Guideline 1.3 – litigation for adults in parenting disputes

Guideline

Victoria Legal Aid (VLA) may make a grant of assistance to an adult for litigation in a parenting dispute to:

• apply for or respond to an application for a parenting order
• apply for or respond to an application to discharge or vary existing parenting orders
• apply for or respond to an application for contravention or enforcement of parenting orders or for contempt of court

where

1. the following threshold tests are met:

• forum test
• substantial issue in dispute test
• Commonwealth merits test (see also Parenting disputes where the person is in custody)
• means test
• contravention test.

and the person is either

2. a family law priority client

or

3. is involved in a parenting dispute where one (or more) of the following applies:
   1. allegations have been made that indicate there is a risk to the wellbeing and/or safety of the child from being subjected or exposed to abuse, neglect or family violence
      or
   2. the child’s ability to maintain a meaningful relationship with one or both of their parents (or, where the person seeking assistance is not a parent of the child, with that person), will be substantially prejudiced by the proposals or conduct of a party to the dispute
      or
   3. there are allegations that there is or has been a risk of family violence. The person alleged to be the victim, as a family law priority client, and the person who is alleged to be the perpetrator of the family violence are both included in this definition.

and

4. where the person applying for assistance is the person who is making the application to the court, there is evidence kept on the file showing:
   1. that there has been an attempt to resolve the dispute by attending family dispute resolution and that a required section 60I certificate has been issued in relation to the dispute
      or
   2. where a required section 60I certificate has not been issued in relation to the dispute, that it is an urgent matter.

Being issued with a required section 60I certificate doesn't always mean that a grant of assistance to attend the Family Dispute Resolution Service (FDRS) is inappropriate. Even where a section 60I certificate has been issued, the lawyer must consider whether attendance at FDRS is appropriate and could help the parties to resolve the dispute, before applying for a litigation grant. This doesn't apply if the matter is an urgent matter.

Other mandatory requirements

As well as the requirements set out in Guideline 1.3, additional criteria apply in the following circumstances:

Where a person is not a parent of the child

Legal assistance in parenting matters is most commonly granted to one or both of the parents of the child. Where the person is not a parent of the child, VLA must also be satisfied that:

• the person is significant to the care, welfare, and development of the child
  and/or
• it is in the best interests of the child for the person to be granted legal assistance in relation to the dispute.

In determining the best interests of the child, where there are state child protection orders in place or child welfare proceedings on foot, we may grant assistance to a person who is not a parent of the child where the orders or proposed orders are in favour of that person.

Discharge or vary orders

Where the person is applying for assistance to discharge or vary existing parenting orders, there must also have been a significant change in circumstances since the parenting order was made.

If the 'significant change in circumstances' has been caused by the applicant, we will consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the applicant.

Contravention or c ontempt of court

Where the person is applying for assistance for contravention of final or interim parenting orders, or for contempt of court, the allegations must be that there has been a substantial contravention of the orders.

The following applies to grants of assistance for contravention and contempt proceedings:

• In matters involving contempt of court, where the person applying for assistance is alleged to be the person who has contravened the order, the severity of any penalty which may be imposed is relevant in determining whether the request for assistance meets the Commonwealth merits test.
• In matters involving contravention, the request for assistance should be made without unreasonable delay after the orders have been contravened.
• The person applying for assistance must seek a costs order against the other party from the court. If the other party also has a grant of assistance in the matter, this condition does not apply.
• We treat grants of assistance for contravention and contempt of court proceedings as a new matter for the purposes of family law cost management. This means we will not include the amount of the grant when calculating the cost ceiling for the substantive matter.