Guideline 6.3 – litigation in spousal maintenance disputes

Guideline

Victoria Legal Aid (VLA) may make a grant of assistance for litigation under the Family Law Act 1975 (Cth) in disputes about spousal maintenance to apply or respond to an application for:

• spousal maintenance

or

• discharge or vary a spousal maintenance order

or

• arrears of spousal maintenance

or

• enforcement of a spousal maintenance order

where

1. the following threshold tests are met:

• forum test
• Commonwealth merits test
• means test
• contravention test.

Other mandatory requirements

As well as the requirements set out in Guideline 6.3, additional criteria apply in the following circumstances:

Discharge or vary

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

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

Where assistance is sought to discharge or vary a spousal maintenance order, unless the matter is urgent, the lawyer should first consider whether a grant for family dispute resolution should be made.

Enforcement of orders

Where the person is seeking assistance for enforcement of existing orders, in addition to the above criteria, the person must be alleging that there has been a substantial contravention of the order.

The following applies to grants of assistance for enforcement proceedings:

• the request for legal assistance should be made without unreasonable delay after the orders have been contravened
• the person requesting assistance for enforcement proceedings must seek a costs order against the other party from the court. For more information, refer to costs recovery
• VLA treat grants of assistance for enforcement as a new matter for the purposes of family law cost management. This means that VLA will not include the amount of the grant when calculating the cost ceiling for the substantive matter.