Notes to family law trials and final hearings guideline

6.6.1 General principles

1. For the purposes of this section, the expression 'trials' also includes preparation for the proposed trial.
2. Practitioners must have regard to the Commonwealth merits test including cost benefit when recommending assistance for trials in family law matters (refer 6.1.1 of these notes).
3. Practitioners must satisfy Victoria Legal Aid (VLA) that their client’s matter also continues to meet the litigation guideline. This includes:

• there continues to be a substantial issue in dispute; and
• the matter continues to be a 'priority matter'; and
• that there continues to be merit in the orders the client is seeking.
• If the matter no longer meets the litigation guideline or merits test, practitioners should not recommend assistance for trials.

4. Assistance for family law proceedings, other than matters in the Magellan List of the Family Court, are subject to the Commonwealth’s cost ceiling of $15,510 (GST inclusive).
5. Prior to making a recommendation for assistance for trial, practitioners must submit all outstanding claims for the matter and confirm with VLA that there are sufficient funds available under the Commonwealth’s cost ceiling to enable completion of the matter. A file note must be made of the advice received.
6. If insufficient funds remain within the fee ceiling, an application for over-cap funding must be submitted to VLA for assessment. Such an application cannot be the subject of a practitioner’s recommendation. Assistance in excess of the costs ceiling will only be provided if refusal would cause an undue hardship to the applicant (see Commonwealth family law guideline 17.3).
7. VLA may provide assistance for representation at trial (by counsel or lawyer) where:
   1. the matter is listed in the Magellan Program; or
   2. the applicant is a person with an intellectual disability or an acquired brain injury who is an eligible person receiving services from the Department of Human Services or a registered disability service provider under the Disability Act 2006; or
   3. the applicant is a person with a diagnosed mental illness who is receiving services from an approved mental health service under the Mental Health Act 1986; or
   4. the other party has had a conviction recorded for a family violence related offence(s) in relation to either:
      • the applicant or
      • a former partner or
      • a child or children in the care of either the applicant, a former partner or the other party, or both

      and the applicant has expressed significant fears for their own safety;

   5. the other party has had a conviction recorded for breaching an intervention order protecting either:
      • the applicant or
      • a child subject to these family law proceedings or
      • a former partner or
      • a child of that former partner
      • and the applicant has expressed significant fears for their own safety; or
   6. The applicant has relocated to a location which is undisclosed to the other party due to significant safety concerns and the applicant can provide evidence of one or more statutory agency's involvement in or endorsement of the relocation or a court order permitting relocation to an undisclosed location; or
   7. The other party is represented either privately, through pro bono assistance, or pursuant to (ii) – (vi) above.

8. Approval for trial funding based upon (g)(vii) is assessed by VLA’s Assignments Family Law Team. Prior to submitting an application for assistance for trial, the practitioner must confirm with the other party’s practitioner whether the other party will be represented at trial. It is not necessary to ask on what basis this representation is provided, that is, whether that representation is pursuant to (g) (i) – (vi) above or privately funded or pro bono representation. Trial funding will not be approved unless the application for legal assistance contains the details of the other parties to the proceedings and confirmation that the other party will be legally represented at trial.
9. Before recommending assistance for clients with an intellectual disability, acquired brain injury, or mental illness, (see (g) (ii) and (iii) above), the practitioner must have on file:

• confirmation of eligibility under the Disability Act. The practitioner will need a signed authority from the client to be able to telephone DHS (the relevant contact point is the local DHS office, details are available on the DHS website) or the registered disability service provider to ascertain whether the client has been assessed as eligible and in receipt of services under the Disability Act. A file note by the practitioner of the telephone conversation with DHS or registered service provider will be required to be kept on file. The DHS Disability Services website has a link to the current list of registered disability service providers; or
• confirmation of being in receipt of services from an approved mental health service under the Mental Health Act (this may include written confirmation from the service or a file note by the practitioner of a telephone conversation with the health care provider). A list of approved mental health services may be found on the Department of Health website.
• file notes confirming eligibility or receipt of services must indicate the date of confirmation, the name and position of the person providing the confirmation (clearly indicating authority to provide the confirmation). Where the client is subject to a Community Treatment Order, a copy of that order is sufficient.

