Notes on Guideline 9.2 – Litigation in family law property disputes

Notes on Guideline 9.2 – Litigation in family law property disputes

Note: The following information provides guidance on how to interpret and apply Guideline 9.2 and should be read in conjunction with that guideline and Guideline 9 in the Handbook. Where there is any inconsistency between the following information and the guidelines, the guidelines will prevail.

Eligibility criteria

Assistance may be available under this guideline where the following criteria are met:

Mandatory requirements

Refer to notes on Guideline 9 the mandatory requirements set out in Guideline 9 are met and all of the following criteria are met:

Asset pool

Combined net asset pool must be $500,000 or less, not including superannuation, or the person applying for assistance’s estimated total net claim is $250,000 or less. For an example refer to notes on Guideline 9.1.

Assistance may also be available in a property matter that relates to a purely negative asset pool, ie debt alone, as well as a combination of debt and assets.

Assistance may also be provided where the property pool is superannuation only.

Criterion A

Be more likely than not to succeed in their application or response to the court.

Criterion B

Have attempted to resolve the dispute by attending Victoria Legal Aid's (VLA’s) Family Dispute Resolution Service (FDRS), unless the matter is assessed by FDRS as unsuitable or unable to proceed. FDRS will provide a letter that must be kept on the file and provided to VLA with any requests for assistance for property litigation showing the attempt to resolve the dispute.

Criterion C

Responding to a family law property application.

A litigation grant is available without an attempt to resolve the dispute by attending VLA’s FDRS in circumstances where there is a contested threshold factual dispute that needs to be determined by the court, or the party is seeking an order pursuant to Sections 44(4) or s. 44(6) for leave to file out of time. For example, if one party disputes that the relationship meets the definition of de facto or if the time limits for applying to the court for property settlement have elapsed.

Once such threshold issues are resolved, an attempt must be made to settle the matter at VLA’s FDRS.

Grants assessment process

An application for a grant of assistance under this guideline must be lodged via ATLAS using the ‘VLA ASSESSED – FAMILY LAW PROPERTY PILOT’ template either by way of a ‘new application’ or an ‘extension’. The lawyer should make the following selections:

  • under ‘court hearings’, select ‘yes’ and advise of the appropriate court
  • under the professional costs screen, select the required funding under the appropriate court.

Fees and billing

The initiating litigation grant of assistance in the federal family courts consists primarily of the initial preparation and appearance and two subsequent hearings.

Where assistance is granted for both parenting and property matters for litigation, only one appearance fee is payable, and must be claimed against the grant of assistance for the parenting dispute matter. This includes:

  • appearance fees
  • counsel fees
  • fees for taking judgement
  • the distance allowance (if applicable) fee.

A disbursement for a Form 6 Superannuation Form for Valuation is also available, where applicable. The grant allows for service fees, conduct money and filing fees up to a set amount. If further funding is required, a disbursement extension must be submitted. Filing fees cannot be claimed where the client is entitled to an exemption of those fees. The grant allows a set amount for freedom of information (FOI) requests, title search fees and title lodgment fees.

Documentary requirements

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

  • how Guideline 9.2 is met
  • to the extent possible, an estimate of the parties’ assets and liabilities (including superannuation), with documentary evidence to support the estimate. In matters where there are allegations of financial abuse, the documented instructions from the client and the lawyer’s assessment will be sufficient
  • documentary evidence of the applicant’s equitable interest
  • documentary evidence of attempts to resolve at VLA’s FDRS
  • the case outline.

Lawyers submitting an application must ensure that evidence supporting the application is kept on the file and a copy provided to VLA with any requests for assistance.

Lawyers are also encouraged to complete a Family law worksheet and a Proof of means worksheet for their file, available on the Invoice, forms and worksheets page.

Ongoing assessment that client meets the guidelines

The lawyer must inform VLA Assignments by submitting correspondence if, at any point during the life of the grant, they are no longer satisfied that the client meets the guideline. For example, if the lawyer discovers assets that means the client is no long eligible (assets over $500,000 excluding superannuation), or where the parties are not eligible for a grant of aid for parenting and a major parenting dispute arises.