Notes on fees and other costs payable in State family law matters

Notes on fees and other costs payable in State family law matters

Introduction to fees

VLA Handbook chapter 24 sets out fees and other costs payable for matters funded under the State Family Guidelines in Table A2, together with notes of when additional work can be claimed.

The following notes provide further guidance on fees and costs payable in respect of each State family guideline. When claiming fees, lawyers are required to:

  • only claim the fees available in the broadband grant, or apply for an appropriate extension prior to the next court hearing. Lawyers must not fraction fees on an invoice
  • keep track of fees already claimed, particularly IAO appearance and adjourned IAOs
  • always claim fees and disbursements in a timely manner.

Guideline 1.1, 1.2, 2.1 and 5 – broadband grant

The broadband grant includes fees for preparation, IAO appearances and adjournments, directions hearings and conciliation conferences, together with certain disbursements. The fees are applied for as a new application.

(a) Preparation

The broadband grant includes an initial preparation fee at two rates:

  • in circumstances where funding is granted for an extension of an existing order by consent – the lower fee applies, or
  • in other circumstances – the higher preparation fee applies.

A further preparation fee is payable where a matter settles at a conciliation conference, judicial resolution or final directions hearing.

(b) IAO mentions – IAO appearance fees and adjourned IAO fees

Applicable fee rate – The broadband grant includes fees for four IAO appearances (at a higher fee) and four adjourned IAOs (at a lower fee, equivalent to the direction hearing fee). To claim the higher IAO appearance fee, there must have been substantial negotiation at the IAO mention.

Substantial negotiation – defined as negotiations held between the Victoria Legal Aid (VLA)-funded party’s lawyer and the Department of Health and Human Services (DHHS) in which a substantial matter (or matters) in dispute are resolved by agreement. The substantial matter(s) must directly relate to the welfare of a child the subject of the proceedings or the legal position of the VLA-funded party. Note:

  • Where a ‘substantial matter’ is resolved through one or more parties making concessions reasonably quickly without substantial negotiations, no ‘substantial negotiation’ has taken place
  • Where there has been substantial negotiation and the IAO hearing is adjourned (not at the VLA funded party’s request), the lawyer must file note what occurred to justify payment of the higher IAO appearance fee
  • Time at court alone is not a determinative factor.

The lower adjourned IAO fee is to be claimed where no substantial negotiations have taken place and the hearing is adjourned.

Where counsel is briefed to appear at an IAO hearing, the solicitor should ensure that counsel understands the circumstances in which IAO appearance and adjourned fees are payable. Both fees should be marked on the counsel back sheet.

IAO costs orders – If DHHS seeks an adjournment in circumstances where they have contributed to the need for an adjournment, a costs order must be sought against DHHS.

Where a VLA-funded party is awarded costs at an IAO mention, it will not be included within the limit of four IAO appearances or adjournments (as applicable).

  • For example – Where a lawyer has attended three adjourned IAOs and, on the fourth, applies for and is awarded costs against another party, the fourth adjourned IAO will effectively be cancelled out by the costs award and a further adjourned IAO will be available within the broadband grant.
  • To reinstate IAO – When submitting a payment claim via ATLAS, tick the ‘Costs Indemnified’ box in ATLAS, which will automatically update the ATLAS file to automatically update the ATLAS files to reinstate an additional IAO appearance or adjourned IAO (as applicable)and upload a copy of the Costs Order via ATLAS.

If a VLA-funded party requests an adjournment – VLA does not usually pay for adjournments at the request of a VLA-funded person. VLA will only pay for such an adjournment if there are exceptional circumstances and it is reasonable in all of the circumstances (for example, if something could not have been reasonably foreseen). There must be clear file notes which demonstrate why any adjournment was necessary.

(c) Directions hearings

The broadband grant includes three directions hearings.

As previously noted, if a matter settles at a final direction hearing, then an additional preparation fee can be claimed.

(d) Conciliation conferences

The broadband grant includes:

  • a preparation fee
  • two conciliation conferences – which covers the conference attendance as well as a conference between counsel and the client to prepare for the conference
  • an additional fee where a conciliation conference lasts more than three hours – being an hourly rate that is payable in addition to the attendance fee, up to an additional three hours
  • two post conference mentions
  • an adjourned conference fee (where a conference is adjourned, a post conference mention fee can also be claimed).

(e) Disbursem​ents

The following can be claimed as disbursements without prior VLA approval up to the rates set under the broadband grant:

  • Travel that is more than 40 kilometres from the advocate’s usual place of business (ie return trips in excess of 80 kilometres) – up to a total of 600 kilometres.

Note – Where counsel is briefed for a matter that is within the broadband grant, then counsel can only be paid for travel where the solicitor’s office (not counsel’s office) is more than 40 kilometres away from the hearing or conference.

Counsel may only be paid for travel from their usual place of business, where:

  1. The practitioner is unable to appear due to another client’s matter or leave, and
  2. The practitioner has made enquiries with local practitioners and has ascertained that no one is able to appear.

