Notes on Guideline 5.2 – litigation and administrative review for adults in child support matters

Notes on Guideline 5.2 – litigation and administrative review for adults in child support matters

Note: The following information provides guidance on how to interpret and apply guideline 5.2 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.

The following information provides general guidance on litigation grants in child support matters. Additional information is available on:

(a) Eligibility ​criteria

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

Assistance should usually be limited to administrative remedies under child support legislation, and to proceedings in state or territory magistrates’ or local courts, or the Federal Circuit Court, unless such proceedings are unavailable.

Criterion A

Refer to notes linked to Guideline 5.1, criterion A.

Criterion B

In some circumstances it is preferable for the person to be represented by a section 29A lawyer, rather than the Child Support Legal Service or a community legal centre (CLC). We may consider a grant under this guideline where a panel lawyer is currently acting for the person or has submitted an application for assistance, in another Commonwealth family law matter, and therefore is familiar with the client and their circumstances. This is likely to be the case where a determination of parentage is an issue in a parenting dispute.

Criterion C

Refer to the notes linked to the following threshold tests:

and to the following supplementary information.

Commonwealth merits test and child support matters

When assessing the cost/benefit of an application for assistance under this guideline, the lawyer must take into account:

  • the financial position of the applicant, the respondent and the children.

Where there is no apparent capacity of the payer parent to pay substantially increased child support or the application will result in only a slight increase to a child support assessment, this may not warrant funding, given the expected costs of legal action:

  • the duration of the payments. Child support for only a short period before the child support case ends (eg when a child is about to turn 18) may not justify the cost of taking action
  • where arrears are sought, the amount of the arrears or debt. Arrears of $200 debt will not justify the cost of taking action.

Criterion D

Refer to the notes linked to the substantial contravention definition.

(b) Grants assessment process

Applications for assistance under this guideline must be lodged via ATLAS using the ‘simplified process – child support’ template, making the following selections:

  • in the matters screen, select ‘child support’ under matter group and then the appropriate matter type
  • Under costs and disbursements, select the required funding, depending on the matter type.

(c) Documentary requirements

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

  • attempts made by the client to obtain assistance from Victoria Legal Aid's Child Support Legal Service or a CLC.

The Child Support Legal Service will provide a letter or referral email if they are unable to assist. If the client has does not have correspondence from the CLC where assistance was sought, a file note should be created noting the time and date of the appointment or phone call and the person that the client spoke to, or:

  • the family law proceedings the client is being/or will be funded for, and
  • details of the proceedings assistance is sought for
  • how each of the thresholds tests are met and
  • where the person seeking assistance is not a parent of the child, how they met the requirements of the child support legislation.

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

(d) 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 fee stages are available under are available under this guideline, depending on the grant recommended: