Notes on the key definitions

Best interests of the child

For the purposes of deciding whether a person who is not a parent of a child should receive a grant of assistance in a parenting dispute relating to the child, the ‘best interests’ consideration involves an evaluation of a range of factors that are likely to contribute to the best outcome for the child. The assessment may involve consideration of the principles set out in s. 60CC of the Family Law Act 1975 (Cth), but is not confined to consideration of these principles.

This definition relates to applications for assistance for persons who are not parents of the subject child.

A party who is not a parent may be any person who is not a biological parent. It is not necessary that the person be a blood relative.

For a non-parent to qualify for assistance, in addition to the requirements set out in the relevant guideline, they must be significant to the care, welfare and development of the child and/or it must be in the child’s best interests for the person to be granted legal assistance in relation to the dispute.

If the child’s safety or welfare is at risk, then it may be in the child’s best interests for Victoria Legal Aid (VLA) to provide a grant of legal assistance to a third party. If there are state child protection orders in place, or current court proceedings under a state child welfare law are on foot, and those orders or proposed orders are in favour of a person who is not a parent, VLA may make a grant of legal assistance to the extent necessary to secure the child’s best interests.

Cultural or language barriers

For the purpose of determining whether a person is a family law priority client, a person experiences cultural or language barriers if:

• the characteristics or social norms of the ethnic or religious community to which they are associated by birth or identification, mean they are at a material (or significant) disadvantage in relation to the dispute for which they seek assistance, or the processes available to resolve the dispute
  and/or
• English is not their first language, they have a low level of proficiency in English and there are reasons why the use of an interpreter would not adequately address the disadvantage they face on the basis of language.

The following are examples of a person experiencing cultural and/or language barriers:

• a recently arrived immigrant from a country where there is a fear of government and statutory agencies, whose first language is a language other than English and who has low levels of English language proficiency
• a person who has recently arrived in Australia as a refugee or humanitarian entrant
• a person who experiences a power imbalance either:
  • in their relationship with the other party to the dispute, due to cultural differences
    or
  • in their cultural community, on the basis of things such as gender or other characteristics.

Cultural bar rier

A person may be considered to have a cultural barrier where the characteristics or social norms of the ethnic or religious community to which they are associated with mean they are at a material disadvantage in relation to the dispute for which they seek assistance, or navigating the process of settling the dispute.

A cultural barrier is any practice, tradition or conception in the applicant’s cultural background which prevents them from participating effectively in FDRS without legal representation or running their own case in court.

Language barrier

It is not sufficient to recommend assistance solely on the basis that English is not the client’s first language. There must be real and demonstrable reasons why the use of an interpreter would not address the disadvantages faced by the person based on language.

Documentary requirements

A file note containing the following:

• clarification on the nature of the cultural or language barrier the person seeking assistance faces. This file note can be based on the client’s instructions
  and
• where the person is being assessed for family law priority client for the purposes of FDRS, a file note confirming the lawyer’s assessment that the cultural or language barriers prevent the person from participating effectively in FDRS without legal representation (for an advice and negotiation or FDRS grant)
  or
• make the person unable to effectively run their own case in court without a lawyer representing them (for a litigation grant).

Diagnosed serious mental health issue or psychological illness

Even where a person making an application instructs the lawyer that they suffer from a diagnosed serious mental health issue or psychological illness and provides a copy of a letter from an appropriately qualified person confirming the diagnosis, they will not automatically meet this requirement.

The lawyer must also be satisfied that the illness:

• makes the person unable to participate effectively in FDRS without representation (for an advice and negotiation or FDRS grant), or
• makes the person unable to run their own case in court without representation (for a litigation grant).

The lawyer needs to be mindful that many persons seeking legal assistance would identify themselves as having a psychological illness and have supporting letters from medical practitioners. However, not all of them would be unable to represent themselves in FDRS or run their own case in court due to such illnesses.

Lawyers should also be mindful of the possibility that while a person with a diagnosed serious mental health issue or psychological illness might satisfy the requirements of family law priority client for litigation, they may not satisfy the requirement of family law priority client for advice and negotiations or FDRS. This possibility may arise where their diagnosed serious mental health issue or psychological condition may prevent them from running their case in the formal setting in court, but not prevent them from effectively representing themselves in the more informal setting of FDRS.

If the client instructs that their illness is exacerbated by stress, this should be confirmed in the evidence produced by the treating professional.

