Notes on the key definitions

Notes on the key definitions

The following notes provide guidance on applying key terms defined in the guidelines.

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Best interests of the child​

For the purposes of deciding whether a person who is not a parent of a child should receive a grant of assistance in a parenting dispute relating to the child, the ‘best interests’ consideration involves an evaluation of a range of factors that are likely to contribute to the best outcome for the child. The assessment may involve consideration of the principles set out in s. 60CC of the Family Law Act 1975 (Cth), but is not confined to consideration of these principles.

This definition relates to applications for assistance for persons who are not parents of the subject child.

A party who is not a parent may be any person who is not a biological parent. It is not necessary that the person be a blood relative.

For a non-parent to qualify for assistance, in addition to the requirements set out in the relevant guideline, they must be significant to the care, welfare and development of the child and/or it must be in the child’s best interests for the person to be granted legal assistance in relation to the dispute.

If the child’s safety or welfare is at risk, then it may be in the child’s best interests for Victoria Legal Aid (VLA) to provide a grant of legal assistance to a third party. If there are state child protection orders in place, or current court proceedings under a state child welfare law are on foot, and those orders or proposed orders are in favour of a person who is not a parent, VLA may make a grant of legal assistance to the extent necessary to secure the child’s best interests.

Best interests – Example A

The mother of a five-year old child is deceased. The child resides with the father. The maternal grandmother has only spent limited time with the child during Christmas and birthdays throughout the child’s life but seeks to spend regular time with the child after the death of the mother. The father refuses to allow time with the maternal grandmother. It may be considered in the best interests of the child for the maternal grandmother to be provided with legal assistance to ensure the child’s ongoing connection with the maternal family.

Best interests – Example B

The child lives with the mother and spends two nights a week with the father. The paternal grandparents spend time with the child and the father seeks orders that they have their own time with the child. It may not be in the best interest of the child for funding to be provided to the paternal grandparents as any orders for spend time with the paternal grandparents would limit the time the child has one of the parents.

Complex matter

This definition relates to the availability of instructing fees in independent children's lawyer (ICL) matters. ICLs must be able to demonstrate that a matter is complex by the documentation on their file. This may include any or all of the following:

  • affidavits from the parties outlining the allegations
  • applications or responses seeking orders to relocate internationally
  • expert reports.

A complex matter may include one or more of the following:

  • allegations of significant mental health issues of a parent or a child, that present an unacceptable risk to the child
  • allegations of significant drug or alcohol issues of a parent or a child, that present an unacceptable risk to the child
  • significant alienation of the child against a parent
  • a proposal for international relocation
  • matters related to international child abduction
  • matters relating to special medical procedures involving children
  • contested evidence of multiple experts
  • allegations of physical, psychological or sexual abuse (which are more than 12 months old and hence it is not a Magellan matter), and/or
  • where neither party may be considered a suitable carer for the child.

Complex matters – Example A

The father alleges that the mother suffers from depression but makes no allegation that this presents an unacceptable risk to the child. Assistance should not be recommended for instructing.

Complex matters – Example B

The mother alleges that since separation six months ago, the father has only allowed her time with the two-year old child on one occasion and that she is being alienated from the child. Assistance for an instructing solicitor may be provided in these circumstances.

ICLs may only recommend assistance for instructing where the matter is a Magellan matter, complex matter, or a matter where it is essential to act as instructor to form an opinion about what is in the child’s best interests, based on the evidence.

Cultural or language barriers

For the purpose of determining whether a person is a priority Family Dispute Resolution Service (FDRS) client or a priority litigation client, a person experiences cultural or language barriers if:

  • the characteristics or social norms of the ethnic or religious community to which they are associated by birth or identification, mean they are at a material (or significant) disadvantage in relation to the dispute for which they seek assistance, or the processes available to resolve the dispute
    and/or
  • English is not their first language, they have a low level of proficiency in English and there are reasons why the use of an interpreter would not adequately address the disadvantage they face on the basis of language.

The following are examples of a person experiencing cultural and/or language barriers:

  • a recently arrived immigrant from a country where there is a fear of government and statutory agencies, whose first language is a language other than English and who has low levels of English language proficiency
  • a person who has recently arrived in Australia as a refugee or humanitarian entrant
  • a person who experiences a power imbalance either:
    • in their relationship with the other party to the dispute, due to cultural differences
      or
    • in their cultural community, on the basis of things such as gender or other characteristics.

