Guideline 2 – litigation

Guideline 2 – litigation

Applicants for legal assistance who are found by a court within the last 12 months to have contravened a Federal Circuit Court or Family Court of Australia order without reasonable excuse will not be eligible for a grant of legal assistance under this guideline or will have their grant of legal assistance removed.

2.1.1 –  Applicants in a legal proceeding

VLA may provide assistance for an applicant to initiate litigation for parenting orders where:

  • there is a dispute about a ‘substantial issue’; and
  • the matter is a ‘priority matter’; and
  • a ‘requisite Section 60I Certificate’ has been issued
OR
  • a ‘requisite Section 60I certificate’ has not been issued but the matter is either:
    • an ‘urgent matter’; or
    • there are current reported allegations/investigations/court proceedings relating to child abuse (in such instances the Risk Notice filed by the practitioner must set out the allegations which support this); or
    • a state child protection order (including an interim order) is in place and the Department of Health and Human Services (DHHS) has recommended that legal proceedings be issued in the family law jurisdiction for orders to be made on lapsing of the child protection order.

Where Guideline 2.1.1 is satisfied, practitioners should recommend Stage 2(e) funding.

If there are existing final parenting orders, Guideline 4 must also be satisfied.

Note Guideline 2.1.4 in relation to matters involving parenting and property.

2.1.2 –  Respondents to a legal proceeding

VLA may provide assistance to a respondent in litigation for parenting orders where:

  • there is a dispute about a ‘substantial issue’; and
  • the matter is a ‘priority matter’.

Where Guideline 2.1.2 is satisfied, practitioners should recommend Stage 2(e) funding.

If there are existing final parenting orders, Guideline 4 must also be satisfied.

Note Guideline 2.1.4 in relation to matters involving parenting and property.

2.1.3 – recovery of a child

VLA may provide assistance to initiate/respond to recovery proceedings where:

  • 'live with' orders are in place and the parent with whom the child usually lives in accordance with the orders seeks funding to apply for orders to have the child returned; or
  • 'live with' orders are not in place but a parent can establish a clear status quo of the child living with them and that parent seeks funding for orders to have the child returned; or
  • 'time with' orders are in place and a 'contact parent' seeks funding for orders to have the child brought back into the jurisdiction in which the contact parent lives (i.e. the other party has absconded with the child).

In all other instances, a contravention/enforcement application is deemed to be the appropriate course of action. Funding for such applications will only be provided where the matter satisfies Guideline 15 – contravention/enforcement.

Where Guideline 2.1.3 is satisfied, practitioners should recommend Stage 2(b) funding.

2.1.4 – Property

VLA may provide a grant of assistance for litigation in relation to property matters where assistance is granted for parenting orders under Guideline 2 above and either of the following applies:

  • one party is seeking to retain the family home (where their equitable interest is $500,000 or less) and the applicant for assistance will receive no payment; or
  • the matter involves a superannuation split and/or a pool of equity less than $50,000 (excluding superannuation).

Definitions

Substantial issue is is an issue that:

  • is likely to have a significant impact on the child’s safety or welfare; or
  • where the dispute is about with whom a child is to live; or
  • where the dispute is about the child’s right to spend time with their parents or significant others.

Examples of disputes about a substantial issue are:

  • where and with whom the child is to live;
  • whether 'time spent' should not be allowed;
  • whether 'time spent' should be supervised;
  • whether 'time spent' should be allowed overnight rather than only during daytime;
  • whether a parent should be allowed to relocate to another state or country or a significant distance within the same state;
  • whether a parent who spends time with the child should allow another person to be present during that time, where there are current allegations of violence or child abuse against that other person.

Examples of disputes that are not considered substantial are:

  • who should pay for travel costs associated with 'time spent';
  • which school the child should attend;
  • 'time spent' for birthdays, Christmas or other significant celebrations;
  • proportionately small changes to the number of hours of time spent (unless the child is of pre-school age), for example:
    • where the child is under the age of two years, a change of a number of hours in time spent may be considered substantial
    • where the child is aged two-six years, a half-day change in time spent may be considered substantial
  • where there is no issue in dispute and the parties are seeking to formalise existing parenting arrangements;
  • the only issue between the parties is that they have difficulty communicating;
  • the only issue between the parties is the place where changeover occurs.

Requisite Section 60I Certificate: 

  • A Certificate issued by VLA’s Family Dispute Resolution Service, unless:
    • the Certificate was issued due to the applicant for assistance not making a genuine effort to resolve the dispute (sub paragraph (d));
    • the Certificate was issued due to the applicant for assistance refusing or failing to participate (sub paragraph (a)).
  • A Certificate issued by another FDR practitioner where:
    • The parties made a genuine effort to resolve the issue (sub paragraph (c)); or
    • FDR not appropriate to continue after it has commenced (sub paragraph (e)); or
    • a party did not make a genuine effort to resolve the issues, provided that the applicant for assistance is not the party who did not make a genuine effort to resolve the dispute (sub paragraph (d)).

Urgent matter is one where:

  • the matter relates to recovery of a child (Stage 2(b) should be recommended);
  • the applicant’s safety or the child’s safety or welfare is at immediate risk and a court order must be obtained to ensure the safety of the child or applicant;
  • there is an immediate risk of removal of a child from Australia or to a remote geographic region within Australia; or
  • other exceptional circumstances exist that require urgent court orders.

Priority matter is one where:

  • a party has a particular vulnerability, such as a diagnosed mental health condition, assessed cognitive impairment (intellectual disability or acquired brain injury) or language barrier, literacy issues, drug or alcohol issues, and the particular vulnerability:
    • makes that person unable to effectively conduct their own litigation and/or
    • impacts upon the ability of a child subject to the proceedings to maintain a meaningful relationship with one or more parties to the proceedings.

or

  • a child's wellbeing or safety is at risk of harm from being subjected to, or exposed to, abuse, neglect or family violence to the extent that Orders likely to be made in the proceedings would significantly limit the relationship between the child and one or more parties to the proceedings and/or to make a change in residential arrangements for the child.