Notes on Guideline 1.11 – litigation in combined parenting and property disputes

Notes on Guideline 1.11 – litigation in combined parenting and property disputes

Note: The following information provides guidance on how to interpret and apply guideline 1.11 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 in combined parenting and property matters. Additional information is available on:

(a) Eligibility criteria

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

Criterion A

The requirements of Guideline 1.3 must be satisfied. Refer to the notes under Guideline 1.3.

Criterion B

Assistance may be provided under this guideline in a matter that relates to a purely negative asset pool, ie debt alone, as well as a combination of debt and the various assets listed.

Where a matter involves both children’s issues and property, the matter must continue to have substantial issues in dispute for both children’s issues and property issues throughout the life of the grant. Where the children’s issues resolve, further funding is not available to continue property proceedings.

The only exception to this is where children’s issues resolve on the first day of trial or very shortly prior to trial and insufficient time is available for the lawyer to withdraw from the property proceedings. We expect lawyers to keep file notes to explain when children’s issues have settled and what any remaining substantial issue is. Where the children’s issues resolve at the beginning of the first day of trial, it is expected that the property proceedings should be endeavoured to be resolved on that first day.

(b) Grants assessment process

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

  • under matter type, select ‘children’s matter’ as the primary matter type and ‘property’ as the subsequent matter type
  • under court hearing, select ‘yes’ and advise of the appropriate court
  • under professional costs, select ‘stage 2E’ grant and tick the property matter box.

Where Family Dispute Resolution Service (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.

If the property matter is raised after assistance for children’s matters has been approved, the lawyer may seek an extension for the property matter only.

Please refer to the notes under Guideline 1.3 for further information in relation to the stage 2C and stage 2E grants.

(c) Documentary requirements

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

  • how Guideline 1.3 is met
  • an estimate of the parties’ assets and liabilities (including superannuation), with documentary evidence to support the estimate
  • documentary evidence that the applicant for assistance has an equitable interest of $500,000 or less in the family home
  • that either party is seeking to retain the family home and that the applicant for assistance will receive no payment in relation to the family home
  • 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.

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

Lawyers are also encouraged to complete a family law worksheet.

(d) Fees and billing

Refer to notes under Guideline 1.3, Fees and billing. The following provides additional information:

Where assistance for property proceedings is approved at the litigation stage, the lawyer is entitled to the following additional fees:

  • two hours’ preparation
  • a conciliation conference
  • a disbursement for a superannuation split certificate, where applicable.

These fees can be recommended at both stage 2 and stage 3 of a matter.

If a grant was made for advice and negotiation in the matter and the grant was used, the lawyer will only be entitled to a reduced preparation fee under the first subsequent grant (extension 1), whether it be for FDRS or litigation.

The lawyer must claim the ‘Family Law Prep Where Advice and Negotiations Claimed’ fee on extension 1 rather than the full preparation fee.