Cultural bar​rier

A person may be considered to have a cultural barrier where the characteristics or social norms of the ethnic or religious community to which they are associated with mean they are at a material disadvantage in relation to the dispute for which they seek assistance, or navigating the process of settling the dispute.

A cultural barrier is any practice, tradition or conception in the applicant’s cultural background which prevents them from participating effectively in FDRS without legal representation or running their own case in court.

Cultural barrier – Example A

The person applying for assistance has lived their entire life in a community where the role of the husband as head of the house is absolute. The person applying for assistance has left her husband and wishes to negotiate a parenting plan, but is unable to negotiate from an equal position due to cultural conditioning. This person could be assessed as experiencing a cultural barrier.

Cultural barrier – Example B

The person applying for assistance was raised in a religious community where women have very few rights in relation to children and property. The person applying for assistance left this community as an adult and married someone who is not a member of the community. The Applicant is not at a material disadvantage when negotiating with her husband in relation to children’s issues. This person should not be assessed as experiencing a cultural barrier.

Language Barrier

It is not sufficient to recommend assistance solely on the basis that English is not the client’s first language. There must be real and demonstrable reasons why the use of an interpreter would not address the disadvantages faced by the person based on language.

Language barrier – Example A

A recent refugee speaks very little English and comes from a country with no family law legislation. Even with the assistance of an interpreter, the Applicant would not be able to understand and participate effectively in the proceedings without representation. This person may be assessed as having a language barrier.

Language barrier – Example B

A recent migrant does not speak English, but has a graduate degree and comes from a country with a similar legal system to Australia. With the assistance of an interpreter, the Applicant would be able to understand and participate effectively in the proceedings without legal representation. This person should not be assessed as having a language barrier.

Documentary requirements

A file note containing the following:

  • clarification on the nature of the cultural or language barrier the person seeking assistance faces. This file note can be based on the client’s instructions
    and
  • where the applicant is being assessed for priority FDRS client, a file note confirming the lawyer’s assessment that the cultural or language barriers prevent the applicant from participating effectively in FDRS without legal representation
    or
  • where the applicant is being assessed for priority litigation client, a file note confirming the lawyer’s assessment that the cultural or language barriers:
    • make the applicant unable to effectively run their own case in court without a lawyer representing them
      or
    • impact on the ability of the child maintain a meaningful relationship with the applicant or another party to the proceedings.

Diagnosed psychiatric or psychological illness

Even where an applicant instructs the lawyer that they suffer from a diagnosed psychiatric or psychological illness and provides a copy of a letter from an appropriately qualified person confirming the diagnosis, they will not automatically meet this requirement.

The lawyer must also be satisfied that the illness:

  • makes the person unable to participate effectively in FDRS without representation (for an FDRS grant), or
  • makes the person unable to run their own case in court without representation (for a litigation grant), or
  • impacts on their ability to maintain a meaningful relationship with the child (for a litigation grant).

The lawyer need to be mindful that many applicants seeking legal assistance would identify themselves as having a psychological illness and have supporting letters from medical practitioners. However, not all of them would be unable to represent themselves in FDRS or run their own case in court due to such illnesses.

Lawyers should also be mindful of the possibility that while a person with a diagnosed psychiatric or psychological illness might satisfy the requirements of priority litigation client, they may not satisfy the requirement of priority FDRS client. This possibility may arise where their diagnosed psychiatric or psychological condition may prevent them from running their case in the formal setting in court, but not prevent them from effectively representing themselves in the more informal setting of FDRS.

Diagnosed psychiatric or psychological illness – Example A

The applicant has been diagnosed with an anxiety disorder. They have been on medication previously but not on medication currently. Their condition appears to be under control. However, they instruct that their condition re-emerges the moment they must deal with a situation more stressful than what you would ordinarily experience in daily life. They have a letter from their treating GP outlining that the condition has been exacerbated by stress in the past. It may be appropriate to recommend assistance for this person as a priority FDRS client or priority litigation client.

Diagnosed psychiatric or psychological illness – Example B

The applicant was diagnosed with anxiety disorder a many years ago. They have been through years of counselling and occasionally still see their counsellor. They are not currently on any medication and instruct that the condition is well under control and they do not expect that it would impact on their ability to represent themselves. It would not be appropriate to recommend assistance as a priority FDRS client or priority litigation client in these circumstances.

If the client instructs that their illness is exacerbated by stress, this should be confirmed in the evidence produced by the treating professional.

