Notes on Guideline 2.1 – assistance for a recovery order

Notes on Guideline 2.1 – assistance for a recovery order

Note: The following information provides guidance on how to interpret and apply guideline 2.1 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.

Applications for assistance under this guideline can be made where a location or information order or substantive parenting orders are also sought.

Where substantive parenting issues are also sought, the presence of urgency in relation to the parenting issues will determine the appropriate fee pathway. These pathways are set out in Guideline 2.1, discussed below and illustrated in the Recovery order flowchart.

See also notes relating to grants for interim contested hearings.

(a)​ Eligibility criteria

Assistance may be available under this guideline where criterion A, and B, and C or D are met.

Criterion A

Applicants in proceedings

To be eligible for assistance to make an application for a recovery order under Guideline 2.1, point one in the definition of urgent matter needs to be satisfied, ie a child must have been removed from, or not returned to the care of a person who the child lives with or spends time with, and a court order is required for the return of the child.

For information on this criterion, including the documentary requirements, refer to the notes on the definition of urgent matter.

Lawyers recommending assistance to apply for a recovery order should carefully consider whether the matter also meets other points under the urgent matter definition, as the nature of the urgency in a recovery order matter will determine the appropriate fee pathway.

Respondents in proceedings

Where the person seeking assistance is responding to an application for a recovery order, they do not need to satisfy the requirement that it is an urgent matter, however the other eligibility criteria in Guideline 2.1 must be met.

The fee pathways set out in the guideline are illustrated in the Recovery order flowchart.

Recovery matter properly characterised as urgent under point 1 of urgent matter – Example A

A three-year-old child lives with the mother and stays overnight with the father every Wednesday at the paternal grandmother’s home. There are no orders in place, and no history of family violence, or issues relating to safety or welfare of child.

On one occasion, the father fails to return the child at the agreed time, and fails to respond to the mother’s repeated calls and emails. When contacted, the paternal grandmother indicates that the father did not stay overnight with the child at her home. No one responds at the father’s residence. The mother contacts you two days after the child was due to be returned to seek a recovery order.

Recovery matter not properly characterised as urgent under point 1 of urgent matter – Example B

Orders are in place for a 10-year-old child to spend alternate weeks with each parent. There is a history of the mother making the child available to the father several days late.

The mother and the child go interstate on holidays and do not return in time for the child to go to the father’s home. The father contacts the mother and she advises that they have decided to stay a few more days but cannot provide a definite return date. The father seeks a recovery order. Assistance for a contravention application should be recommended instead of a recovery order.

Recovery matter not properly characterised as urgent under point 1 of urgent matter – Example C

The mother is the primary carer of a five-year-old. The father has fortnightly contact. There are no orders in place, and no history of family violence or issues relating to the safety or welfare of child.

The father fails to return child from the contact weekend. In the following three days, the mother requests the father to return the child. He says the child wishes to live with him and allows the mother to talk to the child. The mother becomes unwell with a mild cold and decides to leave the child with the father for a further seven days, before seeking assistance for the return of the child. Assistance should not be recommended for a recovery order.

Evidence to support the claim that the matter is urgent under point one and any of points two to seven of the definition of urgent matter must be retained on the file.

Criterion B

Refer to the notes linked to the following threshold tests:

and to the following supplementary information.

Substantial issue in dispute test

In recovery order matters, the substantial issue in dispute test is deemed to have been met by the person seeking assistance if:

  • they are an applicant in the proceedings and criteria A of Guideline 2.1 is satisfied (ie it is an urgent matter)
    or
  • they are a respondent in the proceedings.

Commonwealth merits test

It is not essential for there to be parenting orders in place, or for the person to also be seeking substantive parenting orders, to apply under this guideline.

When parenting orders are also sought and no current parenting orders are in place, there must be a usual arrangement relating to the care of the child, which the applicant for the order is seeking to restore (ie the status quo). This could be where the person who the child usually lives with is seeking to have the child returned to their care, or where the person who the child usually spends time with is seeking the return of the child to enable them to continue spending time with the child.

