Notes on the introduction to the Commonwealth family law and child support guidelines

Notes on the introduction to the Commonwealth family law and child support guidelines

Notes on the principles underlying the guidelines​

Principles derived from our statutory obligations under the Legal Aid Act 1978 (Cth) are the driving force behind the family law guidelines. The following are examples of the way we apply these principles to meet our family law guideline requirements.

The Legal Aid Act requires us to ensure the monies allocated for legal assistance (the legal aid fund) are distributed equitably. We use the family law guidelines to ensure we provide assistance to as many people as possible from the limited fund. We need to ensure that funding for the more costly services, such as litigation, is available for those most in need.

People who are most in need of legal assistance are those in challenging circumstances – whether in their financial situation, the complexity of their legal matter, or in any personal vulnerabilities they face. We use guideline requirements such as priority Family Dispute Resolution Service (FDRS) client, priority litigation client and urgent matter, as devices in to preserve the legal aid fund for such people and matters.

We have an obligation under the Legal Aid Act to ensure that legal assistance is provided in the most efficient and economic manner possible. Hence these provisions in the guidelines:

  • in most matters, the first grant should be for FDRS, to ensure the parties have the best opportunity to settle the dispute without going to court
  • child support and child maintenance matters are primarily handled by Victoria Legal Aid in-house lawyers
  • we expect lawyers to issue proceedings in the lowest court with appropriate jurisdiction to hear the matter
  • we expect that costs orders will be sought where appropriate. This is a condition under certain grants.

Notes on how to apply for legal assistance

Simplified grants process

The simplified grants process (SGP) is the process by which lawyers on the section 29A practitioner panels and in-house lawyers apply for grants of legal assistance. ATLAS is our online system for lawyers to lodge and track legal aid applications. All applications for grants of legal assistance, extensions of assistance and claims must be submitted via ATLAS. For more information on the SGP, see part 10 – Simplified grants assessment process in the Handbook.

Under the SGP, lawyers are required to assess matters for eligibility under the applicable guideline. The SGP does not involve a delegation of VLA’s power to approve legal assistance to lawyers. The SGP relies on a lawyer’s certification that a matter meets the relevant VLA Guideline.

We will assess the application for assistance based on the lawyer’s certification that the matter meets the relevant guideline and that they have the relevant documentary proof to support that certification. Assistance is usually approved on such recommendations and certifications if the means test is satisfied. Lawyers should not proceed with work on the file until confirmation of the grant of legal assistance is received from VLA.

The documentary requirements that apply to each guideline are set out in these Notes.

If you are unsure if the matter meets the guideline or the threshold tests, you may use the discretion function in ATLAS (see Table 1).

Not all applications for assistance under the guidelines require lawyers to assess eligibility or are administered under the SGP. For more information see SGP matters assessed by Assignments (discretion requests) and Matters not administered under the SGP.

Means test

Lawyers do not assess eligibility under the means test. They are required to disclose the person’s full financial circumstances and retain documentary proof of means which substantiates the information in the application form.

Lawyers are required to obtain updated proof of means every 12 months for family law matters and retain them on file. They must also update the client’s details via ATLAS if there have been any changes in financial circumstances.

VLA Assignments will assess the person’s eligibility for assistance based on the information disclosed in the application form.

Lawyers are required to keep VLA Assignments advised of any change in financial circumstances during the life of grant.

For information about the documentary requirements that apply for proof of means, see the Simplified grants process: notes on VLA guidelines. Lawyers are encouraged to complete the proof of means worksheet to assist in this assessment.

Resources for lawyers

The following resource to assist lawyers administer matters under the SGP are available on the VLA website:

The following worksheets are available on the Invoice, forms and worksheets page of the Handbook.

  • Proof of means worksheet
  • Early intervention and dispute resolution (adult)
  • Information or location orders (Guideline 2.2)
  • Litigation adults (Guidelines 1.3 and 1.11)
  • Recovery order (Guideline 2.1)
  • Request for overcap funding worksheet
  • Paternity testing worksheet.

SGP matters assessed by Assignments (discretion requests)

Applications for assistance where the matter does not specifically meet the guideline or threshold tests are assessed by Assignments (eg a change of name application).

For these applications, lawyers must:

  • submit the application or extension using the appropriate SGP template, and
  • certify that they are not satisfied that the guideline and/or threshold test is met, and
  • request Assignments to assess the application and exercise their discretion in relation to a grant of assistance.