Documentary requirements

The following documents should be retained on the file:

  • a letter from the applicant’s psychiatrist, psychologist, medical specialist or general practitioner (as applicable) confirming the diagnosis
    and
  • where the applicant is being assessed for priority FDRS client, a file note confirming the lawyer’s assessment that the diagnosed psychiatric or psychological illness prevents the applicant from participating effectively in FDRS without legal representation
    or
  • where the applicant is being assessed for priority litigation client, a file note confirming the lawyer’s assessment that the diagnosed psychiatric or psychological illness:
    • makes the applicant unable to effectively run their own case in court without a lawyer representing them, or
    • impacts on the ability of the child maintain a meaningful relationship with the applicant or another party to the proceedings.

Disability​

For the purpose of determining whether a person is a priority FDRS client or a priority litigation client, a disability is one of the following:

  • a cognitive impairment, such as an intellectual disability or an acquired brain injury
  • a serious health condition or physical disability.

The client being in receipt of a Disability Support Pension from Centrelink is not sufficient to satisfy this criterion.

The client’s instructions that they suffer from a disability are not sufficient to satisfy this criterion (please see documentary requirements below).

When assessing a client’s eligibility under the second limb of ‘disability’ ie serious health condition/physical disability, the lawyer should consider the extent to which the VLA FDRS service or the court could accommodate the condition or disability.

Factors that should be taken into consideration when assessing whether a person’s condition impacts on their ability to represent themselves (at FDRS or court) include:

  • ability to communicate verbally
  • ability to prepare documents
  • effects of medication
  • physical incapacities.

Disability – Example A

A person has had an arm amputated after a car accident. Whether that person is eligible under this criterion may depend on how recently this occurred.

If the loss of the arm was recent, the person may have difficulty in preparing documents and may be on strong medication that affects their ability to concentrate and makes them drowsy. Assistance may be recommended in this instance.

If the loss of the arm occurred some time ago, the person may have learnt to compensate, be able to prepare material and no longer be on medication that would impact on their ability to concentrate. Assistance should not be recommended in this instance.

Disability – Example B

A person with a significant stutter may be eligible under this criterion if the stutter prevents them from being able to effectively communicate verbally when in stressful situations.

However, if the lawyer is states that stress exacerbates a condition, making that person unable to effectively participate in mediation or conduct their own litigation, this must be confirmed by a qualified professional. It is not sufficient for the lawyer to make this assessment.

Disability – Example C

A person seeking assistance suffers from a serious back condition which prevents them from being seated or standing for longer than 15 minutes at a stretch. It would be considered that this person can participate effectively in FDRS or conduct their own litigation as the person’s requirements could be accommodated by FDRS or the Court.

If it was shown this serious health condition impacted on the child’s ability to have a meaningful relationship with them, it may be appropriate to recommend assistance as a priority litigation client.

Documentary requirements

Where the disability is ‘a cognitive impairment’, the following documents should be retained on the file:

  • a copy of the assessment completed by an appropriately qualified professional confirming the cognitive impairment
    and
  • where the applicant is being assessed for priority FDRS client, a file note confirming the lawyer’s assessment that the cognitive impairment prevents the applicant from participating effectively in FDRS without legal representation
    or
  • where the applicant is being assessed for priority litigation client, a file note confirming the lawyer’s assessment that the cognitive impairment:
    • makes the applicant unable to effectively run their own case in court without a lawyer representing them, or
    • impacts on the ability of the child maintain a meaningful relationship with the applicant or another party to the proceedings.

Where the disability is ‘a serious health condition or physical disability’, the following documents should be retained on the file:

  • a letter/assessment by an appropriately qualified professional confirming the condition/disability. This letter/assessment must include detailed information on the nature and extent of the condition/disability
    and
  • where the applicant is being assessed for priority FDRS client, a file note confirming the lawyer’s assessment that the serious health condition/disability prevents the applicant from participating effectively in FDRS without legal representation
    or
  • where the applicant is being assessed for priority litigation client, a file note confirming the lawyer’s assessment that the serious health condition/disability:
    • makes the applicant unable to effectively run their own case in court without a lawyer representing them, or
    • impacts on the ability of the child maintain a meaningful relationship with the applicant or another party to the proceedings.

Drug and/or alcohol issues​

For the purpose of determining whether a person is a priority FDRS client or a priority litigation client, a person has drug or alcohol issues if they are, or have been in receipt of services to address the misuse or over use of alcohol and/or drugs (including prescription, over the counter and illegal drugs).

Where an applicant qualifies under this criterion, lawyers must make a careful assessment of how the orders the applicant seeks meet the Commonwealth merits test.

