Notes on Guideline 2 – parent or other adult involved in a Children's Court (Family Division) case

Notes on Guideline 2 – parent or other adult involved in a Children's Court (Family Division) case

Guideline 2.1 – parent, guardian or third party

(a) Guideline guidance notes

For Victoria Legal Aid (VLA) to grant funding under guideline 2.1, the applicant must either be:

  • a parent involved in a Children’s Court (Family Division) case as described in guideline 2.1, or
  • a third party to a Children’s Court (Family Division) proceeding where VLA is satisfied that the circumstances of the case are ‘exceptional’.

Parent in protection application matters

In respect of parents over 18 years in protection application matters, to meet the guideline criteria the parent must:

  • have reasonable prospects of the child being placed in their care, and
  • not only be seeking access and/or changes to particular conditions in orders. This may be satisfied where, for instance, the parent has a reasonable basis to oppose the protection application on at least one s. 162 ground and the other eligibility criteria are satisfied.

Example – A protection application by notice is issued based on grounds (d) and (e), recommending a family preservation order with the child residing with the mother. The mother opposes the proving of the application, denying protective concerns and, in particular, stating the first she heard about allegations of sexual abuse was when she read the Department of Health and Human Services (DHHS) report.

The mother does not want further involvement from DHHS, stating she has acted protectively in getting appropriate supports. The mother wants to retain care of the child. The mother has considerable concerns regarding a number of conditions on the proposed family preservation order, for example, her daughter being required to attend mental health services. Her daughter is already accessing appropriate services facilitated by her mother. There is merit in the mother opposing proof on at least one ground.

This would come within the guidelines because the mother is not only seeking to oppose particular conditions. She is opposing proof of at least one ground. If mother was not seeking to oppose any grounds, then she would only be challenging some conditions.

Parent in other matters

Where a parent is over 18 years, the other criteria of guideline 2.1 apply either:

  • from the time when DHHS applies for a care by Secretary order, long-term care order or permanent care order (if applicable), or
  • in circumstances where a final order has been made a subsequent DHHS application is made to the court (eg to vary or extend the order).

Note – VLA funding to intitate, or respond to, an application to revoke a family reunification order is covered by Guideline 5.

Third party applicants

Third party means a person who is not a parent but the person is joined by the court as a party to the proceeding.

Where there is a third party applicant:

  • in protection application matters – the other guideline 2.1 criteria do not need to be satisfied
  • in matters other than protection application matters – one of the other guideline 2.1 criteria needs to be satisfied.

An example of ‘exceptional’ circumstances in this context is the third party has a significant relationship with the child (such as, but not limited to, a grandparent, aunt, uncle or adult sibling), they have had significant involvement in the child’s life (such as through informally caring for the child for extended periods of time) and the third party seeks to care for the child in circumstances where DHHS oppose this. Generally, a carer appointed by DHHS will not satisfy the exceptional circumstances eligibility criteria.

(b) Other eligibility criteria

In addition to the guideline eligibility criteria, the VLA means test and the State reasonableness test must also be met.

A lawyer, particularly early in the matter, may not be well placed to assess whether the State reasonableness test can be satisfied. This assessment must be based on the information available at the time and will require ongoing assessment as the matter progresses.

Note – There are additional eligibility criteria for IAO contested hearings as discussed in guideline 2.3 below.

(c) Grants assessment process

Applications for a broadband grant of legal assistance under guideline 2.1 can be lodged via the ATLAS simplified grants ‘new application’ template (under ‘Costs & disbursements’ select the ‘Initial Lump Sum Fee’ option).

If the applicant is a third party, then satisfaction of guideline 2.1 will be VLA assessed. Information to be included in the grant application is discussed in Documentary requirements.

(d) Documentary requirements

  • The lawyer’s file should include clear notes (in a worksheet or separate file note) of the basis on which guideline 2.1, and the State reasonableness test, are met. Where it is a protection application and the parent is over 18 years, this needs to include an explanation of the basis on which there are ‘reasonable prospects of the child being placed in their care’ and explain how the applicant is seeking more than access and/or condition changes
  • All other relevant notes, supporting evidence and documents as identified in the documentary requirements section.

