Notes on Guideline 2.2 – assistance for a location or information order

Notes on Guideline 2.2 – assistance for a location or information order

Note: The following information provides guidance on how to interpret and apply guideline 2.2 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.

Assistance may be available under this guideline to start legal proceedings with a location or information order, including where substantive parenting orders are also sought. Where a recovery order is also sought in the application, the application for assistance should be made under Guideline 2.1.

There is no requirement under this guideline for the matter to be deemed an urgent matter. However, where substantive parenting issues are also sought, the presence of urgency in relation to the parenting issues will determine the appropriate fee pathway. These pathways are set out in Guideline 2.2 and are illustrated in the Location or information order flowchart.

(a) Eligibility criteria

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

Criterion A

The person seeking assistance is only required to have taken feasible and lawful steps to obtain information on the current whereabouts of the other party or the child. This would include making all reasonable enquiries of any person or authority who may have information relating to the whereabouts of the child or the person who has the child in their care.

The person seeking assistance is not required to have taken extreme measures to obtain such information (eg unlawfully monitoring the movements of the other party or hiring a private investigator).

Criterion B

Based on the client’s instructions in relation to criterion A, the lawyer needs to assess whether all reasonable measures to obtain the information have been exhausted. The lawyer must be satisfied that a court order is the only way to obtain information on the whereabouts of the child or the other party.

Criterion C

Refer to the notes linked to the following threshold tests:

and to the following supplementary information.

Substantial issue in dispute test

Where the person is seeking assistance for an information or location order only, they are not required to meet the substantial issue in dispute criteria. This is because someone who has no idea of the whereabouts of the other party is unlikely to be able to establish the nature of the dispute between them, or that there is in fact a dispute. The fact that the person is unaware of the location of the child or the other party is deemed to be the substantial issue.

Where the person is seeking substantive parenting orders in addition to the location or information order, the substantial issue in dispute test must be met.

Commonwealth merits test

It is not essential for parenting orders to be in place, or for the person to also be seeking substantive parenting orders, for an application to be made under this guideline. Note however that some judicial officers will not grant information or location orders in isolation without also making parenting orders.

When parenting orders are also sought, lawyers recommending assistance under this guideline should carefully consider whether there really is urgency present, and understand both the fee pathways available and the conditions attached to grants.

Lawyers should be particularly mindful of the following when applying the Commonwealth merit test in location or information order matters:

  • the reasons for loss of contact with the child
  • the long-term merit of any substantive parenting application, including, where applicable the length of time since the person last had contact with the child. This is particularly relevant where the applicant relies on criterion E of Guideline 2.2
  • the delay in taking action to locate the child;

Where the delay in attempting to locate the child is due to circumstances outside the person’s control, for example where they have been in custody and attempted to obtain information on the child’s whereabouts within a reasonable time after release from custody, they may still satisfy the Commonwealth merits test.

Length of time since contact with the child – Example A

The person seeking assistance for a location order has not had contact with the child, since separation four years previously. In the last six months, they have attempted to locate the child and the other party. They do not meet the priority litigation client criteria but allege, under criterion E of Guideline 2.2, that the child’s wellbeing is at risk of harm due to neglect on the part of the party with whom the child is currently living. This allegation is based on event that occurred prior to separation.

It is unlikely that they satisfy the Commonwealth merits test.

Criterion D

Refer to the notes linked to the definition of priority FDRS client.

Criterion E

Refer to the notes on criterion C of Guideline 1.3.

Section 60I certificate

A section 60I certificate is generally not required under this guideline. In some cases, a grant under this guideline can be used to obtain the contact details of the other party to enable the assisted person to commence the FDRS process, either to negotiate parenting arrangements, or to obtain a section 60I certificate as a necessary precursor to litigation.

A section 60I certificate is only required where the person is also seeking substantive parenting orders and the issues don’t meet any of points two to seven of the definition of urgent matter.

(b) Other mandatory criteria

Where a party is not a parent of the child

Refer to the notes linked to the definitions of:

Discharge or vary orders

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

(c) Grants assessment process

The following grants are available in matters involving a location or information order:

  • Stage 2B – Application for recovery, information or location order in any court (fees 2B.1 and 2B.5 are available)
  • Stage 2C – Initiating litigation in Magistrates’ Court
  • Stage 2E – Initiating litigation in federal family courts

Guideline 2.2 outlines the circumstances which determine the appropriate grant. The following provides additional guidance.

