Guideline 2 – parent, guardian or other interested person involved in a case in the Family Division of the Children’s Court

Guideline 2.1 – parent, guardian or third party

Victoria Legal Aid (VLA) may provide a grant of legal assistance to a person for proceedings in the Children's Court (Family Division) where:

• the person is a parent as defined in the Children, Youth and Families Act 2005

and

• if the person is a parent by virtue of being the spouse or domestic partner of the mother or father of the child, the person also:
  • is a primary carer of the child, or
  • ordinarily lives with the subject child and the Department of Families, Fairness and Housing (DFFH) seeks an order (including an interim order) to restrict contact or communication between that person and the child, and
  • the conditions restricting communication or contact are different from the conditions sought for the mother or father to whom the person is a spouse or domestic partner

or

• the person is not a parent (as defined in the Act) but the person is:
  • joined as a party to the proceeding, and
  • VLA is satisfied that the circumstances of the case are exceptional.

That person may only obtain a grant of legal assistance where:

• the parent is a child under the age of 18 years; or
• the person is 18 years or older and:

For a protection application:

• the person has reasonable prospects of the child being placed in their care.
• parents who are seeking contact only or who are only seeking particular conditions in orders, will not meet this guideline (unless the parent is a child under the age of 18 years).

For a breach of protection application:

• the person opposes a breach application; and
• DFFH recommend an order or conditions on an order which are substantively different to the order breached, and
• the person seeks an order or conditions on an order with is substantially different to the order recommended by DFFH*.

* Where DFFH has not provided a report at the time the lawyer applies for a grant of assistance, they may assume that DFFH is recommending a substantially different order if DFFH sought an IAO with different placement or substantially different conditions at the first hearing of the breach application. The lawyer will reassess whether the client satisfied the guidelines upon receiving the DFFH report.

For an application for a care by secretary order, long term care or permanent care order:

• the person seeks an outcome which is substantially different to the order recommended by DFFH.

For an irreconcilable differences application:

• the person opposes a finding of irreconcilable differences.

For a variation or extension of protection order application, the person:

• opposes an application to vary or extend an order, and
• has a reasonable prospects of the child being placed in their care, and
• seeks an order different to an order recommended by DFFH (including an interim accommodation order), or
• opposes certain conditions being made, or seek to include other conditions, in an order relating to a substantive issue which will significantly affect their lifestyle or their family's lifestyle.

For a temporary assessment order:

• the person opposes the application.

For a Therapeutic Order or Therapeutic Treatment Placement Order application:

• the person opposes the application.

Information to assist lawyer with the grants application and assessment process and documentary requirements is set out under the relevant guideline in Simplified Grants Process: Notes on the Guidelines.

Guideline 2.2 – interim accommodation order contested hearing

VLA may make a grant of legal assistance for an interim accommodation order contested hearing where:

• the specific issue to be contested at the hearing is who the child is to be placed with or a term or condition of the placement, or
• a parent is seeking a condition that allows the child to spend time with that parent, and that parent has reasonable prospects of that child being placed in their care within the legislated timeframe, or
• the child is younger than two years of age, or
• the child is Aboriginal and/or Torres Strait Islander, is in, or proposed to be placed in, out-of-home care, and the specific issue to be contested at the hearing is about interim contact with a parent or sibling to maintain cultural identity and family connections, or
• the parent is under the age of 18 years old.

A ‘question of placement’ includes:

• where the child/ren are to live
• with whom the child/ren are to live
• the exclusion of parties from the residence in which the child/ren are to live.

Guideline 2.3 - Readiness hearings and judicial resolution conferences

VLA may make a grant of legal assistance for a readiness hearing or a judicial resolution conference - where the person satisfies the relevant criteria in Guideline 2.1

Guideline 2.4 – VLA may limit a grant for a final defended hearing

VLA may only make a grant of legal assistance for a final contested hearing where the parent seeks an outcome that is substantially different to an order recommended by DFFH.

If VLA makes a grant of legal assistance for a final contested hearing, VLA may limit the nature and extent of the assistance to:

• specific issues
• specific arguments
• a specific number of days.