Introduction to state family guidelines

Introduction to state family guidelines

Notes on state family law guidelines

These notes provide guidance for lawyers submitting applications for Victoria Legal Aid (VLA) funded legal assistance in child protection matters. They should be read in conjunction with:

Any state family guideline matter that is not the subject of commentary in the notes has been deemed sufficiently clear not to require commentary.

The notes set out the following:

  • definitions of key terms used in the state family guidelines
  • guidance on what documentation needs to be included in lawyer files to support a grant of assistance under the state family guidelines
  • in respect of each state family guideline:
    • guidance on the scope and/or application of the guideline
    • other applicable eligibility criteria – relating to the means test and the State reasonableness test
    • the grants assessment process to be followed for the guideline, including where an application will be assessed by VLA and when an application can be lodged as an extension to an existing grant of assistance
    • documentary requirements specific to the guideline.

Together with guidance on applying for specific extensions to a broadband grant:

  • notes on child protection applications under special circumstances
  • guidance on fees and other costs payable in respect of work performed for applicants granted funding under the state family guidelines.

Key definitions

Unless the context requires otherwise, in the notes:

  • Terms defined in the Children, Youth and Families Act 2005 (Vic) (the Act) have the same meaning in the notes including (without limitation) case plan, child, court, disposition report, parent, protection application and protection order.
  • broadband grant – the fees available to be claimed following a grant of legal assistance under guideline 1, guideline 2.1 or guideline 5 without applying for an extension, as discussed in detail in notes on fees and other costs payable.
  • DHHS – the Victorian Department of Health and Human Services.
  • extraordinary circumstances – has the meaning given in notes on guideline 2.
  • interim stage – the period between a protection application being made to the court and a final order being made by the court.
  • legislated timeframe – is defined in the state family guidelines as follows: as defined by the Act, ‘which provides that a family reunification order can be made for a period with the effect of a child being in court-ordered out-of-home care for up to 12 months. The order can only be extended where there is compelling evidence that reunification will occur within the extension period, and provided the extension will not have the effect of the child being in court-ordered out-of-home-care (COOOHC) for more than 24 months (see Act sections 287A and 294A(1)). It's important to note:
    • the legislated timeframe is measured from the last time the child was at home without any court order in place (with orders before this time not taken into account). Completing the Cumulative time worksheets is recommended.
    • when calculating time already in COOOHC and when tracking time in COOOHC.
    • from this starting point, the total cumulative time a child has been in COOOHC needs to be deducted from the upper limit of 24 months of COOOHC. For example, if a child has been in COOOHC for a total cumulative period of 14 months, then the remaining applicable legislated timeframe is 10 months.
    • where the total cumulative time in COOOHC is less than 12 months then, for the purpose of applying for legal aid assistance, in circumstances where there are reasonable prospects of reunification, it should be assessed that there is the required ‘compelling evidence’ for an extension and the 24-month upper limit applies.
  • means test – means the means test as described in VLA Handbook chapter 12. Further guidance on required documentary proof of income and assets is set out in Section 3 of these 'Simplified grants process – Notes on VLA guidelines'. Note that VLA does not apply the means test to a child or any spouse or de facto partner of the child applying for a grant of assistance under the state family guidelines.
  • opposed – means actively contested.
  • question of placement – has the meaning given in notes on guideline 2.
  • reasonable prospects – means that a prudent and experienced lawyer would consider it ‘more likely than not’ in all the circumstances that satisfaction of the relevant criteria under the guideline (eg of the child being placed in the parent’s care, of a case plan being changed, of reunification within the legislated time frame, that a change in placement was not in the best interests of the child, etc) can be successfully argued. The prospect of success must be real and not fanciful, having regard to the evidence and circumstances of the case. This requires more than an arguable case.
  • State reasonableness test – means the State reasonableness test as described in VLA Handbook chapter 14 (and is referred to as 'merit outcome' in ATLAS). The lawyer must consider:
    • the nature and extent of any benefit that may be gained by the applicant (or the public or any section of the public) from providing legal assistance – as measured against the likely cost of the case, recognising that it is public funds being spent
    • any detriment which the applicant (or the public or any section of the public) might suffer if a grant of assistance is refused, and
    • whether the proceeding is likely to terminate in a manner favourable to the applicant.