8. Being in receipt of services from an approved mental health service includes receiving such services pursuant to a community treatment order.
9. Before recommending assistance for clients on the basis that the other party has prior convictions for breach of intervention order or family violence related offences, practitioners are required to:

• sight the relevant records detailing the offences and the court outcome and relevant related documentation either within subpoena material, affidavit material or obtained through other relevant processes, for example, court decisions, judgements etc; and
• have a file note confirming their sighting of the relevant records and details of the conviction recorded;
• have on file material in an affidavit, Family Report, s 11 F report or other relevant third party reports confirming that the offence(s) were committed in circumstances of family violence as set out in (iv).

Criminal records are the records detailing the offences and the court outcome. The file notes and records must include:

• confirmation of the offence and that a conviction was recorded for that offence, the date the conviction was recorded
• the date the offence occurred and the relationship between the nature and/or victim of the offence(s) and the other party which brings the offence(s) within the guidelines.

12. Relevant convictions are where other party has been convicted of breaching an intervention order made under the Family Violence Protection Act 2008 or Personal Safety Intervention Orders Act 2010 or convicted of family violence related offences set out in Clauses 1, 2, 3 and 5 of Schedule 1 to the Sentencing Act 1991 (Vic) or section 9 and 10 of the Family Violence Protection Act (or equivalent offences in other jurisdictions) committed in the context set out in (iv).
13. Before recommending assistance for clients who have relocated, practitioners will be required to provide evidence that the relevant statutory authority (such as the Victorian Department of Human Services or Victoria Police and equivalent agencies in other jurisdictions) was involved in the relocation. Examples of acceptable evidence would include material provided by the statutory agency or material in an affidavit detailing the nature and extent of involvement of the statutory agency(s) in relocation (which must be more than mere advice to relocate). Mere instructions from a client that an agency endorsed their relocation will not alone be sufficient evidence.
14. Lawyers have an ongoing duty to keep VLA informed of the status of the other party’s legal representation for the purpose of trial funding. Where the other party has previously indicated that they will be legally represented at trial and that party appears at the first day of trial as a self-represented litigant, counsel may only appear for the first day of the hearing. Should a practitioner become aware before the first day of trial that the other party will not be legally represented at the trial, they must notify VLA immediately, and trial funding will be terminated.
15. If assistance for trial has been refused, trial preparation can still be recommended by practitioners. Where the trial goes for longer than the original allocated number of hearing days and further preparation is required to be performed, practitioners may still apply for additional preparation according to the current rules (see 6.7.9) or the uplift fee (6.7.10).
16. Whilst matters in the Magellan list are exempt from the fee ceiling, the matter must continue to meet the relevant guidelines and merits assessment

Examples

The practitioner seeks funding for a one day trial over live with arrangements. All relevant court documents are on the practitioner’s litigation file. The family report is now available and the independent children’s lawyer has expressed an opinion. The independent children’s lawyer is supportive of the client’s case, and the family report concludes the child should spend time in line with the client’s proposed final orders. The relevant affidavit material and the family report makes reference to family violence between the parties. The other party was charged with unlawful assault in relation to the client. The parties finally separated after this incident of family violence. The charges were heard in the Magistrate’s Court on 4 May 2014. The practitioner has subpoenaed the records of Victoria Police which record the following sentence “Without conviction, adjourned to 04/05/2015, to pay $500.00 to Court Fund”. Funding for trial preparation may be recommended. However, the practitioner should not recommend assistance for trial appearance pursuant to (iv). No conviction was recorded and the matter does not satisfy the new trial funding ground.

