Notes on Guideline 1.9 – advice and negotiation in combined parenting and property disputes

Notes on Guideline 1.9 – advice and negotiation in combined parenting and property disputes

Note: The following information provides guidance on how to interpret and apply guideline 1.9 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 are met.

Criterion A

The requirements of Guideline 1.1 must be satisfied. Refer to the notes linked to Guideline 1.1.

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.

(b) Grants assessment process

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

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 subsequent matter type.
  • under court hearing, select ‘no’
  • under professional costs, select ‘Advice & Negotiations’

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.

(c) 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 Guideline 1.1 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.

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 the notes under Guideline 1.1, Fees and billing. The following provides additional information: