Notes on Guideline 1.7 – FDRS for child litigants in parenting disputes

Notes on Guideline 1.7 – FDRS 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 1.7 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.

Where a grant of assistance is made for family dispute resolution, the service must be provided by our Family Dispute Resolution Service (FDRS).

For more information relating to VLA’s Family Dispute Resolution Service, see Important information about FDRS.

(a) Eligibility criteria

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

Criterion A and B

Examples of where VLA may consider it appropriate for the child litigant to participate in an FDRS conference:

  • where the child is the parent in a dispute
  • where the child is a sibling in the dispute and wants contact with another sibling, or
  • where 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 provides 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.

Criterion C

Refer to the notes linked to the following threshold tests:

(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

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’
  • in the professional costs screen, select ‘stage 1 FDRS parenting, child maintenance or spousal maintenance’.

Where there is currently litigation on foot in relation to the family law matter, and this is funded by VLA, the applicable professional costs for FDRS is stage 2H (litigation intervention).

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

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

Early intervention FDRS or litigation intervention FDRS?

The lawyer would be entitled to a stage 1B grant instead of a stage 2H grant where the litigation on foot is under a stage 2B grant (recovery, information, location orders).

Moving from litigation to FDRS

Where litigation funding has been recommended but before using these funds the lawyer assesses the matter to be suitable for FDRS, the lawyer can recommend a stage 1B grant rather than the stage 2H grant (litigation intervention FDRS) in the circumstances listed above. The lawyer may submit correspondence on the first file advising that funding for litigation is not required as the matter has been assessed as suitable for FDRS. Once the correspondence is submitted, the lawyer may submit a fresh application on a new file ID requesting funding under stage 1B. As long as the lawyer certifies that the matter meets the FDRS guideline and merits test, no further correspondence or action is required. Assignments will rely on the lawyer’s certification to approve assistance on the new file.

Where a litigation grant has been made and assistance is subsequently recommended for litigation intervention FDRS under stage 2H, the litigation grant is deferred pending the outcome of the FDRS process. If the matter is resolved at FDRS, lawyers may render an itemised bill for all work done pursuant to the previous litigation grant.

Where assistance is provided for litigation intervention FDRS, the litigation grant will be deferred if:

  • a session at FDRS can be held more than one month prior to the date set to file documents
    and/or
  • the requesting party can explain why a further FDRS session may resolve the matter
    and/or
  • the deferral of a grant to attend FDRS does not prejudice either party.

It is understood that during the FDRS process, necessary work that was required in the previous litigation grant may need to be undertaken. However, we take the view that lawyers should only undertake steps that are critical to court procedure. They should attempt to avoid major steps in the litigation grant previously given (eg preparing affidavits or briefing counsel for final hearing).

Additional FDRS conferences

Where a second VLA FDRS conference is required and may reasonably be expected to resolve outstanding issues, the client may proceed to a further conference without an extension of assistance.

Funding for a third FDRS conference will be assessed by VLA and cannot be subject to a lawyer’s recommendation.

Assistance for a third FDRS conference should be applied for via an extension request on the existing grant using the ‘simplified process – FDRS & stage 2’ template, making the following selections:

  • under ‘court hearings’, select ‘no court proceedings’
  • under stage 1 in the professional costs screen, select ‘Additional FDRS conference’

Supporting correspondence should then be submitted containing the following information:

  • details of the progress since the last FDRS conference
  • details of the issues still in dispute or orders sought by each party
  • a statement from the lawyer about whether the orders or outcome sought satisfies the Commonwealth merits test
  • a copy of the chairperson’s report from previous FDRS conferences
  • a copy of any relevant court orders.

(d) Documentary requirements

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

  • the lawyer’s assessment that the child is sufficiently mature to give instructions;
  • how both criteria A and B of the guideline are met;
  • how each of the thresholds tests are met;
  • 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

Refer to notes under Guideline 1.2, Fees and billing.