Table 1: Seeking discretion from Assignments

Matters funded under the SGP that require VLA determination

Matter type How to seek discretion
A matter that falls within Commonwealth family law matters for which assistance will not be granted
  1. Use the appropriate SGP template to submit the application or extension via ATLAS.
  2. In the ‘practitioner certification’ screen, select the ‘not satisfied, discretion’ using the drop-down menu for ‘guidelines outcome’ and/or ‘merit outcome.’
  3. A text box will appear. Outline your submissions and attach any documentation in support of the submissions.
  4. If the space provided in the text box is insufficient and/or supporting documentation needs to be attached, the ‘submit correspondence’ can be used.
Where the person seeking assistance can only be funded under the Commonwealth’s special circumstances. This applies where funding is sought for a matter not covered in the guidelines. Examples include divorce and nullity proceedings and funding for property matters only.
  1. Use the appropriate SGP template to submit the application or extension via ATLAS.
  2. In the ‘practitioner certification’ screen, select the ‘not satisfied, discretion’ using the drop-down menu for ‘guidelines outcome’ and/or ‘merit outcome.’
  3. A text box will appear. Outline your submissions and attach any documentation in support of the submissions.
  4. If the space provided in the text box is insufficient and/or supporting documentation needs to be attached, the ‘submit correspondence’ can be used.
Where the lawyer is unsure that the matter meets the applicable guideline or threshold requirements
  1. Use the appropriate SGP template to submit the application or extension via ATLAS.
  2. In the ‘practitioner certification’ screen, select the ‘not satisfied, discretion’ using the drop-down menu for ‘guidelines outcome’ and/or ‘merit outcome.’
  3. A text box will appear. Outline your submissions and attach any documentation in support of the submissions.
  4. If the space provided in the text box is insufficient and/or supporting documentation needs to be attached, the ‘submit correspondence’ can be used.

Funding requests:

Funding beyond VLA’s family law and child support cost ceiling ($15,510)

Request for overcap worksheet needs to be completed by the lawyer and documents on the checklist uploaded via ATLAS.
A third FDRS conference An extension is to be submitted via ATLAS requesting a special disbursement for the third FDRS conference. The lawyer must provide reasons why a third conference is required that include details of the progress since the last FDRS conference, the issues still in dispute/orders sought by each party, how the orders/outcome sought satisfies the Commonwealth merits test and a copy of the chairperson’s report from the previous FDRS conference.
Additional interim contested hearings (stage 2G) An extension is to be submitted via ATLAS requesting Stage 2G. The lawyer must provide a copy of the court portal listing the family law matter as an interim contested hearing and provide a brief report of the issues in dispute between the parties.
Additional trial preparation (stage 3E) An extension is submitted via ATLAS requesting Stage 3E.
Special disbursements not subject to lawyer recommendation or not available in Table Q An extension is submitted via ATLAS requesting a special disbursement for the cost of the expert report and reasons why the report is required.

Lawyers should allow a minimum of two weeks for processing of matters that require VLA assessment. If the required documentation is not provided, or additional documentation needs to requested, this will increase the time needed to process the application.

Matters not administered under the SGP

Not all applications under the guidelines are administered under the SGP. In the following matters, a lawyer submits an application via ATLAS, uploading the documents supporting the application, and eligibility is assessed by VLA:

  • international child abduction matters
  • appeals in the Family Court
  • special medical procedures involving children
  • applications on behalf of child litigants
  • applications by litigation guardians.

Information on how to submit these applications can be found under the relevant guideline.

Litigation guardians

Where a litigation guardian is appointed in a matter (eg by the Office of the Public Advocate), and a grant of assistance is applied for, the person seeking assistance is not the litigation guardian, but the person for whom they are acting as litigation guardian. Proof of means must be provided for the person seeking assistance.

Where the appointed litigation guardian is a parent, their application for assistance is assessed in their capacity as a parent and they must meet the means test.

Transfers

For information relating to the transfer of files between firms, see Requesting a change of allocated lawyer in the VLA Handbook. In brief:

  • The lawyer seeking a transfer must assess the matter for eligibility under the applicable guideline and threshold tests. The assessment by the original lawyer cannot be relied upon.
  • The lawyer seeking the transfer must obtain the required documentary proof of means or the client.
  • We do not bear any cost involved in a transfer, including the photocopying of documents.
  • In the event a transfer is refused and the lawyer seeking the transfer has undertaken any work for the applicant, we will not pay for that work.
  • If the transfer is approved, we will only transfer the existing funds that have already been approved and remain available after the original lawyer has submitted all their claims. Once the transfer is approved, the new lawyer will be able to see what fees are available in the grant. If further funding is required, the new lawyer needs to submit an extension request.
  • The lawyer requesting the transfer is not required to know the existing ATLAS file ID number for the matter to seek a transfer. The transfer request will be submitted on a fresh file ID number. Once the matter is transferred, the grant will proceed on the original file ID number and no more activity should take place on the new file ID number.

If the lawyer seeking the transfer requires information from VLA in relation to the existing grant, they must provide an authority from the client. We are unable to disclose such information without being authorised to do so by the client.

