Guideline 2 – litigation

Guideline 2 – litigation

2.1 – parenting orders

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 2008 or Personal Safety Intervention Orders Act 2010

will not be eligible for a grant of legal assistance under this guideline or will have their grant of legal assistance removed.

2.1.1 – litigation following early intervention and dispute resolution grant

Victoria Legal Aid (VLA) may provide assistance for litigation following an early intervention and dispute resolution grant where:

  • a Section 60I Certificate has been issued by RDM or other family dispute resolution (FDR) practitioner (please refer to the Notes on the Guidelines as to when a Section 60I Certificate will be acceptable from an FDR practitioner other than RDM), which identifies the reason for the certificate being issued as being either:
    • FDR unsuitable (sub paragraph (b))(Only a Section 60I Certificate from RDM will be acceptable)
    • parties made a genuine effort to resolve the issue (sub paragraph (c))
    • FDR not appropriate to continue after it has commenced (sub paragraph (e))
    • a party did not make a genuine effort to resolve the issues, provided that the applicant for assistance is not the party who did not make a genuine effort to resolve the dispute (sub paragraph (d))
    • one party refused to participate, where the applicant for assistance is not the party who refused to participate (sub paragraph (a)) (only a Section 60I Certificate from RDM will be acceptable)
    and
  • there is a substantial issue in dispute (as defined in 1.1 – Parenting orders in Guideline 1 – Early intervention and dispute resolution)
    and
  • the matter is a ‘priority matter’.

'Priority matter'

A 'priority matter' is a matter where a child's wellbeing or safety is at risk evidenced by one or more of the following factors:

  • the child that is the subject of the proceedings has been or is at risk of harm from being subjected to, or exposed to, abuse, neglect or family violence*
  • the capacity of a party to care for the child is alleged to be affected by a physical health problem, a mental health problem or a substance abuse problem
  • the proposal or conduct of a party substantially prejudices the ability of a child to maintain a meaningful relationship with one or both parents.

Funding in such circumstances would also extend to parties against whom such allegations have been made.

For example, a party against whom an allegation of family violence, abuse or neglect has been or is likely to be made will be eligible for a grant of assistance subject to means and merits tests. Similarly, a party who has or is likely to be alleged to have a physical health problem, mental health problem or substance abuse problem putting a child’s wellbeing or safety at risk will also be eligible for a grant of assistance subject to means and merits tests.

If funding is sought under the 'priority matter' guideline, lawyers must ensure that the orders sought in their Application or Response and Affidavit material are consistent with the claim that the child’s wellbeing or safety is at risk because of one of the factors listed.

Where the matter does not satisfy the above criteria relating to section 60I certificate, the matter would only be funded for litigation under guideline 2.1.2 below or if the applicant meets the special circumstances guideline.

*Where assistance is granted under this priority matter guideline to the party alleging abuse, neglect or family violence, the lawyer must file a Form 4 Notice of Child Abuse or Family Violence.

2.1.2 – litigation without prior early intervention and dispute resolution grant

VLA will only provide assistance for litigation without a prior early intervention and dispute resolution grant, and without the need to provide a Section 60I Certificate, where the matter is a priority matter and:

  • there is a substantial issue in dispute
    and
    • the matter is an 'urgent matter'
      or
    • RDM is not appropriate because there are current reported allegations of child abuse, or investigations or court proceedings relating to child abuse are currently taking place (in such instances the practitioner must file a Form 4 Notice of Child Abuse or Family Violence)
      or
    • a state child protection order is in place and the Department of Human Services (DHS) has recommended that legal proceedings be issued in the family law jurisdiction for orders to be made on lapsing of the child protection order (see paragraph 2.1.4).

Examples of an 'urgent matter' are:

  • the matter relates to recovery of a child
  • the applicant’s safety or the child’s safety or welfare is at immediate risk and a court order must be obtained to ensure the safety of the child or applicant
  • there is an immediate risk of removal of a child from Australia or to a remote geographic region within Australia
  • other exceptional circumstances exist that require urgent court orders.

2.1.3 – recovery of a child

VLA considers that applications for recovery of a child are appropriate under VLA’s guidelines where:

  • 'live with' orders are in place and the parent with whom the child usually lives in accordance with the orders seeks funding to apply for orders to have the child returned
  • 'live with' orders are not in place but a parent can establish a clear status quo of the child living with them and that parent seeks funding for orders to have the child returned. VLA expects that such a case would usually be funded under cover of a substantive application for parenting orders
  • 'time with' orders are in place and a 'contact parent' seeks funding for orders to have the child brought back into the jurisdiction in which the contact parent lives; that is, the other party has absconded with the child.

In all other instances, a contravention/enforcement application is deemed to be the appropriate course of action. Funding for such applications will only be provided where the matter satisfies the contravention/enforcement guideline.

Please refer to Guideline 11 – Recovery, location and information orders.

2.1.4 – if there are State child protection orders in place, or court proceedings have been instituted under a State child welfare law

VLA may make a grant of legal assistance for a court application for a parenting order under the Family Law Act 1975 even if, in respect of the child, there are:

  • current child protection orders in force under a State law
  • court proceedings under a State child welfare law currently on foot.

The relevant guideline for a litigation grant must be satisfied.