The practitioner seeks funding for a three day trial over spend time with arrangements. There is a history of family violence between the parties. All relevant court documents including affidavits, the family report and a Form 4 Notice of Child Abuse are on the practitioner’s litigation file. Those court documents demonstrate that client has expressed significant fear for their own safety and the safety of the children. Both the family report writer and the independent children’s lawyer have expressed opinions that support the client’s proposals for spend time arrangements. There is an intervention order against the other party for the protection of the client and the children. The police have previously been involved with the parties and in accordance with their Code of Practice for the Investigation of Family Violence have made a formal referral for the client to a local, external service funded to assist people affected by family violence. Funding for trial preparation may be recommended. However, the practitioner should not recommend assistance for trial pursuant to (vi). The police were not involved in a relocation of the client nor is there a court order permitting relocation to an undisclosed location.

6.6.2 Basis of a recommendation for assistance

Where there has been a recommendation for trial, a practitioner’s file must contain the following: 

• the client’s instructions 
• a brief statement as to the evidence to be relied upon. Where a statement, or piece of evidence, is determinative of a particular issue, that piece of evidence must be readily identifiable, to enable compliance checks by VLA to be conducted in an effective manner 
• a brief statement as to how the matter satisfies the Commonwealth’s merits test including the cost benefit test, together with the issues that remain in dispute and any proposed offers that have been made between the parties.

The file should also contain:

• a copy of the parties’ further and better particulars, affidavits, with relevant parts of evidence that form the basis of the assisted person’s case clearly identified; 
• copies of all reports from third parties (including, but not limited to psychiatric/psychological assessments and family reports); and 
• the opinion of the independent children’s lawyer. Practitioners should canvass the independent children’s lawyer's view and retain the advice (or a file note of it) on file for compliance purposes

Any practitioner who elects to recommend further funding contrary to a third-party opinion (be it an independent children’s lawyer or a report written in compliance with a court order) must have serious regard to the issues in dispute and must provide compelling reasons for doing so. These reasons must be clearly documented on the file and clearly identifiable.

Examples

The practitioner seeks legal assistance for a three-day trial over the issue with whom the child lives. All relevant court documents are on the practitioner’s litigation file. The family report is now available and the independent children’s lawyer has expressed an opinion. The independent children’s lawyer is not entirely supportive of the client’s case, and the family report concludes the child should live with other party. If the practitioner is to recommend further assistance in this matter, a detailed file note would be required, setting out the reasons why aid is being recommended in the face of adverse third-party opinion. Such matters may include (but are not limited to) the following: 

The family report contains weaknesses in its compilation, which lessen its evidentiary strength. These weaknesses may be factual, or relate to matters of opinion, and need to be carefully detailed. 

There should be substantial dispute, not merely disagreement on a small point. For instance, the practitioner may have formed the view the impartiality of the report was unduly influenced by extraneous matters, or influenced by matters which (if the correct weight had been apportioned) would likely persuade a court that a contrary view should be taken.

There is new evidence, which has arisen since compilation of the report/opinion, and this new evidence is both admissible, cogent, and of sufficient weight. It would also be necessary to clearly set out the merit in the practitioners recommendation where it is contrary to the independent children’s lawyer's position.

6.6.3 Extent of legal assistance

Quantum in cases initially assessed as costing less than the client’s available funds under the fee ceiling

A practitioner can recommend assistance for trial if it is anticipated the client’s available funds are under the fee ceiling ($15,510). When a practitioner submits the recommendation for trial via ATLAS the number of hearing days must be completed. The practitioner must not make a recommendation outside the reasonably anticipated range.

Where the case runs longer than the original number of listed hearing days (but less than the applicable fee ceiling), the practitioner may recommend further assistance and seek a further grant. The practitioner must make a file note outlining the reasons for the recommendation, and why the additional time is required to finalise the case. A practitioner’s recommendation for further days must be submitted via ATLAS before any further costs are incurred.

