Notes on Guideline 5.3 – advice and negotiation for adults in child and adult child maintenance matters

Notes on Guideline 5.3 – advice and negotiation for adults in child and adult child maintenance matters

Note: The following information provides guidance on how to interpret and apply guideline 5.3 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, and C, and D are met.

Criterion A

Refer to notes linked to Guideline 5.1, criterion A.

Criterion B and C

The advice and negotiation grant is intended as a first step in attempting to resolve a dispute with minimal legal intervention. For that reason, a grant for advice and negotiation can only be the first grant recommended in a dispute, and can only be granted once in a dispute.

Criterion D

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 maintenance or the application will result in only a slight increase to a child maintenance, this may not warrant funding, given the expected costs of legal action;

  • the duration of the payments. Child maintenance for only a short period (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.

(b) Other mandatory requirements

Where a party is not a parent of the child

Where the person seeking assistance is not a parent of the child, the lawyer must be satisfied that the person meets the requirements set out in section 66F of the Family Law Act 1975 (Cth).

Discharge or vary orders

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

(c) 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 ‘maintenance’ under matter group and then the appropriate matter type
  • under ‘court hearings’, select ‘no court proceedings’
  • under costs and disbursements, select the required funding, depending on the matter type.

(d) Documentary requirements

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

  • details of the application to be heard
  • attempts made by the client to obtain assistance from Victoria Legal Aid's Child Support Legal Service or a community legal centre (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:

  • how each of the thresholds tests is met
  • where discharge or vary is sought, how the significant change in circumstances is met
  • where the person seeking assistance is not a parent of the child, how they met the requirements of section 66F of the Family Law Act 1975 (Cth).

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

Fees for this grant can only be claimed where the advice and negotiations take place prior to litigation (ie this is the first grant in the dispute).

The following documents to support claims made under the grant should be retained on the file:

  • consultations with the client, including appointments and telephone attendances
  • advice provided to client both oral and written
  • negotiations conducted with the other party or their lawyer, including telephone attendances and letters
  • letter to the client advising of the outcome of the negotiations and details of any further action to be taken
  • a copy of consent orders filed with the court, where applicable.