Documentary requirements

The following documents should be retained on the file:

• a letter from the person's psychiatrist, psychologist, medical specialist or general practitioner (as applicable) confirming the diagnosis

and

• where the person is being assessed for family law priority client, a file note confirming the lawyer’s assessment that the diagnosed serious mental health issue or psychological illness:
  • prevents the person from participating effectively in FDRS without legal representation (for an advice and negotiation or FDRS grant)

or

• makes the person unable to effectively run their own case in court without a lawyer representing them (for a litigation grant).

Disability

For the purpose of determining whether a person is a family law priority client, a disability is one of the following:

• a cognitive impairment, such as an intellectual disability or an acquired brain injury
• a serious health condition or physical disability.

The person being in receipt of a Disability Support Pension from Centrelink is not sufficient to satisfy this criterion.

The person's instructions that they suffer from a disability are not sufficient to satisfy this criterion (please see documentary requirements below).

When assessing a person's eligibility under the second limb of ‘disability’ ie serious health condition/physical disability, the lawyer should consider the extent to which the VLA FDRS service or the court could accommodate the condition or disability.

Factors that should be taken into consideration when assessing whether a person’s condition impacts on their ability to represent themselves (at FDRS or court) include:

• ability to communicate verbally
• ability to prepare documents
• effects of medication
• physical incapacities.

Documentary requirements

Where the disability is ‘a cognitive impairment’, the following documents should be retained on the file:

• a copy of the assessment completed by an appropriately qualified professional confirming the cognitive impairment
  and
• where the person is being assessed for family law priority client, a file note confirming the lawyer’s assessment that the cognitive impairment:
  • prevents the applicant from participating effectively in FDRS without legal representation (for an advice and negotiation or FDRS grant)
    or
  • makes the person unable to effectively run their own case in court without a lawyer representing them (for a litigation grant).

Where the disability is ‘a serious health condition or physical disability’, the following documents should be retained on the file:

• a letter/assessment by an appropriately qualified professional confirming the condition/disability. This letter/assessment must include detailed information on the nature and extent of the condition/disability
  and
• where the person is being assessed for family law priority client, a file note confirming the lawyer’s assessment that the serious health condition/disability:
  • prevents the applicant from participating effectively in FDRS without legal representation (for an advice and negotiation or FDRS grant)
    or
  • makes the person unable to effectively run their own case in court without a lawyer representing them (for a litigation grant).

Drug and/or alcohol issues

For the purpose of determining whether a person is a family law priority client, a person has drug or alcohol issues if they are, or have been in receipt of services to address the misuse or over use of alcohol and/or drugs (including prescription, over the counter and illegal drugs).

Where an applicant qualifies under this criterion, lawyers must make a careful assessment of how the orders the person seeks to meet the Commonwealth merits test.

Documentary requirements

The following documents should be retained on the file:

• evidence from a professional who has assisted the person that they have a drug and/or alcohol issue
  and
• where the person is being assessed for family law priority client, a file note confirming the lawyer’s assessment that the drug/alcohol issues:
  • prevent the person from participating effectively in FDRS without legal representation (for an advice and negotiations or FDRS grant)
    or
  • make the person unable to effectively run their own case in court without a lawyer representing them (for a litigation grant).

Family law priority client

For a person to be a family law priority client, criteria A or B must be met.
A family law priority client is either:

1. a person with one or more of the following vulnerabilities:

• a disability
• a diagnosed serious mental health issue or psychological illness
• cultural and/or language barriers
• literacy barriers
• drug and/or alcohol issues

and this

• makes the person unable to participate effectively in family dispute resolution at VLA's Family Dispute Resolution Service (FDRS) without legal representation (for an advice and negotiation or FDRS grant)
  or
• the person is unable to effectively run their own case in court without a lawyer representing them (for a litigation grant)

The family law priority client can only rely on one of these core vulnerabilities where the vulnerability prevents them from:

• participating effectively in FDRS without legal representation (for an advice and negotiation or FDRS grant)
  or
• effectively running their own case in court without a lawyer representing them (for a litigation grant)
  or
  

2. a person who:

• is experiencing homelessness
  or

• identifies as Aboriginal or Torres Strait Islander

  or

• has experienced, or is at risk of experiencing family violence.

For guidance notes, documentary requirements and examples for the above criteria, please refer to the notes linked to each of the definitions.

Family violence

The term family violence has the same meaning as that contained in section 4AB of the Family Law Act 1975 (Cth), ie behaviour towards a family member that is violent, threatening or controlling, or causes the family member to be fearful. This includes, but is not limited to, physical, verbal, financial abuse and emotional abuse.

The assessment of whether a person seeking assistance meets the family law priority client definition based on their experience of family violence is made by the lawyer on the instructions provided. No substantiating evidence is required.

However, the lawyer needs to assess whether the nature and degree of conflict between the parties is such that the person seeking assistance has experienced family violence as set out in the Family Law Act and the guidelines.

