Notes on Guideline 2 – parent or other adult involved in a Children's Court (Family Division) case

Guideline 2.1 – parent, guardian or third party

(a) Guideline guidance notes

For Victoria Legal Aid (VLA) to grant funding under guideline 2.1, the person must either be:

• a parent involved in a Children's Court (Family Division) case as described in guideline 2.1,
  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 a third party to a Children's Court (Family Division) proceeding where VLA is satisfied that the circumstances of the case are ‘exceptional’.

Parent in protection application matters

In respect of parents over 18 years in protection application matters, to meet the guideline criteria the parent must:

• have reasonable prospects of the child being placed in their care, and not only be seeking contact and/or changes to particular conditions in orders.

Lawyers should have evidence of a case strategy on file that demonstrates the assessment that reunification is reasonably achievable, even if it is not likely to be immediately ordered.

Parent in application for a variation or an extension of a protection order

Where a parent is over 18 years, in an application to vary or extend a protection order:

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

Example - DFFH apply to extend a Family Reunification Order. The order includes conditions for the mother to have contact in accordance with a reunification schedule that progresses with negative drug screens results and satisfactory engagement with a family support service. DFFH have not facilitated contact in terms of the schedule nor has a referral to the family support service been made. The mother has recently started returning to consistently clean drug screens and seeks to have the children placed in her care.

The mother should apply for aid on the basis that she has reasonable prospects of having her child returned to her care under the reunification schedule, because she is complying with the drug screens and is willing and able to satisfactorily engage with the family support service once DFFH make the necessary arrangements.

If the mother sought reunification in the future but had not provide clean drug screens it is likely that she could successfully argue that her child should be placed in her care in accordance with the reunification schedule.

A parent will not satisfy the guideline where the timing of possible reunification is unknown and it is unlikely that they could successfully argue that reunification should occur immediately or in accordance with a reunification schedule.

Parent in application for a care by secretary, long term care order or permanent care order

Where a parent is over 18 years in an application for a care by secretary order, long term order or a permanent care order application they must be seeking an outcome which is substantively different to the order recommended by DFFH.

An outcome will be substantively different if it relates to a significant impact on the child or the party's lifestyle, contact or cultural support.

Example - DFFH make an application for a care by secretary order or an Aboriginal child. The child has been out of parental care for more than three years. The father seeks to have the child placed with a paternal aunt who cares for other children in the family and who can support the child's cultural needs. The father is eligible for a grant to oppose the care by secretary order on the basis that he is seeking a long term care or permanent care order, specifying the paternal aunt as carer.

Parent in breach of protection order application

For a breach of protection order application:

• they oppose a breach application being proved, and
• DFFH recommend an order or conditions which are substantively different to the order breached, and
• they seek an order or conditions on an order which is substantively different to the order recommended by DFFH.

Example - DFFH apply to breach a 12 month Family Preservation Order (FPO) after six months on the grounds that the parents have not complied with a condition to take the children for necessary medical treatment. DFFH apply for an IAO out of home care at the first hearing. The parents concede that they missed a number of medical appointments but have support to ensue this does not occur again. DFFH is unsuccessful and the children are returned to their parent's care on an IAO.

The DFFH reports for the next hearing are not served within the legislated timeframe for service and are received by all parties on the morning of the hearing. The repost indicates the DFFH seek that a new FPO to be made to both parents for six months, with new conditions for respite and to enrol the youngest child in childcare.

The parent should apply for aid once the legislated time for service of reports has elapsed on the basis the DFFH's known position at the time is for a substantively different order to the original FPO. The lawyer must then reassess eligibility after the hearing, when DFFH report is received. As the report states that DFFH only seek an FPO that effectively extends the length of the original order and adds conditions which do not render the order substantively different from the original order, the lawyer should advise VLA after the hearing that the parent no longer satisfies he guidelines.

Third party applicants

Third party means a person who is not a parent but the person is joined by the court as a party to the proceeding.

Where there is a third party applicant, they must satisfy all criteria in guideline 2.1:

An example of ‘exceptional’ circumstances in this context is the third party has a significant relationship with the child (such as, but not limited to, a grandparent, aunt, uncle or adult sibling), they have had significant involvement in the child's life (such as through informally caring for the child for extended periods of time) and the third party seeks to care for the child in circumstances where DFFH oppose this. Generally, a carer appointed by DFFH will not satisfy the exceptional circumstances eligibility criteria.