Notes on documentary requirements

General prin​ciples

To maintain the high quality of VLA's legal services, all VLA staff and all panel lawyers undertaking work under a grant of legal assistance are expected to comply with VLA's practice standards and measures for VLA practice standards. These include standards and measures relating to documentary and file management requirements, and working with particular client groups, such as children (see section 5 of the Measures for VLA practice standards).

The following guidance on documentary requirements is supplementary to these standards and measures and is specific to VLA-funded Commonwealth family law and child support matters.

A lawyer’s file for each matter funded under the Commonwealth family law and child support guidelines needs to include:

  • clear file notes of all recommendations made under the guidelines and the threshold tests and the reasons for them
  • the required evidence in support of all recommendations
  • relevant proof of means (except where the client is in custody and a waiver is sought in the application)
  • copies of all relevant reports, such as (without limitation)
    • section 60I certificate
    • family reports
    • section 11F conference memorandum
    • any relevant DHHS reports
    • medical reports
    • reports of third party service providers eg drug and alcohol services or contact centres
    • confirmation of service waiting list letters (eg contact centres)
    • psychiatric risk assessment reports.
  • an indication of the orders sought by each of the parties
  • copies of briefs to counsel
  • copies of all documents filed with the court
  • records of all conference and court attendances, including names of adjudicators, counsel and parties present, an outline of negotiation or submissions made and duration of the attendance
  • copies of any court orders, and directions or notations made by the court
  • evidence that the lawyer explained the nature of the grant of legal assistance to the client and kept the client informed of their rights and obligations in relation to the grant of assistance
  • clear notes of all client instructions, with instructions to be obtained at each stage of a matter
  • documented forensic and legal analysis of the matter (the case strategy tool will assist in this task – see below)
  • clear notes of all advice to the client, with all communication with the client to be appropriate to the client’s age, maturity, education, literacy, past experiences and cultural and social circumstances
  • copies of all correspondence
  • clear documentation of all outcomes from work performed
  • records of and tax invoices for disbursements claimed
  • a final report to the client at the conclusion of the matter confirming the outcome and advising of any consequent rights and obligations
  • Lawyers are also encouraged to complete the relevant family law worksheet and Proof of means worksheet.

The family law practice resources page of the VLA website provides access to a range of resources to help lawyers meet their documentary and file management obligations, as well as information on assessing capacity to give instructions (by both adults and children) and on taking instructions from very young, traumatised and/or intellectually disabled children. The following quality practice tools are available:

  • case strategy plan
  • litigation checklist
  • memo to counsel template
  • adult client capacity checklist.

Timing

Lawyers are required to:

  • ensure that all required documents have been obtained prior to submitting an application via the ATLAS simplified grants process
  • apply for a grant of legal assistance, or an extension of assistance, before undertaking any work or engaging third party providers (such as counsel, psychiatrists, and psychologists)
  • advise third party providers of the relevant fees fixed by VLA before engaging their services
  • avoid retrospective grant applications (these will not be approved unless there are exceptional circumstances)
  • submit all claims at the end of each stage of the matter and prior to submitting extension requests;
  • submit extension requests for over-cap funding in advance (but not more than six months in advance)
  • immediately notify us of anything that may affect a client’s entitlement to legal assistance (including circumstances that impact on the merit of a matter) or obligation to pay a contribution to VLA. This can be done via the ATLAS simplified grants process ‘submit correspondence’ or ‘update client details’ function
  • immediately notify us, via the ATLAS simplified grants process ‘submit correspondence’ function, if they have ceased to act for the client, and include reasons for ceasing to act
  • submit a final account to us via ATLAS, and complete the ATLAS ‘file outcome’ screen, within 30 days of the matter being legally finalised. A file outcome should only be submitted if the matter is legally finalised. In any other circumstance, the lawyer should give us reasons why they are no longer acting for the client or why, in their view, the grant of assistance should not continue. This can be done via the ATLAS simplified grants process under ‘submit correspondence’.

Specific documents

Lawyers should familiarise themselves with the following documents available on the VLA website:

Notes on grants of assistance after ​final court orders have been made

Additional requirements apply for assistance after final orders have been made. These are set out in the eligibility criteria for particular guidelines, or as ‘other mandatory requirements’. Where sought, a new application should be submitted, not a request for an extension.

Assistance for recovery orders after final orders have been made also require a new application for assistance.

Applicat​ions in a case

An application in a case usually attracts the subsequent hearing fee (stage 2F fee in fee table 4.1).

Lawyers should ensure that they are aware of how many subsequent hearing fees remain available under their broadband grant to avoid having to make a retrospective application.

Where the application in a case relates to contravention or enforcement proceedings, the lawyer is entitled to a stage 2I grant (fee table 4.1).

Where the application in a case relates to a recovery application the lawyer is entitled to a stage 2B grant.