The practitioner must document on file what attempts they have made to brief locally. The practitioner will need to address factors (i) and (ii) in their application for additional travel fees.

In other cases (including contested hearings, IAO appeals and VCAT hearings), where counsel is briefed, the 40 kilometre requirements is measured from counsel’s usual place of business:

  • Overnight fees – where a proceeding is two or more days, travel is claimed and overnight accommodation is required, for up to five nights
  • Service fees/conduct money/filing fees
  • FOI/title lodging/search fees.

For further information on claiming disbursements, see the disbursements section of VLA Handbook chapter 24.

Contested hearings and other interim stage extensions to broadband

(a) Extensions for interim contested hearing fees

The initial extension grant for IAO contested hearing fees include:

  • a first day IAO contest hearing fee
  • a lower subsequent daily IAO contest hearing fee – up to an additional four days
  • a single adjournment fee (if the hearing is adjourned for more than three months, the first day hearing fee is payable again)
  • an allowance for up to an extra 600 km of travel (subject to Table A2 criteria) and overnight cost claims.

Any extension beyond five hearing days is VLA assessed and requires the lawyer to provide a completed worksheet and copies of relevant reports.

Interim contests by evidence

As IAO contests by evidence are booked with the court some days or weeks in advance, an extension of assistance to appear at such contests must be obtained before counsel is briefed.

The interim contested appearance fee is payable where the case is moved forward as follows:

  • the contest by evidence proceeds, or
  • the contest resolves and final orders on the protection application are made, or
  • the contest resolves (with agreed interim orders pending the final contest) and the matter is booked for the next substantive stage in the proceeding (conference, directions or contest).

The lower interim contested adjourned fee (which is equal to an IAO appearance fee) is payable where the contest:

  • is not reached and is adjourned to a further contest date, or
  • is adjourned to a further contest date for any other reason with no progress in the resolution of the matter.

Note – Where an interim contest extension has been granted, the adjournment fee is not deducted from the four appearances/adjournments in the broadband grant.

Where counsel is briefed, the solicitor should ensure that counsel understands the circumstances in which interim contested appearance and adjourned fees are payable. Both fees should be marked on the counsel back sheet.

Interim contests by submissions

Broadband IAO appearance fee – In most cases, IAO contests by submissions are covered by IAO appearance fees in the broadband grant (and do not require a separate extension). This is because, unlike contests by evidence, contests by submissions arise on short notice either on the first court date after a protection application by emergency care or on a mention date. With some rare exceptions (discussed below), submissions contests are much shorter than evidence contests and are almost invariably conducted by lawyers already at court with other matters.

While the usual practice is for solicitors to appear in submissions contests (attracting the standard IAO appearance fee), VLA is aware that in some cases solicitors choose to brief counsel for a submissions contest. The reasons for this may include:

  • the solicitor is unable to appear in the contest because they have too many other matters at court that day, or
  • the matter is complex or is expected to last longer than usual.

Where counsel is briefed to appear in a submissions contest, the back sheet should be marked with the IAO appearance and adjourned IAO rates (not interim contested fee rates, which require a separate extension).

Uplift fee – In rare cases, IAO contests by submissions may attract an uplift in fees to the equivalent of the interim contested hearing first day fee rate. An uplift in fees may be claimed when a submissions contest:

  • runs more than two hours, or
  • runs outside ordinary court hours.

Where there has been a contest by submissions that attracts a fee uplift, then the fees will need to be applied for via the ATLAS simplified grants ‘extension’ template as follows:

  • request the interim contested hearing first day fee retrospectively within 14 days via the ATLAS simplified grants 'extension' template (under 'Costs & Disbursements' select the Non-Standard Disbursement option).

(b) Extensions for final contested hearing fees

The initial extension grant for final contested hearing fees include:

  • a final contested hearing preparation fee
  • a daily contested hearing fee – up to five days
  • two adjournment fees (if the hearing is adjourned for more than three months, the first day fee is payable again)
  • an allowance for up to an extra 600 km of travel (subject to Table A2 criteria) and overnight cost claims.

Any extension beyond five hearing days is VLA assessed and requires the lawyer to provide a completed worksheet and copies of relevant reports.

If a matter settles at a final contested hearing and the lawyer claims the final contested hearing preparation fee, they cannot also claim the broadband grant settlement preparation fee.

(c) Oth​er interim stage extensions to the broadband grant

Extensions to the broadband grant may also be applied for via the ATLAS simplified grants ‘extension’ template for the following:

  • judicial resolution conferences – lawyers can claim the same fees as the broadband conciliation conference fees (but without the two post-conference mentions – as the conferences are held in court). These fees are claimed as non-standard disbursements
  • judgement appearance fees – lawyers can claim these fees where a judge requires an appearance when delivering a judgment. There are three different fee rates (judgement only, $315), judgement with submissions (IAO fee) or all day judgement with submissions (further contest hearing fee). These fees are claimed as non-standard disbursements
  • additional IAO appearances – where the broadband grant has been exhausted. If a:
    • child applicant – grounds are not limited, but an explanation is required after three extension applications
    • parent or third party applicant – only in extraordinary circumstances, which is VLA assessed.
  • interim breach proceedings – additional IAO appearances and adjournments where DHHS makes an interim breach application, which is VLA assessed after the initial extension request. An extension is required even where the broadband grant for IAO appearances has not been exhausted
  • IAO contest by submissions uplift fee – a non-standard disbursement available in limited circumstances
  • additional conciliation conferences – where the broadband grant for conciliation conferences has been exhausted.