Lawyers are also encouraged to complete a State family worksheet for parent and third party applicants.

If the applicant is a third party, the ATLAS application will also need to:

  • attach a copy of the order joining the applicant as a third party
  • clearly detail the exceptional circumstances – including a description of the relationship of the third party with the child, the extent and nature of involvement they have had in the child’s life and details of DHHS’s opposition to the third party being the child’s carer.

Interim stage extensions (other than contested hearings)

(a) IAO extensions – introduction

The extent of legal assistance available under a broadband grant under guideline 2.1 is discussed in Fees and other Costs payable in State family matters. It includes fees for, among other things, four IAO appearances and four adjourned IAOs (but IAO appearances/adjournments where a costs order is made in favour of the client are not counted in this limit).

An application for extensions for additional IAO appearances and adjournments for parent and third party applicants can only be made:

  • in extraordinary circumstances where the broadband grant has been exhausted, or
  • where DHHS brings proceedings for breach of an interim order. A separate extension to appear at interim stage breach proceedings is required even if there are remaining IAO appearances available under the broadband grant.

(b) Extraordinary circumstances

Extraordinary circumstances in relation to a parent or third party applicant are limited circumstances that are so unusual, rare and catastrophic that the usual course of litigation is unnecessarily prolonged, and there is a resulting material detriment to the applicant’s case. They include:

  • the death of another party to the proceedings that materially affects the applicant’s case
  • the death/serious incapacitation of the carer that is materially detrimental to the applicant's case
  • where the case involves multiple children in more than one placement
  • where DHHS proposes out-of-home care and there are reasonable prospects of reunification within the legislated timeframe if the requirements of section 276 of the Act are met.

Example – Parents who have not received adequate assistance as required under s. 276 of the Act, as well as parents who have not had a child in their care but are able, if adequate supports are put in place, to care for the child.

Any circumstance not included in this list must be of equivalent rarity and severity to qualify as ‘extraordinary circumstances’. These circumstances do not include common-place factors that delay litigation and may be detrimental to the case and cause additional appearances. Examples of circumstances that VLA does not consider extraordinary are:

  • DHHS is not ready to proceed, for whatever reason
  • the client has not given instructions, or has failed to attend on the day
  • a magistrate is not available to hear the matter
  • a Children’s Court clinic report is not ready.

Grants assessment process and documentary requirements

Applications for an extension on the basis of extraordinary circumstances can be lodged using the ATLAS ‘extension’ template.

Whether ‘extraordinary circumstances’ exist will be VLA assessed. The lawyer will need to explain the extraordinary circumstances warranting a further appearance and, where relevant, attach supporting documentation. If the application is on the basis of:

  • multiple children in more than one placement – information must be provided with the application identifying the different dates and placements for the different children of the same parent
  • a DHHS failure to comply with s. 276 of the Act – the application will need to specify services sought and explain the basis on which there are reasonable prospects of reunification within the legislated timeframe.

An extraordinary circumstances extension is for one additional IAO appearance.

(c) Interim breach proceedings

For a breach proceeding extension, DHHS must have commenced fresh proceedings for breach of an interim order and one or more separate hearing dates are required to defend the breach.

An application to vary an interim order does not qualify for an extension. However, in rare circumstances where DHHS has made a variation application in direct response to a breach of a condition of an interim accommodation order (such that the variation application is, in effect, a breach application) a breach proceeding extension may be applied for as discussed in Grants assessment process and documentary requirements.

Grants assessment process and documentary requirements

Applications for an extension for breach can be lodged using the ATLAS ‘extension’ template.

A grant for initial breach proceedings comprises fees for two IAO appearances and two adjourned IAOs, recognising that a breach typically will extend and complicate a proceeding.

Any subsequent applications for a breach proceeding extension will be VLA assessed. When applying for the further extension, the lawyer will need to:

  • attach a copy of the DHHS breach application
  • explain the basis and merits of the further extension request and, where relevant, attach supporting documentation (simply attaching the DHHS breach application without explanation is not sufficient), and
  • submit whether, in their view, the matter should continue to be aided if a second or subsequent breach arises.