(b) Other eligibility criteria - means test and state reasonableness test

In addition to the guideline eligibility criteria, the VLA means test and the State reasonableness test must also be met.

A lawyer, particularly early in the matter, may not be well placed to assess whether the State reasonableness test can be satisfied. The lawyer must base this assessment on the information available at the time and will require ongoing assessment as the matter progresses.

Note – There are additional eligibility criteria for IAO contested hearings as discussed in guideline 2.3.

(c) Grants assessment process

Lawyers can lodge applications for a broadband grant of legal assistance under guideline 2.1 via the ATLAS simplified grants ‘new application’ template (under ‘Costs & disbursements’ select the ‘Initial Lump Sum Fee’ option).

If the person is a third party, then satisfaction of guideline 2.1 will be VLA assessed. Information to be included in the grant application is discussed in Documentary requirements.

(d) Documentary requirements

• The lawyer's file should include clear notes (in a worksheet or separate file note) explaining the basis on which they consider Guideline 2.1, and the State reasonableness test, to be met.
• For a protection application or an extension/variation application and the parent is over 18 years, this needs to include an explanation of the basis on which there are ‘reasonable prospects of the child being placed in their care’ and explain the reason or basis on which the person is seeking more than access and/or condition changes.
• For applications for Long Term Care Order, Care by Secretary Order, Permanent Care Order, Variation, Extension or Breach of Protection Order the lawyer's file must document what the substantively different outcome sought by the client is.
• Notes should document how the person continues to satisfy Guideline 2.1 and the State Reasonableness Test prior to commencing work or claiming fees in relation to a conciliation conference.
• A case strategy plan.
• All other relevant notes, supporting evidence and documents as identified in the documentary requirements section.

Lawyers are also encouraged to complete a Child protection worksheet for parent and third party applicants.

If the person is a third party, the ATLAS application will also need to:

• attach a copy of the order joining the person as a third party
• clearly detail the exceptional circumstances – including a description of the relationship of the third party with the child, the extent and nature of involvement they have had in the child's life and details of DFFH’s opposition to the third party being the child's carer.

Interim stage extensions (other than contested hearings)

(a) Mention/adjournment extensions – introduction

The extent of legal assistance available under a broadband grant under guideline 2.1 is discussed in Fees and other Costs payable in Child protection matters. It includes fees for, among other things, four mentions and four adjournments (but mentions/adjournments where a costs order is made in favour of the client are not counted in this limit).

Lawyers can only make an application for extensions for mentions and adjournments for parent and third party applicants if:

• there are extraordinary circumstances where the broadband grant has been exhausted, or
• where DFFH brings proceedings for breach of an interim order. A separate extension to appear at interim stage breach proceedings is required even if there are remaining mentions available under the broadband grant.

(b) Extraordinary circumstances

Extraordinary circumstances in relation to a parent or third party applicant are limited circumstances that are so unusual and, rare and significant that the usual course of litigation is unnecessarily prolonged, and there is a resulting material detriment to the person's case. They include:

• the death of another party to the proceedings that materially affects the applicant's case
• the death/serious incapacitation of the carer that is materially detrimental to the applicant's case
• an unexpected event or change that has arisen in the proceedings which has a significant impact on duration of the proceedings

Any circumstance not included in this list must be of equivalent rarity and unusualness and equivalent significant impact such that it both prolongs and is detrimental to the person's case verity to qualify as ‘extraordinary circumstances’. These circumstances do not include common-place factors that delay litigation and may be detrimental to the case and cause additional appearances. Examples of circumstances that VLA does not consider extraordinary are:

• DFFH is not ready to proceed, for whatever reason
• the client has not given instructions, or has failed to attend on the day
• a magistrate is not available to hear the matter
• a Children's Court clinic report is not ready.

Grants assessment process and documentary requirements

Lawyers can lodge applications for an extension on the basis of extraordinary circumstances using the ATLAS ‘extension’ template.

Whether ‘extraordinary circumstances’ exist will be VLA assessed. The lawyer will need to explain the extraordinary circumstances warranting appearance at that a further mention and, where relevant, attach supporting documentation.

An extraordinary circumstances extension is for one additional mention.

(c) Interim breach proceedings

For a breach proceeding extension, DFFH must have commenced fresh proceedings for breach of an interim order and one or more separate hearing dates are required to defend the breach.