Guideline 3 – Appeal against interim accommodation order fees

  • The fees available to appeal, or respond to an appeal, of an interim accommodation order are summarised in the fees summary list. It includes up to three Supreme Court appeal hearing days.
  • The fees are applied for as an extension to an existing grant of legal assistance, which application will be VLA assessed.

Guideline 4 – Review of case planning decision fees

  • The preparation fee for internal review of a DHHS case planning decision (under guideline 4.1) covers taking instructions, requesting a copy of case planning documents, copies of court documents and preparation of internal review documents (including advice to the client and correspondence to DHHS requesting internal review and case plan changes).
  • The fees available for external review of a DHHS case planning decision (under guideline 4.2) are summarised in the fees summary list. It includes up to five VCAT hearing days. The fees are applied for as a new application or, where a grant of legal assistance has been made under guideline 4.1, as an extension application. The application will be VLA assessed.

Guideline 5 – Application to revoke a protection order - broadband grant

Where a grant is made under guideline 5 for revocation of a protection order, the broadband grant fees apply, together with the applicable broadband extension procedures.

State family matters fees summary list

This listing is an overview of the types of fees that can be claimed in proceedings under the Children, Youth and Families Act 2005. The rates of fees payable are published in Table A2:

Child protection broadband – guidelines 1, 2, 5 – new application

  • Preparation of extension of existing order by consent – note guideline 5
  • Preparation other than of existing order
  • Preparation settles at conference or directions hearing
  • IAO appearance x4 (note 2) – IAO mentions or IAO contests by submissions
  • Adjourned IAO x4 (note 2) – at table A2 directions hearing rate
  • Directions hearing x3
  • Conciliation preparation
  • Conciliation conference x2
  • Conciliation more than three hours x 3 hours
  • Conciliation adjournment – at table A2 directions hearing rate
  • Post-conference mentions x2 – at table A2 directions hearing rate
  • Service fees/conduct money/filing fees
  • Disb FOI/title/lodgings/search fees
  • Travel fee (600 kilometres at $0.73/km)
  • Overnight fee x5

Interim contested hearing (by evidence) – extension application

  • First day of contest (note 3)
  • Subsequent days x4 (note 3)
  • Adjournment (note 3) – at table A2 IAO appearance rate
  • Travel fee (600 kilometres at $0.73/km)
  • Overnight fee

Final contested hearing – extension application

  • Preparation
  • Defended daily fee x5
  • Adjournment x2 – at table A2 IAO appearance rate
  • Travel fee (600 kilometres at $0.73/km)
  • Overnight fee

Other broadband extension applications

  • Additional IAOs – child applicant or, if parent or third party applicant, in extraordinary circumstances (where broadband grant is exhausted – for additional IAO appearance)
  • Additional IAOs – DHHS application for breach of interim order – for additional IAO appearance x2 and adjourned IAO x2
  • IAO contest by submissions uplift fee – limited circumstances
  • Additional conciliation conference – where broadband grant is exhausted
  • Judicial resolution conference
  • Judgment appearance fee

Appeal against IAO – guideline 3 – extension application

  • Preparation
  • Conference with counsel
  • First day appearance
  • Subsequent appearance days x2
  • Mention fee
  • Judgement appearance fee
  • Travel fee (600 kilometres at $0.73/km)
  • Overnight fee

DHHS internal review of case plan – guideline 4.1 – new application

  • Preparation – includes taking instructions, requesting copy of case planning documents, copies of court documents, preparation of internal review documents

VCAT external review of case plan – guideline 4.2 – new application or extension (where guideline 4.1 grant has been made)

  • Preparation
  • First day of hearing
  • Susequent hearing days x4
  • Travel fee (600 kilometres at $0.73/km)
  • Overnight fee.

Notes:

  1. This list includes proceedings where counsel may be briefed. In all cases, the same fee is payable to a solicitor if a solicitor appears. But where counsel is briefed, a solicitor may not also claim for attending the same hearing or conference.
  2. If costs are awarded in favour of a client at an IAO mention – when submitting a payment claim, tick the ‘Costs Indemnified’ box in ATLAS and it will not be included within the limit of four IAO appearances or adjournments (as applicable). If counsel is briefed, mark counsel’s back sheet with IAO appearance and adjournment fees in the alternative, so that counsel can mark the appropriate fee (depending on whether requirements for substantial negotiations have been met) without need for further contact with the instructing solicitor or VLA.
  3. If counsel is briefed, counsel’s back sheet with IAO contests by evidence appearance and adjournment fees is the alternative, so that counsel can mark the appropriate fee without need for further contact with the instructing solicitor or VLA.