Notes on Guideline 3.1 – litigation in matters involving international child abduction

Notes on Guideline 3.1 – litigation in matters involving international child abduction

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 3.1 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.

The following information provides general guidance on litigation grants in international child abduction matters. Additional information is available on:

(a) Elig​ibility criteria

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

Criterion A

Assistance under this criterion is available where the child is in Australia without the permission of a parent or guardian or the authorisation of a court. This includes situations where a parent, guardian or the court initially consents to, or authorises the child travelling to Australia, but the child is wrongfully kept in Australia.

Assistance is limited to:

  • defending an application to an Australian court made under the Convention for the child to be removed from Australia and returned to a country which is a member of the Convention
    or
  • defending an application made to an Australian court under the Convention for a person to spend time with the child while they are in Australia
    or
  • making an application to a court in a country with which Australia has a bilateral agreement on international parental child abduction ie Egypt or Lebanon, in relation to the child.

Assistance is not available to defend any other applications to a court relating to the child under the Convention.

Criterion B

Assistance under this criterion is available where the child has been wrongfully removed from Australia (ie without the permission of a parent or guardian or the authorisation of a court). This includes situations where a parent, guardian or the court initially consents to or authorises the child to travel to another country, but the child is wrongfully kept in that country.

Assistance is limited to seeking a declaration that the child has been wrongfully removed from Australia to a Convention country, or kept in that country, as proscribed under the Convention.

Criterion C

Refer to the notes linked to the following threshold tests:

(b) Grants assessment process

Applications for a grant under this guideline can be lodged via ATLAS using the ‘ – VLA assessed – FDRS & stage 2’, but they are assessed by us. The lawyer should make the following selections:

  • under ‘court hearings’, select ‘yes’ and advise of the appropriate court.
  • under ‘professional costs’, select the required funding under the appropriate court.
  • in the matter type, select ‘The Hague Convention App’.

VLA Assessed templates require that the lawyer 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.

(c) Documentary requirements

Lawyers submitting an application under this guideline must ensure that evidence supporting the application is uploaded to ATLAS with the application. This includes:

  • details of how the matter meets each of the three thresholds tests
  • how the matter meets either criterion A or criterion B of the guideline, as set out in regulation 16 of the Family Law (Child Abduction Convention) Regulations 1986 (the Regulations)
  • In an application under criterion B, evidence that the person seeking assistance has ‘rights of custody’ under Australian law in relation to the child (as set out in the Regulations), and was exercising those rights immediately before the child was removed from Australia.

The file should also contain all other relevant notes, supporting evidence and documents.

Lawyers are also encouraged to complete a family law worksheet.

(d) Fees and billing

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