The lawyer considers this to assess whether the application satisfies the cost/benefit criteria and is meritorious. This assessment must be based on the information available at the time and will require ongoing assessment as a matter progresses.

Documentary requirements

General principles

The VLA Practice Standards and Measures for VLA Practice Standards set out standards and measures that include, among other things, documentary and file management requirements as well as standards that apply when working with children on VLA-funded matters.

The following guidance on documentary requirements is supplementary to these standards and measures and is specific to VLA-funded child protection matters.

A lawyer’s file for each matter funded under the state family guidelines needs to include:

  • clear notes of all recommendations made to VLA and the reasons for them, including the lawyer’s assessment of how the matter meets the relevant state family guideline and State reasonableness test
  • evidence in support of all recommendations, including statements or documentation relevant to forming an opinion on the cost/benefits and merits of a matter
  • relevant proof of means (except where the client is a child or the client is in custody)
  • copies of any protection, breach, variation, extension or irreconcilable differences applications
  • copies of all relevant reports, such as (without limitation):
    • court clinic reports
    • DHHS reports (eg current DHHS disposition report, addendums and case plan)
    • medical reports from treating doctors
    • reports of third party service providers (eg PASDS, QEC, behavioural change)
    • confirmation on service wait list letters
    • psychiatric risk assessment reports.
  • an indication of the orders sought by each of the parties
  • copies of any briefs to counsel and documents submitted to court
  • records of all conference, court or VCAT attendances, including names of adjudicators, counsel and parties present, an outline of negotiation or submissions made and duration of the attendance
  • copies of any court orders, or directions or notations made by the court
  • evidence that the lawyer explained the nature of the grant of legal assistance and kept the client informed of their rights and obligations in relation to the grant of assistance
  • clear notes of all client instructions, with instructions to be obtained at each stage of a matter
  • documented forensic and legal analysis of the matter
  • clear notes of all advice to the client, with all communication with the client to be appropriate to the client’s age, maturity, education, literacy, past experiences and cultural and social circumstances.

For further measures applicable to working with children, see section 5 of the Measures for VLA Practice Standards.

Also see the family law practice resources and materials on assessing capacity to give instructions (adults and children) and on taking instructions from very young, traumatised and/or intellectually disabled children.

  • copies of all correspondence
  • file notes of all attendances and other documentation so that the file accurately reflects the work the lawyer does on the matter
  • any conferencing exchange documents
  • clear documentation of all outcomes of work performed
  • records of disbursements
  • at the conclusion of a matter, a final report to the client within five business days confirming the outcome and any consequent rights and obligations.

Lawyers are also encouraged to complete the relevant State family matter worksheet and Proof of means worksheet.

Note:

  • Where a statement or other piece of evidence is determinative of a particular issue, it must be easily identifiable to enable VLA compliance checks to be conducted in an effective manner.
  • Wherever a lawyer submits a funding application that has a VLA assessed issue, the lawyer will need to provide sufficient supporting information to enable VLA to make the relevant assessment.

Timing

Lawyers are required to:

  • apply for a grant of legal assistance, or an extension of assistance, before undertaking any work or engaging third party providers (such as counsel)
  • ensure that all relevant documents that are available are on file prior to submitting an application via the ATLAS simplified grants process
  • avoid retrospective grant applications. Retrospective applications outside 14 days will not be approved unless there are exceptional circumstances
  • immediately notify VLA, via the ATLAS simplified grants process ‘submit correspondence’ function, of anything that affects a client’s entitlement to legal assistance (including circumstances that impact the merit of a matter) or obligation to pay a contribution to VLA
  • submit a final account to VLA via ATLAS, and complete the ATLAS ‘file outcome’ screen, within 30 days of the matter being legally finalised or the grant of legal assistance being terminated.

Specific documents

Examples of file notes and other documents relevant to specific guidelines and/or claiming specific fees are discussed in the relevant sections of these notes.