Notes on fees and other costs payable in child protection matters

Introduction to fees

VLA Handbook chapter 24 sets out fees and other costs payable for matters funded under the Child protection 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 child protection 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 interim accommodation order mentions and adjournments
  • 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 (general preparation and, preparation of a case strategy), mentions and adjournments, 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:

  1. A general preparation fee for work performed away from Court, including taking instructions and providing advice and engaging negotiations.
  2. A preparation fee for the development and maintenance of case strategy, except for matters where funding is granted for the extension of an existing order.

(b) Mention and adjournment fees

Applicable fee rate – The broadband grant includes fees for four mentions (at a higher fee) and four adjournments (at a lower fee, payable where a matter is listed for a mention). To claim the higher mention fee, the mention must meet ONE of the following criteria:

  • settled on a final order, or
  • proceeded as submissions contest, or
  • an application for costs was made, or
  • an interim accommodation order contact condition was varied to change supervision requirements or to include or vary a progressive contact schedule or plan, or
  • it is the first hearing of a new interim breach or variation application or an application for a new IAO, or
  • issues in dispute are narrowed or resolved and included in condition on the court file.

Where counsel is briefed to appear at a mention, the lawyer should ensure that counsel understands the circumstances in which mention and adjournment fees are payable. Both fees should be marked on the counsel back sheet.

(c) Costs orders

A costs order must be sought against DFFH if:

  • DFFH seeks an adjournment in circumstances where they have contributed to the need for an adjournment
  • DFFH has not filed and served on all parties a report as required by legislation or by court order, unless all parties consent to the making or variation of a court order at or before the hearing.

Where a VLA-funded party is awarded costs at a mention, it will not be included within the limit of four mentions.

  • For example – where a lawyer has attended three adjourned mentions and, on the fourth, applies for and is awarded costs against another party, the fourth mention will effectively be cancelled out by the costs award and a further mention will be available within the broadband grant.
  • To reinstate mention – 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 mention (as applicable) and upload a copy of the Costs Order via ATLAS.
  • To avoid doubt, if costs are awarded for any hearing type, the lawyer can claim another hearing of the same type.

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 explaining why any adjournment was necessary.

(d) Conciliation conferences

The broadband grant includes:

  • a preparation fee for taking instructions, providing advice and engaging in negotiations
  • a preparation fee for completion and service of a conciliation conference documentation (e.g. information exchange documents)
  • one conciliation conference – which covers the conference attendance as well as a meeting 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
  • one post-conference mention, where the mention is heard on a different day to the conferences
  • an adjourned conference fee
  • a conciliation conference settlement fee.

(e) Disbursements

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 (i.e. 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 lawyer'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 lawyer is unable to appear due to another client's matter or leave, and
  2. The lawyer has made enquiries with local practitioners and has ascertained that no one is able to appear.

The lawyer must document on file what attempts they have made to brief locally.

In other cases (including contested hearings, IAO appeals and Victorian Civil and Administrative Tribunal (VCAT) hearings), where counsel is briefed, the 40 kilometre requirement 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.

(f) Contested hearings and other interim stage extensions to broadband

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 nine 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 ten 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, readiness hearing or contest).

The lower interim contested adjourned fee (which is equal to a mention 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 mentions/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 mention fee – In most cases, submissions contests are covered by mention 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 mention 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 mention and adjournment rates (not interim contested fee rates, which require a separate extension).

Uplift fee – In rare cases, submissions contests 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
  • commences outside ordinary business 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).

Extension for readiness hearing or judicial resolution conference fees

The extension grant for readiness hearing or judicial resolution conference grant includes:

  • Readiness hearing or judicial resolution conference preparation
  • Readiness hearing or judicial resolution conference appearance
  • Post-readiness hearing mention
  • Directions hearing

If a matter settles my negotiation prior to the readiness hearing but after the completion of the readiness certificate, the lawyer may claim the readiness hearing or judicial resolution conference appearance fee.

If a matter proceeds to a post-readiness hearing mention after a readiness hearing, appearance at a post-readiness hearing mention will be funded where the lawyer assesses that the matter is likely to resolve on a final basis at the post-readiness hearing mention.

If a matter proceeds to a final contest after a readiness hearing or a judicial resolution conference, a directions hearing will be funded where the final contest is more than three months from the date of the readiness hearing or judicial resolution conference.

A preparation fee may be claimed where the lawyer has undertaken preparation for a readiness hearing or judicial resolution conference including completing and serving a readiness hearing certificate or complying with other procedural requirements. A new preparation fee is not available if the matter proceeds to post-readiness hearing mention.

Extensions for final defended hearing fees

The initial extension grant for final defended hearing fees include:

  • Final defended hearing general preparation fee
  • Final defended hearing subpoena inspection fee
  • Appearance fee – a daily defended hearing fee – up to 10 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 ten hearing days is VLA-assessed and requires the lawyer to provide a completed worksheet and copies of relevant reports.

Other 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:

  1. 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, $340), judgement with submissions (mention fee) or all day judgement with submissions (further contest hearing fee). These fees are claimed as non-standard disbursements
  2. additional mentions – 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.
  3. interim breach proceedings – additional mentions and adjournments where DFFH makes an interim breach application, which is VLA-assessed after the initial extension request. An extension is required even where the broadband grant for mentions has not been exhausted
  4. IAO contest by submissions uplift fee – a non-standard disbursement available in limited circumstances.

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 DFFH 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 DFFH requesting internal review and case plan changes).
  • The fees available for external review of a DFFH 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.

Child protection 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

  1. General preparation for work performed away from Court for matter other than for extension of existing order by consent
  2. Preparation of a case study plan other of extension of existing order by consent
  3. Preparation for extension of an existing order by consent
  4. Mention x4 (note 2) – mentions or IAO contests by submissions
  5. Adjournment x4 (note 2) – at table
  6. Conciliation preparation for taking instructions, provide advice and negotiation
  7. Conciliation preparation – conciliation certificate
  8. Conciliation conference
  9. Conciliation more than three hours x3 hours
  10. Conciliation adjournment – at table A2
  11. Post-conference mention – at table A2 directions hearing rate
  12. Conciliation conference settlement fee
  13. Service fees/conduct money/filing fees
  14. Disb FOI/title/lodgings/search fees
  15. Travel fee (600 kilometres)
  16. Overnight fee x5

Readiness hearing and judicial resolution conference – extension application

  1. Readiness hearing or judicial resolution conference preparation
  2. Readiness hearing or judicial resolution conference appearance
  3. Post-readiness hearing mention
  4. Directions hearing

Interim contested hearing (by evidence) – extension application

  1. First day of contest (note 3)
  2. Subsequent days x4 (note 3)
  3. Adjournment (note 3) – at table A2 IAO appearance rate
  4. Travel fee (600 kilometres)
  5. Overnight fee

Final defended hearing – extension application

  1. Final defended hearing – general preparation
  2. Final defended hearing – subpoena inspection fee
  3. Daily defended daily fee x10
  4. Adjournment x2 – at table A2 IAO appearance rate
  5. Travel fee (600 kilometres)
  6. Overnight fee
  7. Judgement appearance fee

Other broadband extension applications

  1. Additional mentions – child applicant or, if parent or third party applicant, in extraordinary circumstances (where broadband grant is exhausted – for additional mention)
  2. Additional mention – DFFH application for breach of interim order – for additional mention x2 and adjournment x2
  3. IAO contest by submissions uplift fee – limited circumstances
  4. 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)
  • Overnight fee

DFFH 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
  • Subsequent hearing days x4
  • Travel fee (600 kilometres)
  • 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.
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