Drug and/or alcohol – Example A

The person has a long history of heroin addiction. They have sought assistance for the addiction in the past and are currently on the methadone program. Their drug addiction has lead them to be transient in the past and has impacted on their ability to maintain a meaningful relationship with their child. The person accepts that the time they spend with the child will need to begin as supervised and increased gradually. This person may be eligible as a priority litigation client.

Drug and/or alcohol – Example B

The person seeking assistance overdosed of prescription medication many years earlier. The medication was prescribed for an injury that was suffered at that time. They no longer take the medication, and besides the one incident, have only ever used medication as prescribed. The person would not be considered to have a drug or alcohol issue.

Documentary requir​ements

The following documents should be retained on the file:

  • evidence from a professional who has assisted the client that the client has a drug and/or alcohol issue
    and
  • where the applicant is being assessed for priority FDRS client, a file note confirming the lawyer’s assessment that the drug/alcohol issues prevent the applicant from participating effectively in FDRS without legal representation
    or
  • where the applicant is being assessed for priority litigation client, a file note confirming the lawyer’s assessment that the drug/alcohol issues:
    • make the applicant unable to effectively run their own case in court without a lawyer representing them, or
    • impact on the ability of the child maintain a meaningful relationship with the applicant or another party to the proceedings.

Family violen​ce

The term family violence has the same meaning as that contained in section 4AB of the Family Law Act 1975 (Cth), ie behaviour towards a family member that is violent, threatening or controlling, or causes the family member to be fearful. This includes, but is not limited to, physical, verbal, financial abuse and emotional abuse.

The assessment of whether a person seeking assistance meets the priority FDRS client definition based on their experience of family violence is made by the lawyer on the instructions provided. No substantiating evidence is required; however, the lawyer needs to assess whether the nature and degree of conflict between the parties is such that the person seeking assistance has experienced family violence as set out in the Family Law Act and the guidelines, and that this affects a party’s ability to effectively participate in the proceedings.

Family violence that meets this criterion – Example A

The applicant alleges that they expect the other party/the other party’s family will act to alienate them from the rest of their community when they proceed with this matter.

Family violence that meets this criterion – Example B

The other party has alleged that the applicant has perpetuated family violence against them and the children. The applicant strenuously denies these allegations.

Family violence that does not meet this criterion – Example C

The applicant asserts that the other party is subjecting them to emotional abuse by not allowing them to see the children. In the absence of other allegations of abuse, this matter will not meet the guidelines.

This guideline applies to all parties in a matter which involves allegations of family violence, even if those allegations are denied by one of the parties.

Lawyers should be particularly mindful of the requirements under the Commonwealth merits test where assistance is recommended for the person alleged to be the perpetrator of family violence. If it is determined that family violence has been committed by the person seeking assistance, then the orders sought will need to reflect this.

Allegations of family violence and merit – Example A

The mother alleges that she experienced verbal abuse from the father during their relationship. The father acknowledges that the verbal abuse occurred and agrees that conditions need to put in place in the parenting plan to ensure that the child is not exposed to family violence. Assistance may be available to both parties in such circumstances.

A file note outlining the family violence experienced or alleged should be retained on the file.

Homelessness

Homelessness includes primary homelessness and secondary homelessness.

Homelessness – Example A

The applicant has no permanent place of residence. He mostly sleeps in his car, at times stays with friends. His parents live in the country and occasionally he goes to visit them and stays with them a few days. He gives his parents address as the postal address. We consider this applicant to be homeless.

Homelessness – Example B

The applicant was forced to leave her rental property as she became unemployed and could no longer afford the rent. She has moved in with her parents and is paying them board. She intends to stay with her parents until she finds employment and can again afford rental accommodation. This person would not be considered homeless.

A file note clarifying how the applicant’s circumstances meet the definition of ‘homelessness’ should be retained on the file.

Literacy barriers

For the purposes of determining whether a person is a priority FDRS client or a priority litigation client, a person experiences literacy barriers if they have difficulty reading and writing in English or using numbers, images, computers, and other common ways of communicating or accessing knowledge.

Literacy – Example A

The applicant speaks and writes English very well. However, they are not computer literate. This applicant is considered to have a literacy barrier.

Literacy – Example B

The applicant has been diagnosed with a learning disability and are unable to read without assistance. This person would be considered to have a literacy barrier.

Literacy – Example C

The applicant has English as a second language, however, they are reasonably proficient in speaking and reading in English and are competent in using computers. This person would not be considered to have a literacy barrier.