If a lawyer is applying for a breach proceeding extension where DHHS has made a variation application in circumstances where the lawyer is unsure whether the variation application is, in effect, a breach application, then the lawyer should:

  • in the ‘Practitioner Certification’ ATLAS screen under ‘Guideline Outcome’ – select ‘Not Satisfied Discretion’, and
  • attach a copy of the DHHS variation application.

This is so that VLA may assess the extension application.

Guideline 2.2 – VLA may limit a grant for a final contested hearing

(a) Guideline guidance notes

Where a matter proceeds to a final contested hearing, an extension application is required. Where the hearing will exceed five days, VLA may limit funding assistance to specific issues, specific arguments and/or a specific number of days allowed.

(b) Grants assessment process

An extension application is to be submitted via the ATLAS simplified grant ‘extension’ template. The lawyer will need to apply for:

  • the first five days of hearing – which can be recommended by the lawyer, and
  • if the hearing will exceed five days – the lawyer will also need to apply for additional days. This application will be VLA assessed and the lawyer will be required to lodge with the application:

If it is known, before the final contested hearing, that the hearing will take more than five days, the lawyer should apply for the additional hearing days as early as possible prior to the hearing date. If the final contested hearing unexpectedly exceeds five days, then the lawyer should lodge a further extension application as soon as it becomes apparent that the initial five day grant will not be sufficient.

(c) Documentary requirements

The ATLAS application should attach a completed worksheet for hearing funding exceeding five days and relevant reports (if applicable).

The lawyer’s file should include:

  • documentation confirming the outcome of the final contested hearing
  • all other relevant notes, supporting evidence and documents as identified in the documentary requirements.

Guideline 2.3 – Interim accommodation order contested hearings

(a) Gu​ideline guidance notes

Where a matter proceeds to an IAO contested hearing, an extension grant requires:

Question of placement is defined in guideline 2.3. It includes questions of: where children are to live, with whom children are to live and/or the exclusion of parties from the residence in which children are to live. Some examples include the following:

Question of placement – exclusion from the home

The child has been residing at home with her parents. DHHS has concerns regarding family violence. DHHS are prepared to allow the child to remain at home with the mother on the condition that the father, the alleged perpetrator of the violence, remains out of the home.

This dispute involves a question of placement as the father is essentially seeking to remain in the home and have the child placed with both parents.

Question of placement – placement with extended family

A child has been removed from their Aboriginal parents and placed in foster care with a non-Aboriginal family under an interim accommodation order. The parents acknowledge that, at this point, they are not able to have the child in their care, but are seeking to have the child placed in their care through the course of the proceeding. The parents are seeking assessment of Aboriginal relatives.

This dispute involves a question of placement as the parents are seeking to uphold the principles under the Act of placement within the family wherever possible.

DHHS then assess an aunt of the child. DHHS decide to not place the child with the aunt as they are of the view that the foster carers can provide better care.

This remains a dispute involving a question of placement.

(b) Grants assessment process

An extension application is to be submitted via the ATLAS simplified grants ‘extension’ template. The lawyer will need to apply for:

  • the first five days of hearing – which can be recommended by the lawyer, and
  • if the hearing will exceed five days – the lawyer will also need to apply for additional hearing days – which application will be VLA assessed and the lawyer will be required to lodge with the application:

Note: Where an uplift fee is being claimed for an IAO contest by submissions, this is applied for retrospectively as a non-standard disbursement in Fees and other Costs payable in State family matters.

(c) Documentary requirements

The ATLAS application should attach a completed worksheet for hearing funding exceeding five days and relevant reports (if applicable).

The lawyer’s file should include:

  • clear notes (by updating the State family guideline worksheet or in separate file note) of the basis on which guideline 2.3 is met. For example, identifying the relevant ‘question of placement’ or basis for ‘reasonable prospects’ being met (if applicable)
  • documentation confirming the outcome of the interim contested hearing
  • all other relevant notes, supporting evidence and documents as identified in the documentary requirements.