An application to vary an interim order does not qualify for an extension. However, the lawyers may apply for an extension in rare circumstances where DFFH has made a variation application in direct response to a breach of a condition of an interim accommodation order (such that the variation application is, in effect, a breach application).

Grants assessment process and documentary requirements

Lawyers can lodge applications for an extension for breach using the ATLAS ‘extension’ template.

A grant for initial breach proceedings comprises fees for two mentions and two adjournments, recognising that a breach typically will extend and complicate a proceeding.

Any subsequent applications for a breach proceeding extension will be VLA assessed. When applying for the further extension, the lawyer will need to:

• attach a copy of the DFFH breach application
• explain the basis and merits of the further extension request and, where relevant, attach supporting documentation (simply attaching the DFFH breach application without explanation is not sufficient), and
• submit whether, in their view, the matter should continue to be aided if a second or subsequent breach arises.

If a lawyer is applying for a breach proceeding extension where DFFH has made a variation application in circumstances where the lawyer is unsure whether the variation application is, in effect, a breach application, then the lawyer should:

• in the ‘Practitioner Certification’ ATLAS screen under ‘Guideline Outcome’ – select ‘Not Satisfied Discretion’, and
• attach a copy of the DFFH variation application.

VLA will then assess the extension application.

Guideline 2.2 – Interim accommodation order contested hearings

(a) Gu ideline guidance notes

Where a matter proceeds to an IAO contested hearing, an extension grant requires:

• one of the guideline 2.2 criteria to be satisfied (with examples of questions of placement), and
• it must be an IAO contest by evidence (as discussed in Fees and other Costs and payable in Child protection matters).

Question of placement is defined in guideline 2.2. It includes where children are to live, with whom children are to live and/or the exclusion of parties from the residence in which children are to live. Some examples include the following:

Question of placement – exclusion from the home

The child has been residing at home with her parents. DFFH has concerns regarding family violence. DFFH are prepared to allow the child to remain at home with the mother on the condition that the father, the alleged perpetrator of the violence, remains out of the home.

This dispute involves a question of placement as the father is essentially seeking to remain in the home and have the child placed with both parents.

Question of placement – placement with extended family

A child has been removed from their Aboriginal parents and placed in foster care with a non-Aboriginal family under an interim accommodation order. The parents acknowledge that, at this point, they are not able to have the child in their care, but are seeking to have the child placed in their care within the next few months after they have satisfied certain conditions on the interim accommodation order. The parents are seeking assessment of Aboriginal relatives in the interim.

This dispute involves a question of placement as the parents are seeking to uphold the principles under the Act of placement within the family wherever possible.

DFFH then assess an aunt of the child. DFFH decide to not place the child with the aunt as they are of the view that the foster carers can provide better care.

This remains a dispute involving a question of placement.

(b) Grants assessment process

A lawyer must submit an extension application via the ATLAS simplified grants ‘extension’ template. The lawyer will need to apply for:

• the first ten days of hearing – as recommended by the lawyer, and
• if the hearing will exceed ten days – the lawyer will need to apply for additional hearing days – which application will be VLA assessed and the lawyer will be required to include the following documents with the application:
  • a completed worksheet for hearing funding exceeding ten days
  • all relevant reports as identified in the worksheet.

Note: Where the lawyer applies to claim an an uplift fee for an IAO contest by submissions, the lawyer must make a retrospective claim as a non-standard disbursement in Fees and other Costs payable in Child protection matters.

(c) Documentary requirements

The ATLAS application should attach a completed worksheet for hearing funding exceeding ten days and relevant reports (if applicable).

The lawyer's file should include:

• clear notes (by updating the Child protection guideline worksheet or in separate file note) of the basis on which guideline 2.2 is met. For example, identifying the relevant ‘question of placement’ or basis for ‘reasonable prospects’ being met (if applicable)
• documentation confirming the outcome of the interim contested hearing
• all other relevant notes, supporting evidence and documents as identified in the documentary requirements.

Guideline 2.3 - Readiness hearings and judicial resolution conferences

VLA may make a grant of legal assistance for a readiness hearing or judicial resolution conference, where the person satisfies the relevant criteria in Guideline 2.1. Te state reasonableness test applies to this extension.

If a matter proceeds to a post-readiness hearing mention after a readiness hearing, VLA will fund an appearance at a post-readiness hearing mention 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, VLA will fund a directions hearing, where the final contest is more than three months from the date of the readiness hearing or judicial resolution conference.

