Notes on Guideline 6.3 – litigation in spousal maintenance disputes

Notes on Guideline 6.3 – litigation in spousal maintenance disputes

Note: The following information provides guidance on how to interpret and apply guideline 6.3 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.

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

(a) Eligibility c​riteria

Assistance may be available under this guideline where criteria A is met.

Criterion A

Refer to the notes linked to the following threshold tests:

and to the following supplementary information.

Commonwealth merits test and spousal maintenance matters

In considering merit, the lawyer must be satisfied that:

  • the applicant for assistance cannot obtain the order by consent
  • the other party’s whereabouts are known
  • there is good reason to believe that the other party has the capacity, or is likely to have the capacity in the future, to pay to the applicant either spousal maintenance, or increased maintenance.

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

  • the financial position of the applicant and the respondent.

Where there is no apparent capacity to pay spousal maintenance or the orders sought would result in only a slight increase in spousal maintenance, the matter is unlikely to meet the merits test, given the expected costs of legal action:

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

If the significant change in circumstances has been caused by the person seeking assistance, we will consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance.

Where assistance is sought to discharge or vary a spousal maintenance order, unless the matter is urgent, the lawyer should first consider whether a grant for FDRS should be made.

Enforcement of orders

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

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

An application must be lodged via ATLAS using the ‘simplified process FDRS & stage 2’ template, making the following selections:

  • In the maintenance screen select ‘Main applic spouse’
  • under ‘court hearings’, select ‘yes’ and advise of the appropriate court
  • under stage 1 in the professional costs screen, select the required funding under the appropriate court.

The broadband stage 2E grant consists primarily of the initial preparation and appearance lump sum and three subsequent hearings. On the rare occasion where funding is required for a further subsequent hearing, an extension request needs to be submitted requesting a stage 2F grant, outlining why further funding is required.

If the lawyer needs to provide additional information, this should be done by using the ‘submit correspondence’ function.

Moving from the FCC to the FCA

If a matter is transferred from the Federal Circuit Court (FCC) to the Family Court (FCA), the lawyer is required to update the ‘court type’ when submitting the next extension in relation to the matter via ATLAS.

If the matter is still at the interim court stage, then no further action is required given the same fee tables apply for both courts. If the matter is listed at trial stage, then the lawyer should submit a new extension via ATLAS and request the appropriate Family Court trial grant.

(d) Documentary requirements

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

  • how the matter meets each of the thresholds tests
  • details of the significant change in circumstances, where discharge/vary sought
  • details of substantial contravention where enforcement sought.

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