When no parenting orders are in place, lawyers should consider the following when assessing the Commonwealth merit test in recovery matters:

  • why the recovery order is sought
  • evidence relating to the child’s usual living and ‘time spent’ arrangements (the status quo)
  • evidence as to urgency and of the length of time since the child was removed, or not returned
  • attempts to seek the return of the child
  • the long-term merit of any substantive (parenting) application.

Criterion C

Refer to the notes linked to the definition priority FDRS client.

Criterion D

Refer to the notes on criterion C of Guideline 1.3.

(b) Other mandatory criteria

Where a party is not a parent of the child

Refer to the notes linked to the definitions of:

Discharge or vary orders

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

(c) Grants assessment process

The following grants are available in matters involving recovery orders:

Guideline 2.1 outlines the circumstances which determine the appropriate grant. The following provides additional guidance.

Stage 2B grant

Where a person qualifies for assistance under this guideline and the matter is deemed urgent solely under point one of the definition of urgent matter, ie the urgency relates only to the need to recover the child) the stage 2B grant is available.

An application for a 2B grant can be lodged via ATLAS using the ‘simplified process – Information/Location/Recovery/Enforcement orders’ template’ or the ‘Simplified process – FDRS & stage 2’ template, making the following selections:

  • in the ‘Family matter – general’ screen under ‘matter type’, select ‘recovery or location/information’
  • under ‘court hearings’, select ‘yes’, and advise which court
  • under ‘stage 2’ in the professional costs screen, select ‘stage 2B recovery’.

At the conclusion of the recovery proceedings, where parenting issues remain and there is no further urgency, the client is required to first attempt family dispute resolution at Victoria Legal Aid's (VLA’s) Family Dispute Resolution Service (FDRS) to resolve the issues (see Notes on Guideline 1.2 for information on the grants assessment process).

It is the lawyer’s responsibility to seek an adjournment of the next hearing to initiate FDRS, regardless of the client’s or the court’s preference to continue with litigation.

Moving from a stage 2B to a 2E or 2C

Where assistance is initially granted for stage 2B and, prior to conclusion of the recovery order proceedings, a dispute remains about substantive parenting orders which can be deemed urgent under any of points two to seven of the definition of urgent matter, the lawyer should:

  • submit correspondence via ATLAS advising VLA of the above and request the stage 2B grant to be closed, and
  • lodge an extension recommending assistance under stage 2E or 2C.

The applicant does not need to obtain a required section 60I certificate prior to seeking further litigation funding.

Wherever possible, we expect applications for recovery orders and for the substantive orders (eg parenting orders) to be filed together. In these circumstances, only one lump sum fee would apply, ie the lump sum fee for the substantive application (stage 2C or 2E). Where it is not possible to file together, the lump sum fee for stage 2B is available in addition to the lump sum fee for the substantive matter (stage 2C or 2E). The practitioner’s file must contain a file note indicating the reasons why the applications were not filed together.

Where an extension under stage 2E is granted, the stage 2E.1 fee (lump sum preparation and appearance fee) will not be available if the lawyer has already claimed the stage 2B.1 fee (lump sum preparation and appearance fee, recovery, information or location order). Only the three subsequent hearing fees will be available in the stage 2E grant.

Stage 2C or 2E grant

Where a person qualifies for assistance under this guideline and the matter is deemed urgent under point one, and under any of points two to seven of the definition of urgent matter, the stage 2C grant or 2E grant, is available. The person seeking assistance will not be required to attempt FDRS but will be granted assistance to litigate.

An application for a stage 2C or 2E grant can be lodged via ATLAS using the ‘simplified process – FDRS and stage 2’ template.

Moving from a 2E or 2C to a 2B

Where assistance is initially granted for stage 2E or 2C, and the lawyer subsequently forms the view that the matter satisfies urgent matter only under point one of the definition of urgent matter, the lawyer should:

  • submit correspondence via ATLAS advising VLA of the above and request the stage 2E or 2C grant to be closed, and
  • lodge an extension recommending assistance under stage 2B.

