Guideline 18 – Family law trials and final hearings

Guideline 18 – Family law trials and final hearings

Victoria Legal Aid 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*;
  1. 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
  1. 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
  2. the other party is represented either privately, through pro bono assistance, or pursuant to (ii) – (vi) above.

Where the applicant is not in receipt of a grant of assistance due to having breached court orders within the last 12 months****, the applicant cannot be funded under (vii) above.

This does not apply to independent children’s lawyers for whom Family Law Guideline 5 will continue to apply.

* For the purpose of this guideline, family violence related offences are offences set out in Clauses 1, 2, 3 and 5 of Schedule 1 to the Sentencing Act 1991 (Vic) and section 9 and 10 of the Family Violence Protection Act 2008 (Vic) (or equivalent offences in other jurisdictions) committed in the context set out in (iv). Practitioners are required to sight the relevant criminal records and relevant related documentation and have a file note confirming that the other party has a conviction recorded for a family violence related offence(s) and have on file material in an affidavit or family report confirming that the offence(s) were committed in circumstances of family violence as set out in (iv). The file note 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 this guideline.

** Practitioners are required to sight the relevant criminal records and relevant related documentation and have a file note confirming that the other party has had a conviction recorded for breach of an intervention order and have on file affidavit material or family report confirming that the offence(s) were committed in circumstances of family violence as set out in (v). The file note must include confirmation of the offence(s) and that a conviction was recorded for that offence(s), 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 this guideline.

*** Practitioners are 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, being either 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).

**** Not in receipt of a grant of assistance due to having breached court orders within the last 12 months refers to Commonwealth family law and child support guideline 2 – litigation. Guideline 2 provides that applicants for legal assistance who are found by a court within the last 12 months to have contravened one of the following:

  • a Federal Circuit Court or Family Court of Australia order without reasonable excuse
  • a family violence safety notice or conditions of bail relating to family violence offences
  • an intervention order made either under the Family Violence Protection Act or Personal Safety Intervention Orders Act 2010
  • will not be eligible for a grant of legal assistance under guideline 2 or will have their grant of legal assistance removed.

Part heard matters

This rule applies to all applications for assistance received on or after 1 September 2014 for trials listed for hearing on or after 1 September 2014. Where a trial is scheduled partly before 1 September and recommences on or after 1 September assistance may be available for that portion of the trial conducted on or after 1 September 2014.

More information

For more information and guidance on interpreting and applying this guideline see these resources: