Notes on Guideline 5.6 – advice and negotiation for children in child support and child maintenance matters

Notes on Guideline 5.6 – advice and negotiation for children in child support and child maintenance matters

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 5.6 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 or D, and E, and F, are met.

Criterion A and B

Examples of where VLA may consider it appropriate for a child litigant to participate in the negotiations are where:

  • the child is the parent in a dispute
    or
  • the person is over 18
    and
  • the parent is genuinely unwilling or unable to do so.

The child must be sufficiently mature to give instructions to a lawyer. Part 5.1.1of VLA’s practice standards provide additional information in relation to representing children in family law matters, including assessing capacity to give instructions and taking instructions from very young, traumatised and/or intellectually disabled children.

Criterion C

Most child support matters are handled by either 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 D and E

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 F

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 parties;

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

  • the duration of the payments. Child support or 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

Discharge or vary orders

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

(c) Grants assessment process

Applications under this guideline must be submitted VLA Atlas using the ‘VLA Assessed – 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 matter type.

VLA Assessed templates require the lawyer to 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.

(d) Documentary requirements

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

  • why it is appropriate for the child to participate in negotiations, including the lawyer’s assessment that the child is sufficiently mature to give instructions
  • why the parent is unable to make the application
  • advice that no previous applications have been submitted in relation to the current dispute
  • 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, including documentary proof of means if the applicant is an adult child.

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.