Snapshot of available professional costs in recovery order proceedings (fee table 4.1)

  • Matter urgent only under point 1 of definition of urgent matter: extension 0, stage 2B
  • Recovery proceedings conclude and remaining parenting issues not urgent under any of points 2-7 of definition of urgent matter: extension 0, stage 2B or extension 1, stage 1B (FDRS)
  • Initially no substantive parenting issues which meet the definition of urgent matter. Parenting issues subsequently deemed urgent: extension 0, stage 2B or extension 1 – stage 2E or 2C
  • Matter urgent under point 1 and any of points 2-7 of definition of urgent matter: extension 0 – stage 2E or 2C

The Recovery order flowchart illustrates the various pathways of a grant under guideline 2.1.

Where a location or information order is sought and a recovery order is not also sought, see the Location or information order flowchart.

(d) Documentary requirements

The lawyer’s file must contain a file note making clear the following:

  • where the client is the applicant in recovery proceedings, how the matter meets point one of the definition of urgent matter
  • how the matter meets each of the thresholds tests
  • how the matter meets:

Where the client is also seeking substantive parenting orders, the lawyer’s file should contain:

  • the required section 60I certificate, or
  • where relevant, details of how the substantive parenting issues meet any of points two to seven of the definition of urgent matter, including where the matter is deemed to become urgent subsequent to being granted assistance.

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 of fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

Additional appearances under 2B grants

In matters involving a recovery order, the stage 2B grant is a broadband grant. Since October 2016, two additional hearing fees in the federal family courts (stage 2B.2 and combined stage 2B.3 and 2B.4) are available in matters involving a recovery order. This means lawyers can claim up to a total of three appearances in the federal family courts. The additional appearance fees are available whether or not an information or location order is also sought in the proceedings.

The change reflects the common practice in metropolitan courts for judicial officers to order section 11F reports prior to the making of a recovery order, thereby necessitating an additional appearance.

The stage 2B.3 fee is only claimable where the court has requested additional preparation to be undertaken prior to the matter returning. It can be claimed where the lawyer prepares for a subsequent appearance in accordance with the court’s direction, regardless of whether the subsequent appearance occurs.

Subsequent appearance fees can be claimed in the following way:

  • the first subsequent hearing fee may be claimed without an extension of assistance. This fee, and the second subsequent hearing fee, is available in the stage 2B proforma invoice.
  • the second subsequent hearing fee in exceptional circumstances. It must be claimed as an extension. Lawyers are required to set out the reasons why the second adjournment was made.

Fees for additional appearances are not available:

  • in matters involving a location or information order where a recovery order is not also sought, or
  • where the recovery issue has been determined and the adjournment relates to the substantive parenting issues. In those circumstances, the matter must be adjourned and the lawyer must seek a stage 2E grant.

Fees available to respondents

Where the applicant in the recovery proceedings seeks substantive parenting orders in addition to recovery (or recovery and information/location orders), a respondent who meets Guideline 2.1 is entitled to the stage 2E broadband grant for the first grant (extension zero).

Where the applicant in the recovery proceedings seeks a recovery order only (or recovery and information/location order only), a respondent who meets Guideline 2.1 is entitled to the stage 2B grant for the first grant (extension zero).

Applications for combined orders

When an application is made to the court for combined orders, for example for interim parenting orders, and a recovery order (and perhaps a location or information order), only the one lump sum fee and subsequent appearance fees outlined above are payable for the combined application.

Costs

Where counsel is briefed under a stage 2B grant, no additional fees are available under this grant. Fees for counsel are to be paid out of the available fees. Separate fees for counsel are only available at stages 2G, 3, 4 or 5.

Where a person qualifies for assistance under Guideline 2.1 and stage 2B funding is recommended, the cost of the matter under the stage 2B grant is treated as a separate matter for the purposes of family law cost management. This means that VLA will not include the amount of the stage 2B grant when calculating the cost ceiling for the substantive matter.