Guideline 3 – appeal against interim accommodation order to Supreme Court
(a) Guideline guidance notes
Victoria Legal Aid (VLA) may grant legal assistance to a child or parent to appeal or respond to an appeal against an interim accommodation order that places the child out of the parents’ care where the requirements set out in guideline 3 relating to reasonable prospects are satisfied.
Victoria Legal Aid (VLA) may grant legal assistance to a child or parent to respond to an appeal initiated or supported by DFFH against an interim accommodation order that places a child in the parents' care and there are reasonable prospects that the interim accommodation order will be upheld.
Example – Protection application by emergency care and the magistrate makes an IAO for a baby to be placed in foster care, the mother is breast-feeding and the child has never been separated from the mother prior to removal the day before. The protective concern is family violence. The parents agree for the father to be excluded from the house and for an intervention order to be made protecting the mother and baby but the Department of Families, Fairness and Housing (DFFH) does not accept this is sufficient to keep the child safe. The mother has good prospects of success in getting the child placed with her if the father is out of the house and an intervention order is made. The mother should apply for aid to respond to the DFFH application.
Example - Protection appliction by emergency care and DFFH sought an IAO for out of home care on the basis that the mother is using illicit drugs. The magistrate makes an IAO for a child to be placed with the mother with a condition that the mother reside with the grandmother and undertake drug screens. DFFH does not accept this is sufficient to keep the child safe and appeals the IAO. The mother should apply for aid to respond to the DFFH application
(b) Other eligibility criteria
If person is a parent – the VLA means rest and State reasonableness test must also be met. Ongoing satisfaction of these criteria is required.
If person is a child – the VLA means test does not apply. If the child is not initiating the appeal, the State reasonableness test should be assessed as satisfied. If the child is initiating the appeal, then an assessment must be made as to whether the State reasonableness test is met.
(c) Grants assessment process
Lawyers can lodge an application for a grant of legal assistance to appeal an interim accommodation order via the ATLAS simplified grants ‘extension’ template. Note:
- in the ATLAS ‘Matters’ screen, select the ‘Matter Group’ as ‘Children’s Court (Family Division)’, notwithstanding that the appeal will be held in the Supreme Court
- in the ‘Court Hearings’ screen, if the client is initiating the appeal, under:
- ‘Are there any court proceedings’ – select ‘Yes – Intended’
- ‘When is the next hearing date?’ – can be left blank
- ‘Which court/tribunal do you have to go to?’ – select ‘Supreme Court’
- ‘Court Proceedings Number’ – enter the words ‘Not available’
- 'Type of orders sought’ – enter ‘Interim Orders’.
Satisfaction of the guideline criteria will be VLA assessed. Information to be included in the grant application is discussed below in Documentary requirements.
(d) Documentary requirements
The ATLAS application should include or attach (as applicable):
- an explanation of the basis on which guideline 3 (including the reasonable prospects requirements), and the State reasonableness test, are met
- if responding to an appeal, relevant court reports and appeal documentation (proof of matter)
- the most recent DFFH report and court clinic report (if available) or, if not available, the protection application
- details of orders sought by the parties.
The lawyer’s file should include:
- documentation confirming the outcome of the appeal
- all other relevant notes, supporting evidence and documents as identified in the documentary requirements section.
Updated