Extensions of assistance in ongoing trials

In cases where extensions of assistance in ongoing trials will result in the cost ceiling being exceeded, a further extension of assistance must be forwarded to VLA for assessment prior to additional over-ceiling costs being incurred. A family law overcap worksheet is required to be completed together with the following:

• advice regarding the issue of hardship (guideline 17.3);
• copy of the last affidavit filed by each party;
• copies of all reports from third parties (i.e. family report, psychological reports);
• the trial plan (Family Court matters).

6.6.4 Cases which will, from outset, exceed the fee ceiling

Matters where the anticipated legal costs of a trial will exceed the applicable fee ceiling cannot be the subject of a practitioner recommendation. Practitioners must submit such applications to VLA for assessment with a completed family law overcap worksheet together with recommended attachments.

The submission must include:

• the urgency of the next hearing date
• the anticipated number of days of trial, including any estimation the court has itself given for the matter
• particulars of witnesses to be called by both sides, and estimated duration of their evidence
• a copy of the trial plan (if applicable) 
• copies of all expert reports 
• details of disbursements to be incurred 
• the chronology including attempts made to settle the matter and details as to the final orders being sought by each party
• any other factors which might affect trial duration (for example, number of parties and intervenors, whether interpreters are engaged and for whom).

In exercising the discretion to extend the grant of legal assistance, VLA may also have regard to:

• whether the applicant has incurred significant additional costs due to special circumstances (referred to in part 15 of the Handbook)
• whether it would be unreasonable to expect the applicant to adequately represent himself or herself due to special circumstances (referred to in part 15 of the Handbook)
• whether the costs have significantly increased through no fault of the applicant’s 
• the multiplicity or complexity of issues in dispute 
• the likelihood of risk to the child’s safety or welfare.

6.6.5 Magellan matters

Cases listed in the Magellan List of the Family Court are exempt from the fee ceiling.

Commentary on Fee Schedule 1M

Fee Schedule 1M, effective 1 November 2011, makes provision for broadbanded family law grants.

All family law matters in the Simplified Grants Process are governed by Fee Schedule 1M of the VLA Handbook. Grants of legal assistance can only be made in accordance with this schedule.

When recommending that assistance or an extension of assistance be granted, practitioners should identify the stage in the schedule that is applicable. The work covered by the stages is largely self-explanatory but the following additional comments should be noted. In particular, with broadbanded stages, it is essential to note on the file the particular hearing dates so that practitioners can assess what parts of a broadbanded grant have been expended and VLA can discern the work done pursuant to each stage.

Broadbanding and fee ceiling

Regard must be had to the fee ceiling imposed on family law matters. Costs allocated within a broadband cannot exceed the fee ceiling. Specific authorisation must be sought to exceed the funding cap setting out the exceptional circumstances. Refer to guideline 17 of the Handbook and the commentary in these Notes.

6.7.1 RDM and substantial issues in dispute

When seeking an RDM grant stage 1(a)(i)), the requirement that there are real issues in dispute must still be met. Although a matter may not be aided to issue proceedings, an RDM grant may be available. Practitioners must still satisfy themselves that the issue in dispute is substantial enough to fund a grant for RDM only, even though the issues may not be sufficient to initiate proceedings.

6.7.2 RDM – Pre-litigation Fee Schedule 1M stage 1(a)(i)

Where an RDM grant has been made and the matter resolves as a result of the RDM process, a fee is available to prepare consent orders.

Where a second RDM conference is required and may reasonably be expected to resolve outstanding issues, the practitioner may proceed to a further conference without an extension of aid. Only the attendance fee will be available for the second RDM.

Should practitioners recommend assistance for RDM and the other party does not attend the conference, the practitioner may claim the lump sum fees relating to taking instructions, and preparing client for RDM conference plus 1 hour’s attendance at the RDM conference.