A lawyer may claim a preparation fee if 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 a post-readiness hearing mention.

Example - At a readiness hearing, all parties consent to the making of a Permanent Care Order, but a Cultural Support Plan has not been completed. The matter is adjourned to a post-readiness hearing mention to enable this Plan to be completed. The lawyer may claim the post-readiness hearing mention fee as the matter is likely to resolve on a final basis at the post-readiness hearing mention.

Example - At a readiness hearing, DFFH inform the Court that they wish to undertake a further assessment of a parent and seek an adjournment. Other parties were not advised of the request for the adjournment prior to the readiness hearing. If adjourned to a post-readiness hearing mention, a lawyer will not be funded for the post-readiness hearing mention because there is no evidence to demonstrate that it is likely that the matter will resolve on a final basis at the post-readiness hearing mention. Legally aided lawyers for other parties should apply for costs against DFFH because of costs thrown away at the readiness hearing and the matter should be adjourned for a further readiness hearing.

(a) Guideline guidance notes

Where a matter proceeds to readiness hearing or a judicial resolution conference, the lawyer must apply for an extension grant.

(b) Grants assessment process

Lawyers must submit an extension via the ATLAS simplified grants 'extension' template.

(c) Documentary requirements

The lawyer's file should include:

• Clear notes (by updating the Child protection guideline worksheet or in separate file note) of the basis on which guideline 2.3 is met. For example, identifying the relevant 'question of placement' or basis for 'reasonable prospects' being met (if applicable).
• Clear notes on the instructions, advice provided and negotiations.
• A copy of the completed readiness certificate (if applicable).
• A copy of an updated case strategy for the judicial resolution conference (if applicable).
• Documentation confirming the outcome of the readiness hearing or judicial resolution conference.
• Clear notes outlining the lawyer's assessment and reasons why a matter is likely to resolve on a final basis at a post-readiness mention(if applicable).
• all other relevant notes, supporting evidence and documents as identified in the documentary requirements.

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

(a) Guideline guidance notes

Where a matter proceeds to a final defended hearing, an extension application is required. Where the hearing will exceed ten days, VLA may limit funding assistance to specific issues, specific arguments and/or a specific number of days allowed.

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

An outcome will not be considered substantively different to an order recommended by DFFH where the difference only relates to the duration of the order or to a condition that does not significantly impact in their lifestyle or their family's lifestyle.

Example - DFFH seeks a Care by Secretary for a child. DFFH reports describe protective concerns as the mother's lack of parenting capacity due to her intellectual disability, the father's substance use and his use of family violence. The mother seeks a Family Preservation Order with the child to be placed in her care and has reasonable prospects of this order being made because she is unlikely to be able to successfully argue that she now has a NDIS support plan and service in place which support her care for her child.

The father is seeking a Family Reunification Order because he ultimately wants the child placed in his care.

Both parents are seeking an outcome that is different to the order recommended by DFFH. The mother has reasonable prospects of the child being placed in her care immediately or with a short transition period. Although the father has a possibility of the child being placed in his care in the future, he does not have reasonable prospects, because it is unlikely that he could successfully argue that the child be placed in his care because he refuses to engage in a men's behaviour change program or with other family violence services and he has only provided drug screens inconsistently.

(b) Grants assessment process

Lawyers must submit an extension application via the ATLAS simplified grant ‘extension’ template. The lawyer will need to apply for:

• the first ten days of hearing – recommended by the lawyer, and
• if the hearing will exceed ten days – the lawyer will also need to apply for additional days. This application will be VLA assessed and the lawyer will be required to include the following documents with the application:
  • a completed worksheet for hearing funding exceeding ten days
  • all relevant reports as identified in the worksheet.

If it is known, before the final defended hearing, that the hearing will take more than ten days, the lawyer should apply for the additional hearing days as early as possible prior to the hearing date. If the final defended hearing unexpectedly exceeds ten days, then the lawyer should lodge a further extension application as soon as it becomes apparent that the initial ten day grant will not be sufficient.

(c) Documentary requirements

The ATLAS application should attach a completed worksheet for hearing funding exceeding ten days and relevant reports (if applicable).

The lawyer's file should include:

• documentation confirming the outcome of the final defended hearing
• all other relevant notes, supporting evidence and documents as identified in the documentary requirements.