Documentary requ​irements

The following documents should be retained on the file:

  • a file note detailing how the applicant’s circumstances meet the definition of ‘literacy barriers’
    and
  • where the applicant is being assessed for priority FDRS client, a file note setting out how the lawyer assesses that this barrier prevents the applicant from participating effectively in FDRS without legal representation
    or
  • where the applicant is being assessed for priority litigation client, a file note setting out how the lawyer assesses that this barrier:
    • makes the applicant unable to effectively run their own case in court without legal representation, or
    • impacts on the ability of the child to maintain a meaningful relationship with the applicant or another party to the relationship.

Magellan matter

Where a matter is listed in the Magellan List, it is relevant to VLA funding in the following circumstances:

  • the matter will not be subject to the family law fee ceiling
  • ICL’s will be entitled to instructing fees at trial.

All other relevant criteria apply in Magellan matters including the guidelines, merits test and means test.

Lawyers must state on the application or extension if the matter is listed in the Magellan List.

Priority FDRS cli​ent

For a person to be a ‘priority FDRS client’, criteria A or B must be met.

A priority Family Dispute Resolution Service (FDRS) client is either:

  1. a person with one or more of the following vulnerabilities:

The priority FDRS client can only rely on one of these core vulnerabilities where the vulnerability prevents them from effectively participating in FDRS without legal representation.

or

  1. a person who:
  • is experiencing homelessness
    or
  • identifies as Aboriginal or Torres Strait Islander
    or
  • has experienced, or is at risk of experiencing family violence.

For guidance notes, documentary requirements and examples for the above criteria, please refer to the notes linked to each of the definitions.

Priority litigation client​

For a person to be a ‘priority litigation client’, criteria A, or B, and C must be met.

A priority litigation client is:

  1. a person who identifies as Aboriginal or Torres Strait Islander
    or
  2. a person with one or more of the following vulnerabilities:

and the vulnerability

  • makes the person unable to effectively run their own case in court without a lawyer representing them
    and/or
  • impacts on the ability of the child to maintain a meaningful relationship with the person or another party to the proceedings.

For guidance notes, documentary requirements and examples for the above criteria, please refer to the notes linked to each of the definitions.

For the purposes of this definition, a person can only rely on a vulnerability listed at part B of the definition where it:

  • prevents them from running their own case in court without legal representation, or
  • impacts on the child’s relationship with the person or another party.

Required section 60I certificate

Where the person is the applicant in a matter, ie they are seeking to initiate legal proceedings, they must either have an FDR certificate issued under section 60I(8) of the Family Law Act 1975 (Cth), or meet the urgent matter criteria, to be eligible for litigation funding.

For respondents to litigation, it is not necessary to have a ‘required section 60I certificate’ or to meet the urgent matter definition.

For the purposes of determining eligibility under the VLA guidelines, only section 60I certificates which come within this definition of ‘required section 60I certificate’ are sufficient to excuse a person from attempting FDR. While a section 60I certificate issued by another FDR service, such as a Family Relationship Centre, satisfies the court’s requirements to initiate proceedings, they will not necessarily satisfy VLA requirements. The following outlines what constitutes a ‘required section 60I certificate’.

Certificate issued because the other party has refused to participate

Such certificate is only acceptable from the VLA FDRS service.

Refusal of family dispute resolution though another FDR lawyer does not necessarily lead to refusal to participate in VLA FDRS. A party’s refusal to participate may have been due to issues of domestic violence or due to the other party not having a lawyer at that stage. Both issues can be addressed, or may not be a concern in mediations proceeding through VLA FDRS. For more information, see Important information about FDRS.

Assistance for litigation proceedings will not be granted to the party who refused to participate. VLA will only allow a VLA FDRS grant in such circumstances.

Certificate issued that FDR not appropriate

Such a certificate is only acceptable from the VLA FDRS service.

Where another FDR service may deem a matter to be inappropriate for FDR, it may still be appropriate to proceed at VLA FDRS. Our FDRS has a far greater range of options available to facilitate mediation while ensuring the safety of all parties involved. For more information, see Important information about FDRS.

Genuine effort made by all parties to resolve the issues

Such a certificate is acceptable from any FDR service, including FDRS.

All parties must have attended mediation, engaged in negotiations and made a genuine effort to resolve the dispute.

No genuine effort made by a party to resolve the issues

Such a certificate is acceptable from any FDR service, including FDRS.

Assistance for litigation proceedings will not be granted to the party who refused to make the genuine effort.

Certificate issued after unsuccessful mediation

Such a certificate is acceptable from any FDR service.