This guideline applies to all parties in a matter which involves allegations of family violence, even if those allegations are denied by one of the parties.

Lawyers should be particularly mindful of the requirements under the Commonwealth merits test where assistance is recommended for the person alleged to be the perpetrator of family violence. If it is determined that family violence has been committed by the person seeking assistance, then the orders sought will need to reflect this.

A file note outlining the family violence experienced or alleged should be retained on the file.

Homelessness

Homelessness includes primary homelessness and secondary homelessness.

A file note clarifying how the person's circumstances meet the definition of ‘homelessness’ should be retained on the file.

Literacy barriers (including reading or writing difficulty)

For the purposes of determining whether a person is a family law priority client, a person experiences literacy barriers if they have difficulty reading and writing in English or using numbers, images, computers, and other common ways of communicating or accessing knowledge.

Documentary requirements

The following documents should be retained on the file:

• a file note detailing how the person's circumstances meet the definition of 'literacy barriers'

and

• where the person is being assessed for family law priority client, a file note confirming the lawyer’s assessment that the drug/alcohol issues:
  • prevent the person from participating effectively in FDRS without legal representation (for an advice and negotiations or FDRS grant)
    or
  • make the person unable to effectively run their own case in court without a lawyer representing them (for a litigation grant).

Magellan matter

Where a matter is listed in the Magellan List, it is relevant to VLA funding in the following circumstances:

• the matter will not be subject to the family law fee ceiling
• ICL’s will be entitled to instructing fees at trial.

All other relevant criteria apply in Magellan matters including the guidelines, merits test and means test.

Lawyers must state on the application or extension if the matter is listed in the Magellan List.

Required section 60I certificate

Where the person is the applicant in a matter, ie they are seeking to initiate legal proceedings, they must either have an FDR certificate issued under section 60I(8) of the Family Law Act 1975 (Cth), or meet the urgent matter criteria, to be eligible for litigation funding.

For respondents to litigation, it is not necessary to have a ‘required section 60I certificate’ or to meet the urgent matter definition.

For the purposes of determining eligibility under the VLA guidelines, only section 60I certificates which come within this definition of ‘required section 60I certificate’ are sufficient to excuse a person from attempting FDR. While a section 60I certificate issued by another FDR service, such as a Family Relationship Centre, satisfies the court’s requirements to initiate proceedings, they will not necessarily satisfy VLA requirements. The following outlines what constitutes a ‘required section 60I certificate’.

Certificate issued because the other party has refused to participate

Such certificate is only acceptable from the VLA FDRS service.

Refusal of family dispute resolution though another FDR lawyer does not necessarily lead to refusal to participate in VLA FDRS. A party’s refusal to participate may have been due to issues of domestic violence or due to the other party not having a lawyer at that stage. Both issues can be addressed, or may not be a concern in mediations proceeding through VLA FDRS. For more information, see Important information about FDRS.

Assistance for litigation proceedings will not be granted to the party who refused to participate. VLA will only allow a VLA FDRS grant in such circumstances.

Certificate issued that FDR not appropriate

Such a certificate is only acceptable from the VLA FDRS service.

Where another FDR service may deem a matter to be inappropriate for FDR, it may still be appropriate to proceed at VLA FDRS. Our FDRS has a far greater range of options available to facilitate mediation while ensuring the safety of all parties involved. For more information, see Important information about FDRS.

Genuine effort made by all parties to resolve the issues

Such a certificate is acceptable from any FDR service, including FDRS.

All parties must have attended mediation, engaged in negotiations and made a genuine effort to resolve the dispute.

No genuine effort made by a party to resolve the issues

Such a certificate is acceptable from any FDR service, including FDRS.

Assistance for litigation proceedings will not be granted to the party who refused to make the genuine effort.

Certificate issued after unsuccessful mediation

Such a certificate is acceptable from any FDR service.

Both parties must have participated in a FDR conference and had access to legal advice before or during the conference.

The table below summarises which authority (VLA FDRS or any other FDR service) needs to have issued the section 60I certificate for it to be acceptable for purposes of a litigation grant:

Table 2 – Required section 60I certificates

Significant change in circumstances

VLA will only provide assistance to a person to vary or discharge orders where there has been a ‘significant change in circumstances.’

A 'significant change in circumstances' is a change that, if it had occurred prior to the making of the existing orders or parenting plan, would have resulted in significantly different orders or parenting plan being made.

If the 'significant change in circumstances' has been caused by the person, VLA will consider the circumstances surrounding that change in deciding whether it is appropriate to make a grant of legal assistance to the person.

