Note: The following information provides guidance on how to interpret and apply guideline 5.1 and should be read in conjunction with that guideline in the Handbook.
Where there is any inconsistency between the following information and the guidelines, the guidelines will prevail.
(a) Eligibility criteria
Assistance may be available under this guideline where criteria A, and B, and C, and D are met.
Criterion A
Most child support matters are handled by either Victoria Legal Aid's (VLA’s) in-house Child Support Legal Service or a community legal centre (CLC). VLA will not make a grant of legal assistance to a panel lawyer under this guideline unless the person seeking assistance has first contacted our Child Support Legal Service or a CLC, and has been unable to obtain appropriate assistance.
Requests for assistance from the Child Support Legal Service or to a CLC are made directly to those services and not by application for a grant under the guidelines. Further information regarding the Child Support Legal Service can be found on our website.
CLCs that provide a similar service to the Child Support Legal Service are:
Clients are not limited to seeking assistance from the above three CLCs for the purposes of this guideline, but may have approached any CLC listed on the community law website.
Criterion B and C
The advice and negotiation grant is intended as a first step in attempting to resolve a dispute with minimal legal intervention. For that reason, a grant for advice and negotiation can only be the first grant recommended in a dispute, and can only be granted once in a dispute.
Criterion D
Refer to the notes linked to the following threshold tests:
and to the following supplementary information.
Commonwealth merits test and child support matters
When assessing the cost/benefit of an application for assistance under this guideline, the lawyer must take into account:
- the financial position of the applicant, the respondent and the children.
Where there is no apparent capacity of the payer parent to pay substantially increased child support or the application will result in only a slight increase to a child support assessment, this may not warrant funding, given the expected costs of legal action
-
the duration of the payments. Child support for only a short period before the child support case ends (eg when a child is about to turn 18) may not justify the cost of taking action
-
where arrears are sought, the amount of the arrears or debt. Arrears of $200 debt will not justify the cost of taking action
(b) Grants assessment process
Applications for assistance under this guideline must be lodged via ATLAS using the ‘simplified process – child support’ template, making the following selections:
- in the matters screen, select ‘child support’ under ‘matter group’ and then the appropriate matter type
- under ‘court hearings’, select ‘no court proceedings’
- under professional costs, select ‘Advice and Negotiations’
Where the Family Dispute Resolution Service (FDRS) or litigation funding has been recommended but no claims have been made, and the lawyer forms the view that funding should instead be in place only for advice and negotiation, this should be requested in a new application. The lawyer should submit correspondence on the first file advising that an advice and negotiation grant will be requested on a fresh application, and ensure that the previous file is closed by submitting a file outcome via ATLAS.
(c) Documentary requirements
The lawyer’s file must contain a file note that makes clear:
- attempts made by the client to obtain assistance from VLA’s Child Support Legal Service or a CLC.The Child Support Legal Service will provide a letter or referral email if they are unable to assist. If the client has does not have correspondence from the CLC where assistance was sought, a file note should be created noting the time and date of the appointment or phone call and the person that the client spoke to.
and
- that no previous applications have been submitted in relation to the current dispute.
and
- how each of the thresholds tests are met.
The file should also contain all other relevant notes, supporting evidence and documents.
(d) Fees and billing
Stage 1 of Fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.
Fees for this grant can only be claimed where the advice and negotiations take place prior to litigation (ie this is the first grant in the dispute).
The following documents to support claims made under the grant should be retained on the file:
- consultations with the client, including appointments and telephone attendances
- advice provided to client both oral and written
- negotiations conducted with the other party or their lawyer, including telephone attendances and letters
- letter to the client advising of the outcome of the negotiations and details of any further action to be taken
- a copy of consent orders filed with the court, where applicable.
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