Both parties must have participated in a FDR conference and had access to legal advice before or during the conference.

The table below summarises which authority (VLA FDRS or any other FDR service) needs to have issued the section 60I certificate for it to be acceptable for purposes of a litigation grant:

Table 2 – Required section 60I certificates

Section 60I Basis of the certificate Acceptable for the purposes of a litigation grant if certificate issued by
(a) Did not attend FDR but failure to attend was due to the other party’s refusal or failure to attend VLA FDRS only
(aa) Did not attend FDR because it would not be appropriate to conduct the FDR VLA FDRS only
(b) Attended and made a genuine effort to resolve the issues VLA FDRS or any FDR service
(c) Attended FDR but a party did not make a genuine effort to resolve issues

VLA FDRS or any FDR service.

Assistance for litigation will not be granted to the party who refused to make the genuine effort.

(d) Began attending FDR but it would not be appropriate to continue the FDR VLAnFDRS or any FDR service

Significant change in circumstances​

VLA will only provide assistance to a person to vary or discharge orders where there has been a ‘significant change in circumstances.’

A 'significant change in circumstances' is a change that, if it had occurred prior to the making of the existing orders or parenting plan, would have resulted in significantly different orders or parenting plan being made.

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

In child or spousal maintenance matters, a significant change in the financial circumstances is required, such as becoming unemployed since the orders were made, increased medical expenses for a disabled child, or a change in a tertiary course undertaken by a child.

VLA considers to be significant change in circumstances – Example A

The mental or physical health of a party has deteriorated to the extent that it affects the child’s safety or welfare.

A party has spent no time with a child (when they could have) for so long that the child no longer has a relationship with that party.

A party has re-partnered and the new partner is alleged to be a risk to the safety or welfare of the child.

A child is now old enough to express an opinion about the current parenting orders and the child’s views that the orders are unsuitable are obvious from extreme behaviours such as repeated running away or self-harm.

The child has not been living with the party named in the ‘live with’ paragraphs of the parenting orders or parenting plan for a significant period.

There has arisen a likelihood of violence, or physical or mental harm to the applicant or the child.

A child has been, or is at risk of being, removed from the party that they live with pursuant to current orders or a parenting plan.

A child has been, or is at risk of being, removed from the jurisdiction of the court contrary to current orders or a parenting plan.

The party the child lives with needs to move permanently overseas, interstate or elsewhere with the child, and consent is unreasonably withheld by another person.

In spousal maintenance matters, considerations listed in section 83 of the Family Law Act 1975 (Cth)

VLA does not consider to be a significant change in circumstances – Example A

The mere passing of time since the original orders were made.

One party has re-partnered but the new partner poses no risk to the safety and welfare of the child.

One party is now employed and using child care services.

A child is now old enough to express and opinion about the current parenting orders but this is not expressed by any extreme behaviours.

A required section 60I certificate must have been issued or the matter must meet urgent matter to initiate or respond to orders to discharge or vary.

Significant to the care, welfare and development of the child​

A party who is not a parent may be any person who is not a biological parent. It is not necessary that the person be a blood relative.

For a non-parent to qualify for assistance, in addition to the requirements set out in the relevant guideline, they must be significant to the care, welfare and development of the child and/or it must be in the child’s best interests for the person to be granted legal assistance in relation to the dispute.

VLA considers that any adult who has primary care of the child, or who spends substantial time with the child is significant to the care, welfare and development of the child and has standing to participate in court proceedings. A grandparent is an example of a person who may be considered significant to the care, welfare or development of a child.

Substantial contravention​

The substantial contravention requirement ensures that grants of assistance for contravention and enforcement action meet the Commonwealth merit test.

A substantial contravention of a parenting order will usually relate to ‘live with’ or ‘spend time with’ conditions or orders. A contravention of conditions that are ancillary to ‘live with’ or ‘spend time with’ conditions are less likely to meet the definition of ‘substantial contravention.’

Contravention or enforcement proceedings should be instituted without undue delay following the last breach.

Assistance may be granted for contravention of interim orders as well as for those occurring after final orders have been made.

Contraventions that are considered substantial – Example A

The party the child lives with has failed to provide the child for ‘time with’ the other party on more than one occasion or has failed to return the child on the agreed day on more than one occasion

Contraventions that are not considered substantial – Example A

A party is late for changeover, fails to advise the other party of an injury suffered by the child or denigrates another party in front of the child.

Urgent matter

Where a matter is characterised as an urgent matter, the person seeking assistance is not required to attend FDRS to try and resolve the dispute prior to making an application to the court.

Meeting the definition of urgent matter does not remove the need for the person seeking assistance to satisfy other criteria set out in the relevant guideline eg either priority litigation client or criterion C of Guideline 1.3.

An urgent matter is one where one or more of the following criteria is met:

  1. a child has been removed, or has not been returned, and a court order is required for the return of the child.

This criterion must be met under Guideline 2.1 where assistance is sought to initiate recovery order proceedings.

Satisfying point 1 of the definition of ‘urgent matter'

To satisfy point 1 of the definition of urgent matter, the person must have made attempts to have the child returned, or to locate the child, prior to seeking assistance to initiate proceedings. The lawyer must also ensure that the matter can properly be characterised as urgent. One indication of urgency is the length of time between the removal of the child, or the failure to return the child and the application for assistance. Depending on other relevant circumstances, a delay of one week or more to apply for assistance where there is no good reason for the delay, suggests that a matter is not urgent.

Other things to keep in mind when determining urgency in recovery matters include:

  • if there are existing orders, are the orders clear or is it possible the orders have been misunderstood by either party?
  • if the other party has not responded to your client’s calls, is there a possible explanation for this?
  • is there a history of one party returning the child to the other party after the agreed time?

Where a matter cannot properly be characterised as urgent under this guideline, assistance may be available to apply for, vary, discharge or enforce parenting orders.

It is not necessary in establishing that the matter is urgent, for there to be facts which indicate there is a risk to the child. Assistance for a recovery order may be provided under Guideline 2.1 even though a child’s safety or welfare is not at risk. In these circumstances, a court may make a recovery order and let it lie on the file for a short period to enable the parent to return the child voluntarily and avoid federal police involvement.

Documentary requir​ements

A file note detailing the current parenting arrangement and when the child was removed or supposed to be returned. The file note must also include details of attempts made to recover or locate the child.

For location/information orders, the file note must detail the necessity for the order, where it is believed the child is and when the client last had contact with the child.

The file note must also include details of attempts made to recover/locate the child.

Satisfying point 2 of the definition of ‘urgent matter'

  1. there is immediate risk of removal of a child from Australia or to a remote geographic region within Australia

The following applies in determining this issue:

  • a remote geographical area is one that would be difficult to access due to required travel/limited transport
  • the child being taken to the remote geographical location must make the current parenting arrangements unworkable
  • the removal of a child interstate is included in this definition as long as the removal makes the parenting arrangement unworkable
  • the risk of removal must be real and not simply a possibility
  • the risk of removal must be immediate
  • the availability of transport will be relevant.

Documentary requirements

A file note detailing the immediate risk of removal of the child including likely location and why it is believed the child will be removed.

The risk of removal must be real and not simply a possibility.

Satisfying point 3 of the definition of ‘urgent matter'

  1. the child’s safety or welfare is at immediate risk and a court order must be obtained to ensure the safety of the child.

A child’s safety or welfare being at risk is relevant for both this definition and for criterion C of Guideline 1.3. However, the satisfaction of the requirement in criterion C of Guideline 1.3 does not automatically mean that this part of the urgent matter definition is also met.

One point of difference is the requirement of ‘immediate risk’ in the urgent matter definition, but not in in criterion C of Guideline 1.3. For the matter to be deemed an urgent matter, the risk to the child must be so immediate that a court order must be obtained to ensure the child’s safety.

Lawyers should not recommend assistance under this definition simply because an intervention order has been sought or made. Where the child is listed as an affected family member on an intervention order and the alleged perpetrator is entitled to arrange time with the child, there may not be an immediate risk to the child just because time with is to be negotiated.

There may be an immediate risk to the safety of the child where, for example, the party who spends time with the child has re-partnered and is living with a convicted child sex offender. It may be necessary to obtain urgent court orders to ensure that the new partner is not present while the child spends time with that party.

Documentary requirements

A detailed file note outlining the circumstances which indicate the child’s safety is at an immediate risk of harm, the reasons a court order is required in the family law jurisdiction and how the order will ensure the safety of the child.

Any other available documentary evidence such as intervention orders, police reports, hospital reports, etc.

Satisfying point 4 of the definition of ‘urgent matter'

  1. the safety of the person seeking assistance is at immediate risk and a court order must be obtained to ensure their safety.

This part of the definition is not limited to situations where an IVO is required to ensure the safety of the applicant. It covers situations where even interim parenting orders could de-escalate the risk to the person seeking assistance, and situations where there is an immediate risk to the applicant’s safety irrespective of whether there is an IVO in place. Lawyers should not recommend assistance under this criterion where an intervention order is the most appropriate way to ensure the safety of the applicant.