6.7.3 RDM – Post-litigation

Where a litigation grant has been made and aid is subsequently recommended for RDM (Stage 2(h)), the litigation grant is deferred pending the outcome of the RDM process. If the matter is resolved by RDM, practitioners may render an itemised bill for all work done pursuant to the previous litigation grant.

It is understood that during the RDM process, necessary work that was required in the previous litigation grant may need to be undertaken. However, VLA is of the view that practitioners should only undertake those steps that are critical to court procedure. Practitioners should attempt to avoid major steps in the litigation grant previously given. For example, preparing affidavits, briefing counsel for final hearing.

6.7.4 Consent orders

The fee in stage 1(a)(i) for consent orders can only be claimed if orders were filed in court. Heads of Agreement and orders drafted but not filed do not attract the fee.

As the fee is payable for the work involved in getting the orders made by the court, it can only be charged by the practitioner filing the orders.

6.7.5 Subsequent hearings – Stage 2(f)

The fees are not payable for administrative adjournments.

Where during the course of a proceeding a further interim application must be issued or a response is required, a grant per stage 2(f) may be recommended.

6.7.6 Interim contested hearings – Stage 2(g)

An interim contested hearing is any matter where the court allocates a specific fixture to hear the matter on a contested basis, but which is not the final hearing. That is, any interim matter which could not be dealt with in the Registrars Duty List at a hearing, because the matter was particularly complex. Where a matter has been set aside for an interim contested hearing (no matter how described) the stage 2(g) preparation grant will usually apply. Note that once these stages apply, counsel's fees in stage 4 are automatically available. Fees for instructing are not available.

Practitioners must not recommend legal assistance for interim contested hearings or subsequent interim hearings where a matter has been listed for trial or is at trial stage, but the trial has not proceeded or will not proceed on the basis that one or both of the parties will be unrepresented.

6.7.7 Trial stages – Family Court

Based on the Trial and Case Management Pathway, Fee Schedule 1M provides:

• stage 3(a) for preparation for and the appearance on the first day of trial and
• stage 3(c) with further preparation and fees for the continuation and conclusion of trial days.

6.7.8 Stage of matter limits

Fee Schedule 1M contains both lump sum fees and stage of matter limits (SOML) which are able to be claimed depending upon the particular grant. A SOML is the maximum amount VLA is prepared to pay for each stage of the case, and requires the practitioner to provide an itemised bill of costs for that stage. Itemised bills of costs are also required in lump sum grants where the stage has not been substantially completed. Bills of costs are to be in accordance with the Family Law Scale and are payable at 80% in Family Court and FMC jurisdictions.

6.7.9 Additional Work – Stage 3(e)

A grant of assistance under stage 3(e) cannot be the subject of a practitioner recommendation. To obtain such a grant, you must tick the appropriate box on the checklist and provide details on why the grant is required and how many hours are sought. The grant is only available in exceptional circumstances. A request for additional preparation requires a two-step assessment:

1. The work must be extraordinary. Unless the work is outside the work reasonably expected for preparation for trial, there is no room for paying additional fees. The provision for additional preparation is not designed to increase the fees because they may be considered inadequate (e.g. affidavit longer than usual / conference with witness longer than expected). 
2. The number of hours required to complete the extraordinary work.

6.7.10 Adjourned trials

The preparation for trial fees are fixed against the expected length of trial. In some cases trials are adjourned part heard to another date. The effect of this may be that the preparation no longer reflects the actual length of the hearing. In these cases it is more appropriate to consider an amended grant rather than a grant for additional preparation (i.e. uplift preparation for one day to preparation for more than one day under stage 3(d)).

6.7.11 Funding in child support matters

Separate funding stages have been fixed for child support matters taking into account that these matters follow a different path through the courts.

The fees per stages 1 to 8 are attached to Fee Schedule 1M and include provisions for the initial proceedings, enforcement, appeals and stay applications.