Notes on Guideline 5.5 – litigation for adults in child maintenance and adult child maintenance matters

Notes on Guideline 5.5 – litigation for adults in child maintenance and adult child maintenance matters

Note: The following information provides guidance on how to interpret and apply guideline 5.5 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 are met.

Criterion A

Most child support matters are handled by either Victoria Legal Aid's (VLA’s) in-house Child Support Legal Service or a community legal centre (CLC). We will not make a grant of legal assistance to a panel lawyer under this guideline unless the person seeking assistance has first contacted our Child Support Legal Service or a CLC, and has been unable to obtain appropriate assistance.

Requests for assistance from the Child Support Legal Service or to a CLC are made directly to those services and not by application for a grant under the guidelines. Further information regarding the Child Support Legal Service can be found on our website.

CLCs that provide a similar service to the Child Support Legal Service are:

Clients are not limited to seeking assistance from the above three CLCs for the purposes of this guideline, but may have approached any CLC listed on the community law website.

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 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 following:

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

Where there is no apparent capacity of the payer 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 m​andatory requirements

Where a party is not a parent of the child

Refer to the notes linked to the definitions of:

Enforcement of orders

Refer to the notes linked to the definition of substantial contravention and on contravention, enforcement and contempt of court proceedings.

The following provides additional guidance in applications for assistance for enforcement proceedings:

  • the request for legal assistance should be made without unreasonable delay after the orders have been contravened
  • the person requesting assistance for enforcement proceedings must seek a costs order against the other party from the court. For more information, refer to costs recovery
  • we treat grants of assistance for enforcement proceedings as a new matter for the purposes of family law cost management. This means that we will not include the amount of the grant when calculating the cost ceiling for the substantive matter (see Family law costs management).

(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 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:

  • the application to be heard
  • attempts made by the client to obtain assistance from VLA'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:

  • details of family law proceedings the client is being/or will be funded for
  • how each of the thresholds tests are met
  • where discharge or vary is sought, how the significant change in circumstances test 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)
  • where enforcement is sought, details of the substantial contravention.

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

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