Guideline
Victoria Legal Aid (VLA) may make a grant of assistance to apply for or respond to an application for a recovery order under the Family Law Act 1975, (whether or not location, information or substantive parenting orders are also sought) where:
- it is an urgent matter (unless the person is responding to an application made to the court, in which case this requirement does not apply)
and - 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
- a family law priority client
or - is involved in a parenting dispute where one (or more) of the following applies:
- 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 - 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 - 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.
- 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
A section 60I certificate is not required if it is an urgent matter.
Other mandatory requirements
As well as the requirements set out in Guideline 2.1, additional criteria apply in the following circumstances:
Where a person is not a parent of the child
Legal assistance under this guideline 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, VLA 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 also 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, VLAwill consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the applicant.
Documentary requirements
Applications for assistance under this guideline are within the simplified grants process and are submitted through ATLAS. Lawyers submitting an application must ensure that evidence supporting the application is kept on the file.
Lawyers are also encouraged to complete a Family law worksheet and a Proof of means worksheet for their file, available on the Invoice, forms and worksheets page.
Fees available
One of the following grants may be available in matters involving recovery orders:
- Stage 2B – application for recovery, information or location order in any court (all fees in this stage are available)
- Stage 2C – initiating litigation, Magistrates’ Court
- Stage 2E – initiating litigation, federal family courts.
- Stage 2G - interim contest hearing, FCFCOA
When a stage 2B grant is available
- Where a person qualifies for assistance under this guideline and the matter is deemed urgent solely under point 1 of the definition of urgent matter, ie the urgency relates only to the need to recover the child, the stage 2B grant is available.
- Where subsequent to being granted assistance, the parenting issues can be deemed urgent under any of points 2 to 7 of the definition of urgent matter, the lawyer can request an extension for a 2E grant.
- Under a stage 2B grant, where proceedings for the recovery of the child are concluded and there are other parenting issues remaining to be resolved, the lawyer is not automatically entitled to claim subsequent appearance fees to resolve the parenting issues.
- Where the parenting issues remaining to be resolved cannot be deemed urgent under any of points 2 to 7 of the definition of urgent matter, the lawyer must refer the parties to our Family Dispute Resolution Service (FDRS). The lawyer should recommend applying for a stage 1B grant (Preparation for early intervention FDRS).
When a stage 2C or 2E grant is available
Where a person qualifies for assistance under this guideline and the matter is deemed urgent under point 1, and under any of points 2 to 7 of the definition of urgent matter, the stage 2C grant or 2E grant, is available.
When a stage 2G grant is available
- Where the recovery order application is contested and listed for a contested interim hearing on whether the recovery order should be made, an extension may be sought for a Stage 2G grant and confirmation of this listing must be retained on the file
- Under a stage 2G grant, where proceedings for the recovery of the child are concluded and there are other parenting issues remaining to be resolved, the lawyer is not automatically entitled to claim subsequent appearance fees to resolve the parenting issues.
Where the parenting issues remaining to be resolved cannot be deemed urgent under any of points 2 to 7 of the definition of urgent matter, the lawyer must refer the parties to our Family Dispute Resolution Service (FDRS). The lawyer should recommend applying for a stage 1B grant (Preparation for early intervention FDRS).
The Recovery order flowchart, available in the Notes on the Commonwealth family law and child support guidelines, sets out the fee pathways under this guideline.
Conditions
The following conditions apply to grants of assistance for recovery orders:
- Under a stage 2B grant, lawyers can claim one additional appearance fee in recovery order proceedings in the federal family courts without an extension of assistance. In some circumstances an extension of assistance may be sought via the simplified grants process for a second additional appearance fee in recovery order proceedings in the federal family courts.
- The person requesting assistance for an application for a recovery order must seek a costs order against the other party from the court. If the other party also has a grant of legal assistance in the matter, this condition does not apply.
- A grant of assistance for a recovery order is treated as a new matter for the purposes of family law costs management. This means we will not include the amount of the grant when calculating the cost ceiling for the substantive matter (that is, parenting orders about with whom a child should live or spend time).
Notes on this guideline
For commentary and examples on the eligibility criteria, grants assessment process, documentary requirements and fees and billing relevant to this guideline, see the Notes on guideline 2.1.
Updated