Notes on Guideline 8.1 – Applicants

Commencing Proceedings

An applicant seeking a family violence intervention order under the Family Violence Protection Act 2008 (the Act), must begin proceedings with the help of the Police or a registrar in the Magistrates’ Court.

Family Violence Priority Client

A priority family violence client is defined as:

1. A person who identifies as Aboriginal and Torres Strait Islander; or
2. A person with one of the following vulnerabilities:
   1. A person with a diagnosed intellectual, neurological, or cognitive disability; or
   2. Lesbian, gay, bisexual, transgender, intersex, queer or other sexually or gender diverse person (LGBTIQ+) and due to that vulnerability are unable to effectively run their own case in court without a lawyer representing them.
   3. A person who experiences cultural and/or language barriers, and due to that vulnerability are unable to effectively run their own case in court without a lawyer representing them.

Related proceedings – Applications to vary or revoke

In cases where the original applicant seeks to respond to the original respondent’s application to vary or revoke a family violence intervention order, VLA will extend assistance to oppose the application only when the matter is listed for a contested hearing or a direction hearing where the client meets the definition of priority family violence client criteria.

Related proceedings – Applications to appeal

Where the original applicant seeks to respond to an appeal in the County Court by the respondent against the making of an order in the applicant’s favour, a lawyer may recommend assistance for the appeal providing that the merits of the matter remain substantially the same. In making this recommendation, the lawyer must have regard to the evidence that was adduced on oath by both parties in the original Magistrate's Court proceedings.

Merit

As well as meeting the State reasonableness test, the lawyer must form the view that the application, including final order conditions sought, is not frivolous, vexatious or in bad faith and more likely than not to succeed.

The phrase, more likely than not to succeed means the following:

1. a careful and experienced lawyer must form the view that the application is not frivolous, vexatious or in bad faith; and
2. it is likely that the court will make the family violence intervention order as sought by the applicant.

Example

The applicant has recently applied for a family violence intervention order and advises that she requires representation ‘just in case’ the respondent decides to contest the matter. The applicant says that she is scared and intimidated by the respondent and feels that she needs the support of a solicitor in court. There have previously been instances of assault and domestic violence (convictions) by the respondent against the applicant. The applicant is not a priority family violence client, and the matter is not listed for a directions hearing.

ATLAS application requirements

To apply for a grant of legal assistance under this guideline, practitioners should use the ‘Simplified Process – Family Violence’ ATLAS application template. On the guideline statement screen of the application, you will need to indicate whether the client satisfies:

1. ‘Adult Applicant’ (where the client does not satisfy priority criteria); or
2. ‘Adult Applicant (Priority FV Client)’. If selected, you will be prompted to select which priority factors apply to the applicant:
   1. Aboriginal and/or Torres Strait Islander
   2. Lives with intellectual, neurological or cognitive disability
   3. LGBTIQ+ person
   4. Experiences cultural and/or language barriers.

Documentary requirements

Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit an application via ATLAS, only after ensuring that all the following documents are retained on file:

• A reference to how Guideline 8.1 is satisfied.
• a copy of the application for a family violence intervention order including the complaint, and interim order
• where aid has been approved based on the client satisfying ‘priority family violence client’ criteria:
  • for an Aboriginal and/or Torres Strait Islander person or a LGBTIQ+ person, a file note confirming the applicant’s instructions about their identity.
  • for a person living with an intellectual, neurological or cognitive disability, a copy of the assessment completed by an appropriately qualified professional or a letter from an appropriately qualified professional confirming the disability.
  • for a person experiencing cultural and/or language barriers, a file note confirming the nature of the cultural or language barrier the person seeking assistance faces. This file note can be based on the client’s instructions.
• relevant proof of means.
• proof of any State special circumstances

To ensure that all requirements are met, refer to the guideline worksheet.