Stage 2B grant

Where a person qualifies for assistance under this guideline and there are no substantive parenting orders that can be deemed to be an urgent matter, the stage 2B grant is available. The stage 2B grant is a lump sum fee for information or location orders where a recovery order is not also sought. No subsequent appearance fees are available.

An application for a 2B grant can be lodged via ATLAS using the ‘simplified process – Information/Location/Recovery/Enforcement orders’ template’ or the ‘Simplified process – FDRS & stage 2’ template, making the following selections:

  • in the ‘Family matter – general’ screen select the matter type ‘recovery or location/information’.
  • under ‘court hearings’, select ‘yes’, and advise which court.
  • under ‘professional costs’, select ‘stage 2B recovery’ under stage 2.

At the conclusion of the information or location proceedings, where there are substantive parenting orders that remain which cannot be deemed to be an urgent matter, the client is required to first attempt family dispute resolution at VLA’s FDRS to resolve the issues (see Notes on Guideline 1.2 for information on the grants assessment process).

It is the lawyer’s responsibility to seek an adjournment of the next hearing to initiate FDRS, regardless of the client’s or the court’s preference to continue with litigation.

Moving from a stage 2B to a 2E or 2C

Where assistance is initially granted for stage 2B and prior to conclusion of the information or location order proceedings, the matter can be deemed to be an urgent matter, the lawyer should:

  • submit correspondence via ATLAS advising VLA of the above and request the 2B grant to be closed, and
  • lodge an extension recommending assistance under stage 2E or 2C.

The applicant is not required to obtain a required section 60I certificate prior to seeking further litigation funding.

Where an extension under stage 2E is granted, the stage 2E.1 fee (lump sum preparation and appearance fee) will not be available if the lawyer has already claimed the stage 2B.1 fee (lump sum preparation and appearance fee, recovery, information or location order).

Stage 2C or 2E grant

Where a person qualifies for assistance under this guideline and there are substantive parenting issues which can be deemed to be an urgent matter, the stage 2C grant or 2E grant is available. The person seeking assistance will not be required to attempt FDRS but will be granted assistance to litigate.

An application for a 2C or 2E grant can be lodged via ATLAS using the ‘simplified process – FDRS and stage 2’ template.

Moving from a stage 2E or 2C to a 2B

Where assistance is initially granted for stage 2E or 2C, and the lawyer subsequently forms the view that the parenting issues no longer satisfy the definition of urgent matter, the lawyer should:

  • submit correspondence via ATLAS advising VLA of the above and request the stage 2E or 2C grant to be closed, and
  • lodge an extension recommending assistance under stage 2B.

Snapshot of available professional costs in location or information order proceedings (fee table 4.1)

  • No substantive parenting issues which meet the definition of urgent matter:  extension 0, stage 2B
  • Information or location order proceedings conclude and remaining parenting issues not urgent under definition of urgent matter: extension 0, stage 2B or extension 1, stage 1B (FDRS)
  • Initially no substantive parenting issues which meet the definition of urgent matter. Parenting issues subsequently deemed urgent: extension 0, stage 2B or extension 1 - stage 2E or 2C
  • Substantive parenting issues which meet the definition of urgent matter: extension 0 - stage 2E or 2C
The Location or information order flowchart illustrates the various pathways of a grant under guideline 2.2. Where a recovery order is also sought, see the Recovery order flowchart

(d) Documentary requirements

The lawyer’s file must contain a file note making clear the following:

  • the steps taken by the client to locate the child and why a court order is required;
  • how the matter meets each of the thresholds tests;
  • how the matter meets

Where the client is also seeking substantive parenting orders, the lawyer’s file should include:

  • the required section 60I certificate
    or
  • where relevant, details of how the substantive parenting issues meet any of points two to seven of the definition of urgent matter, including where the matter is deemed to become urgent subsequent to being granted assistance.

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

Stage 2 of fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

No additional appearance fees under 2B

In applications for a location or information order where a recovery order is not also sought, the stage 2B grant is a lump sum grant. Only the following fees are available:

Unlike matters involving a recovery order, no additional appearance fees are available.

Applications for combined orders

When an application is made to the court for combined orders, for example for interim parenting orders and a location or information order, only the one lump sum fee is payable for the combined application.

As previously outlined – see (c) Grants assessment processes – where the information or location order proceedings are concluded and there are substantive parenting issues sought, the lawyer cannot claim for additional appearances to resolve the parenting issues.