Notes on Guideline 3.2 – FDRS in matters involving international child abduction

Notes on Guideline 3.2 – FDRS in matters involving international child abduction

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 3.2 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.

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

(a) Eligibility criteria

Assistance may be available for litigation intervention FDRS under this guideline where the criteria A, and B, and C are met.

Criterion A and B

Assistance under this criterion is available where the child is in Australia without the permission of a parent or guardian or the authorisation of a court. This includes situations where a parent, guardian or the court initially consents to, or authorises the child travelling to Australia, but the child is wrongfully kept in Australia.

Assistance is limited to litigation intervention FDRS in international child abduction matters to a person who is:

  • defending an application to an Australian court made under the Convention for the child to be removed from Australia and returned to a country which is a member of the Convention, or
  • defending an application made to an Australian court under the Convention for a person to spend time with the child while they are in Australia, or
  • making an application to a court in a country with which Australia has a bilateral agreement on international parental child abduction ie Egypt or Lebanon, in relation to the child

where the court has ordered the parties to participate in FDR.

Assistance is not available for litigation intervention FDRS for a person seeking to defend any other applications to a court relating to the child under the Convention.

Criterion C

Refer to the notes linked to the following threshold tests:

(b) Grants assessment process

Applications for a grant under this guideline can be lodged via ATLAS using the ‘VLA assessed – FDRS & Stage 2’, but are assessed by VLA. The lawyer should make the following selections:

  • under ‘court hearings’, select ‘no court proceedings’
  • under stage 1 in the professional costs screen, select ‘stage 1 FDRS parenting, child maintenance or spousal maintenance’
  • in the matter type, select ‘The Hague Convention App’.

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.

(c) Documentary requirements

Refer to the notes linked to Guideline 3.1, Documentary requirements.

(d) Fees and billing

Stage 2H in Fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline.

Under a stage 2H grant, up to three conferences are available without an extension of assistance. The lawyer should only attend a second conference where the chairperson recommends another conference or the lawyer believes a further conference will assist in resolving the dispute.