guideline 1.6 – advice and negotiation for child litigants in parenting disputes

Note: The lawyer is not required to assess eligibility under this guideline. Applications are submitted to ATLAS for assessment by Victoria Legal Aid (VLA).

The following information provides guidance on how to interpret and apply guideline 1.6 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.

(a) Eligibility ​criteria

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

Criterion A and B

The advice and negotiation grant is intended as a first step in attempting to resolve a dispute with minimal legal intervention. For that reason, a grant for advice and negotiation can only be the first grant recommended in a dispute, and can only be granted once in a dispute.

Criterion C

Refer to the notes linked to the following threshold tests:

Criterion D

Examples of where VLA may consider it appropriate for the child litigant to participate in the negotiations are where:

  • the child is the parent in a dispute; or
  • the child is a sibling in the dispute and wants contact with another sibling; or
  • a child wishes to remove or put in place a watch list order (eg where the child may be sent overseas for an arranged marriage).

The child must be sufficiently mature to give instructions to a lawyer. Part 5.1.1of VLA’s Practice Standards provide additional information in relation to representing children in family law matters, including assessing capacity to give instructions and taking instructions from very young, traumatised and/or intellectually disabled children.

(b) Other mandatory criteria

Discharge or vary orders

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

(c) Grants assessment process

A grant for advice and negotiation is available on the first grant only (extension zero).

An application for a grant of assistance under this guideline must be lodged via ATLAS using the ‘VLA Assessed – FDRS & stage 2’ template, making the following selections:

  • under ‘court hearings’, select ‘no court proceedings’;
  • under stage 1 in the professional costs screen, select ‘Advice & Negotiations’.

VLA Assessed templates require the lawyer to detail how the matter meets the appropriate guideline and the Commonwealth merits test.

Where FDRS or litigation funding has been recommended but no claims have been made, and the lawyer forms the view that funding should instead be in place only for advice and negotiation, this should be requested in a new application. The lawyer should submit correspondence on the first file advising that an advice and negotiation grant will be requested on a fresh application, and ensure that the previous file is closed by submitting a file outcome via ATLAS.

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

(d) Documentary requirements

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

  • that no previous applications have been submitted in relation to the current dispute;
  • how each of the thresholds tests are met;
  • how criterion D is met, including the lawyer’s assessment that the child is sufficiently mature to give instructions;
  • where aid is sought to discharge or vary an order, details of the significant change in circumstances.

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

Refer to the notes under Guideline 1.1, Fees and billing