Notes on Guideline 9.3 – Urgent litigation in family law property disputes

Notes on Guideline 9.3 – Urgent litigation in family law property disputes

Note: The following information provides guidance on how to interpret and apply Guideline 9.3 and should be read in conjunction with that guideline and Guideline 9. Where there is any inconsistency between the following information and the guidelines, the guidelines will prevail.

Victoria Legal Aid (VLA) may make a limited grant of legal assistance to a person for litigation to apply for an urgent family law property application to preserve the property pool or obtain necessary financial disclosure, where the following are met:

Eligibility criteria

Assistance may be available under this guideline where all of 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:

Criterion A

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 B

Without an urgent court order the person’s claim to the net asset pool will be significantly and irretrievably dissipated. For example, where there are regular daily withdrawals of money in a bank account to show a pattern of dissipating the funds, or the imminent sale of a property.

Criterion C

The person seeking a grant of assistance is more likely than not to succeed in their application to the court.

Once the urgent issue in dispute is resolved, the person must attempt to resolve the dispute by attending VLA’s Family Dispute Resolution Service.

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 ‘urgent litigation in property disputes’.

Fees and billing

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 9.3 is met
  • an estimate of the parties’ assets and liabilities (including superannuation), with documentary evidence to support the estimate
  • documentary evidence of the applicant’s equitable interest
  • the case outline.

Lawyers submitting an application must ensure that evidence supporting the application is kept on the file.

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.