In child or spousal maintenance matters, a significant change in the financial circumstances is required, such as becoming unemployed since the orders were made, increased medical expenses for a disabled child, or a change in a tertiary course undertaken by a child.

A required section 60I certificate must have been issued or the matter must meet urgent matter to initiate or respond to orders to discharge or vary.

Significant to the care, welfare and development of the child

A party who is not a parent may be any person who is not a biological parent. It is not necessary that the person be a blood relative.

For a non-parent to qualify for assistance, in addition to the requirements set out in the relevant guideline, they must be significant to the care, welfare and development of the child and/or it must be in the child’s best interests for the person to be granted legal assistance in relation to the dispute.

VLA considers that any adult who has primary care of the child, or who spends substantial time with the child is significant to the care, welfare and development of the child and has standing to participate in court proceedings. A grandparent is an example of a person who may be considered significant to the care, welfare or development of a child.

Substantial contravention

The substantial contravention requirement ensures that grants of assistance for contravention and enforcement action meet the Commonwealth merit test.

A substantial contravention of a parenting order will usually relate to ‘live with’ or ‘spend time with’ conditions or orders. A contravention of conditions that are ancillary to ‘live with’ or ‘spend time with’ conditions are less likely to meet the definition of ‘substantial contravention.’

Contravention or enforcement proceedings should be instituted without undue delay following the last breach.

Assistance may be granted for contravention of interim orders as well as for those occurring after final orders have been made.

Urgent matter

Where a matter is characterised as an urgent matter, the person seeking assistance is not required to attend FDRS to try and resolve the dispute prior to making an application to the court.

Meeting the definition of urgent matter does not remove the need for the person seeking assistance to satisfy other criteria set out in the relevant guideline eg either priority litigation client or criterion C of Guideline 1.3.

An urgent matter is one where one or more of the following criteria is met:

1. a child has been removed, or has not been returned, and a court order is required for the return of the child.

This criterion must be met under Guideline 2.1 where assistance is sought to initiate recovery order proceedings.

Satisfying criterion 1 of the definition of ‘urgent matter'

To satisfy criterion 1 of the definition of urgent matter, the person must have made attempts to have the child returned, or to locate the child, prior to seeking assistance to initiate proceedings. The lawyer must also ensure that the matter can properly be characterised as urgent. One indication of urgency is the length of time between the removal of the child, or the failure to return the child and the application for assistance. Depending on other relevant circumstances, a delay of one week or more to apply for assistance where there is no good reason for the delay, suggests that a matter is not urgent.

Other things to keep in mind when determining urgency in recovery matters include:

• if there are existing orders, are the orders clear or is it possible the orders have been misunderstood by either party?
• if the other party has not responded to your client’s calls, is there a possible explanation for this?
• is there a history of one party returning the child to the other party after the agreed time?

Where a matter cannot properly be characterised as urgent under this guideline, assistance may be available to apply for, vary, discharge or enforce parenting orders.

It is not necessary in establishing that the matter is urgent, for there to be facts which indicate there is a risk to the child. Assistance for a recovery order may be provided under Guideline 2.1 even though a child’s safety or welfare is not at risk. In these circumstances, a court may make a recovery order and let it lie on the file for a short period to enable the parent to return the child voluntarily and avoid federal police involvement.

Documentary requirements

A file note detailing the current parenting arrangement and when the child was removed or supposed to be returned. The file note must also include details of attempts made to recover or locate the child.

For location/information orders, the file note must detail the necessity for the order, where it is believed the child is located and when the person last had contact with the child.

The file note must also include details of attempts made to recover/locate the child.

Satisfying criterion 2 of the definition of ‘urgent matter'

2. there is immediate risk of removal of a child from Australia or to a remote geographic region within Australia

The following applies in determining this issue:

• a remote geographical area is one that would be difficult to access due to required travel/limited transport
• the child being taken to the remote geographical location must make the current parenting arrangements unworkable
• the removal of a child interstate is included in this definition as long as the removal makes the parenting arrangement unworkable
• the risk of removal must be real and not simply a possibility
• the risk of removal must be immediate
• the availability of transport will be relevant.

Documentary requirements

A file note detailing the immediate risk of removal of the child including likely location and why it is believed the child will be removed.

The risk of removal must be real and not simply a possibility.

Satisfying criterion 3 of the definition of ‘urgent matter'

3. the child’s safety or welfare is at immediate risk and a court order must be obtained to ensure the safety of the child.

A child’s safety or welfare being at risk is relevant for both this definition and for criterion C of Guideline 1.3. However, the satisfaction of the requirement in criterion C of Guideline 1.3 does not automatically mean that this part of the urgent matter definition is also met.