Assistance should only be recommended where orders in the family law jurisdiction are required to ensure that safety of the applicant and/or to de-escalate the risk.

If this criterion is met, the person seeking assistance must still meet the other criteria set out in the relevant guideline.

Documentary requirements

A detailed file note outlining the circumstances which indicate the applicant’s safety is at an immediate risk of harm, the reasons a court order is required in the family law jurisdiction and how the order will ensure the safety of the applicant.

Any other available documentary evidence such as intervention orders, police reports, hospital reports, etc.

Satisfying point 5 of the definition of ‘urgent matter'

  1. the matter involves current reported allegations, investigations and/or court proceedings relating to the abuse of the child. The Risk Notice filed by the lawyer must set out the allegations that support this.

To satisfy this criterion, allegations must have been reported to the police, a child welfare authority, a medical practitioner or another relevant authority, such as the child’s teacher or a maternal child health nurse. The unreported suspicions of a party are not sufficient.

The allegations, investigations and/or court proceedings must be current (ie they must be contemporaneous with, and relevant to, the proceedings for which assistance is sought).

The mere filing of the Notice of Risk is insufficient to meet this requirement. It is essential that the information in the Notice of Risk substantiates the presence of current reported allegations, investigations and/or court proceedings relating to child abuse.

Lawyers cannot rely on allegations that are not current or not reported when recommending assistance under this criterion.

Matter deemed urgent – Example A

The 10-year old child lives with the mother and spends time with the father on alternate weekends. On the last occasion that the child was with the father he disclosed that the mother was using drugs, spending most of the time in bed and the child was required to feed themselves, prepare themselves for school and get their own way to school. The father reported his concern of serious neglect to DHHS and refuses to return the child to the mother. It would be appropriate to recommend assistance under this criterion under such circumstances as there are reported allegations of child abuse.

Matter not deemed urgent – Example A

There were allegations and investigations into sexual abuse perpetrated by the father against his daughter several years ago by the mother. The mother seeks assistance to initiate proceedings for supervised time only as she believes the child has again been abused by the father. When queried further, the mother advises that she has not reported the allegations and that the child has continued to spend unsupervised, overnight time with the father since the alleged abuse. The lawyer would not be able to recommend assistance under this criterion

Documentary requirem​ents

Evidence of the current reported allegation, investigation or court proceedings relating to abuse of child.

Evidence may include police reports, hospital reports, school reports or reports/letters from DHHS.

The Notice of Risk on the file must set out the allegations of child abuse and confirm where the report was made to.

Satisfying point 6 of the definition of ‘urgent matter'

  1. a state child protection order (including an interim order) is in place in relation to the child and the state Department of Health and Human Services (DHHS) has recommended that the parties obtain family law orders relating to the child when the child protection order lapses

In order to satisfy the requirement of urgent matter under this part of the definition, the DHHS needs to have advised that they intend to withdraw from the matter on the lapse of the existing child protection order and has recommended that the applicant should initiate proceedings in the family law jurisdiction.

Documentary requirements

A letter from DHHS advising of their intention to withdraw from the proceedings and recommending that the client seek parenting orders in the family law jurisdiction.

If DHHS have not provided a letter, the lawyer will need a file note of a telephone conversation with DHHS advising of their intention to withdraw and recommending the client seeks parenting orders in the family law jurisdiction.

Satisfying point 7 of the definition of ‘urgent matter'

  1. there are other exceptional circumstances that require urgent legal assistance.’

Exceptional circumstances are circumstances not covered in points 1-6, above, and that urgent court orders are required for the best interest of the child.

Lawyers should note that ‘exceptional circumstances’ has a high threshold: That any delay in legal assistance would have extremely serious consequences.

Lawyers are encouraged to seek discretion if they rely on ‘exceptional circumstances’ given the high threshold.

Exceptional circumstances – Example A

The father currently spends one weekend a month with his ten-year old son. This parenting arrangement was made with the mother several years ago based on the distance between the parties. The father has recently been diagnosed with a terminal illness and is likely to live for only a few months. The father has requested additional time with his son based on his illness, and he is now living closer to the mother while he is cared for by the paternal grandparents. The mother has refused additional time as she believes it will be distressing for the child. The lawyer may be able to recommend assistance for the father to initiate proceedings under this criterion based on the exceptional circumstances.

Documentary requirements

A file note clearly setting out the details of what the exceptional circumstances are.