One point of difference is the requirement of ‘immediate risk’ in the urgent matter definition, but not in in criterion C of Guideline 1.3. For the matter to be deemed an urgent matter, the risk to the child must be so immediate that a court order must be obtained to ensure the child’s safety.

Lawyers should not recommend assistance under this definition simply because an intervention order has been sought or made. Where the child is listed as an affected family member on an intervention order and the alleged perpetrator is entitled to arrange time with the child, there may not be an immediate risk to the child just because time with is to be negotiated.

There may be an immediate risk to the safety of the child where, for example, the party who spends time with the child has re-partnered and is living with a convicted child sex offender. It may be necessary to obtain urgent court orders to ensure that the new partner is not present while the child spends time with that party.

Documentary requirements

A detailed file note outlining the circumstances indicating the child’s safety is at an immediate risk of harm, the reasons a court order is required in the family law jurisdiction and how the order will ensure the safety of the child.

Any other available documentary evidence such as intervention orders, police reports, medical reports, etc.

Satisfying criterion 4 of the definition of ‘urgent matter'

4. the safety of the person seeking assistance is at immediate risk and a court order must be obtained to ensure their safety.

This part of the definition is not limited to situations where an IVO is required to ensure the safety of the applicant. It covers situations where even interim parenting orders could de-escalate the risk to the person seeking assistance, and situations where there is an immediate risk to the applicant’s safety irrespective of whether there is an IVO in place. Lawyers should not recommend assistance under this criterion where an intervention order is the most appropriate way to ensure the safety of the applicant.

Assistance should only be recommended where orders in the family law jurisdiction are required to ensure that safety of the applicant and/or to de-escalate the risk.

If this criterion is met, the person seeking assistance must still meet the other criteria set out in the relevant guideline.

Documentary requirements

A detailed file note outlining the circumstances which indicate the applicant’s safety is at an immediate risk of harm, the reasons a court order is required in the family law jurisdiction and how the order will ensure the safety of the applicant.

Any other available documentary evidence such as intervention orders, police reports, medical reports, etc.

Satisfying criterion 5 of the definition of ‘urgent matter'

5. the matter involves current reported allegations, investigations and/or court proceedings relating to the abuse of the child. The Risk Notice filed by the lawyer must set out the allegations that support this.

To satisfy this criterion, allegations must have been reported to the police, a child welfare authority, a medical practitioner or another relevant authority, such as the child’s teacher or a maternal child health nurse. The unreported suspicions of a party are not sufficient.

The allegations, investigations and/or court proceedings must be current (ie they must be contemporaneous with, and relevant to, the proceedings for which assistance is sought).

The mere filing of the Notice of Risk is insufficient to meet this requirement. It is essential that the information in the Notice of Risk substantiates the presence of current reported allegations, investigations and/or court proceedings relating to child abuse.

Lawyers cannot rely on allegations that are not current or not reported when recommending assistance under this criterion.

Documentary requirem ents

Evidence of the current reported allegation, investigation or court proceedings relating to abuse of child.

Evidence may include police reports, medical reports, school reports or reports/letters from DFFH .

The Notice of Risk on the file must set out details of the allegations of child abuse and confirm where the report was made to.

Satisfying criterion 6 of the definition of ‘urgent matter'

6. a state child protection order (including an interim order) is in place in relation to the child and the state Department of Families, Fairness and Housing (DFFH) has recommended that the parties obtain family law orders relating to the child when the child protection order lapses

In order to satisfy the requirement of urgent matter under this part of the definition, the DFFH needs to have advised that they intend to withdraw from the matter on the lapse of the existing child protection order and has recommended that the person should initiate proceedings in the family law jurisdiction.

Documentary requirements

A letter from DFFH advising of their intention to withdraw from the proceedings and recommending that the client seek parenting orders in the family law jurisdiction.

If DFFH have not provided a letter, the lawyer will need a file note of a telephone conversation with DFFH advising of their intention to withdraw and recommending the client seeks parenting orders in the family law jurisdiction.

Satisfying criterion 7 of the definition of ‘urgent matter'

7. there are other exceptional circumstances that require urgent legal assistance.’

Exceptional circumstances are circumstances not covered in points 1-6, above, and that urgent court orders are required for the best interest of the child.

Lawyers should note that ‘exceptional circumstances’ has a high threshold: That any delay in legal assistance would have extremely serious consequences.

Lawyers are encouraged to seek discretion ffrom VLA if they intend to rely on ‘exceptional circumstances’ given the high threshold.

Documentary requirements

A file note clearly setting out the details of what the exceptional circumstances are.