Table of contents
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Table of contents
- 1 – Introduction
- 2 – Types of matters that may be assisted
- 3 – Criminal law guidelines
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4 – Commonwealth family law and child support guidelines
- Guideline 1 – priority for urgent matters
- Guideline 2 – family dispute resolution services
- Guideline 3 – independent representation of children
- Guideline 4 – parenting orders
- Guideline 5 – child maintenance and child support
- Guideline 6 – spousal maintenance
- Guideline 7 – arrears of spousal or child maintenance or child support
- Guideline 8 – parentage
- Guideline 9 – special medical procedures involving children
- Guideline 10 – recovery, location and information orders
- Guideline 11 – divorce and nullity of marriage
- Guideline 12 – property
- Guideline 13 – assistance after final court orders
- Guideline 14 – appeals
- Guideline 15 – enforcement of court orders
- Guideline 16 – contempt of court and breach of court orders
- Guideline 17 – international child abduction matters
- Guideline 18 – family law costs management
- Family law trials and final hearings
- Jurisdiction of family law proceedings
- 5 – Commonwealth civil law guidelines
- 6 – State family guidelines
- 7 – State civil law guidelines
- 8 – Standard grants assessment process
- 9 – Simplified grants assessment process
- 10 – Referral and practitioner panels
- 11 – Means test
- 12 – Commonwealth merits test
- 13 – State reasonableness test and interests of justice test
- 14 – Special circumstances
- 15 – Applying for a grant of legal assistance
- 16 – Decision to grant or refuse assistance
- 17 – Reconsideration and review of decisions
- 18 – Standard terms and conditions
- 19 – Contributions and overdue payments
- 20 – Abandoning legal assistance
- 21 – Finalising grants of legal assistance
- 22 – Allocation of work to lawyers and law firms
- 23 – Payments to lawyers and service providers
- 24 – Compliance reviews
- 25 – Privacy protection
- 26 – Complaints and feedback
- Topic index
- Invoices, worksheets and forms
- Contact us
Guideline 4 – parenting orders
Victoria Legal Aid (VLA) may make a grant of legal assistance to a person for:
- a court application for a parenting order under the Family Law Act 1975
- a court application to discharge or vary a parenting order or a registered parenting plan under the Act.
4.1 – assistance for parenting orders
A grant of legal assistance for a court application for a parenting order may be provided if VLA is satisfied that:
- there is a dispute about a substantial issue (see definition below)
and - any of the following circumstances apply:
- the party has a certificate under section 60l of the Family Law Act in relation to the dispute
- participation in family dispute resolution services is inappropriate in accordance with Commonwealth family law guideline 2.
Children applying for a parenting order
If a child applies for a grant of legal assistance for a court application for a parenting order, VLA will process the application through its standard grants assessment process, even if the child’s lawyer is a member of a section 29A practitioner panel.
What is a ‘substantial issue’?
A ‘substantial issue’ is one which is likely to have a significant impact on either:
- the child’s safety or welfare
- the child’s right to spend time with their parents or with other significant people.
Examples of a ‘substantial issue’ include disputes about:
- with whom a child is to live
- whether a party should be allowed to move to another state or country
- whether a child should spend no time with one parent
- whether the time a child spends with a party should be supervised
- whether a child should be able to stay overnight , rather than just spend time with a party during the day.
Examples of disputes that VLA does not consider to be substantial:
- who should pay for the travel costs associated with a child spending time with a party
- which school a child should attend
- with whom a child spends birthdays, Christmas or other significant celebrations
- proportionately small changes to the number of hours a child spends with a party.
If there are State care or protection orders in place or court proceedings under 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 even if there are, in respect of the child:
- current care or protection orders in force under a State law
or - court proceedings under a State child welfare law currently taking place.
4.2 – assistance for applications to discharge or vary parenting arrangements
VLA may make a grant of legal assistance for a court application to discharge or vary a parenting order or a registered parenting plan under the Family Law Act if VLA is satisfied that:
- there is a dispute about a substantial issue
and - the party has a certificate under section 60I of the Family Law Act in relation to the dispute or participation in family dispute resolution services is inappropriate in accordance with Commonwealth family law guideline 2.
- and any of the following apply:
o there has been a material change in circumstances since the parenting order was made or the parenting plan was registered
o the court application is imperative.
However, if the person seeking a grant of legal assistance caused the ‘material change in circumstances’, then, in deciding whether it is appropriate to provide a grant of legal assistance, VLA must consider the circumstances surrounding that change.
What is a ‘material change in circumstances’?
A ‘material change in circumstances’ is a change which, if it had occurred before the previous orders were made, would have resulted in significantly different orders being made.
Examples of a ‘material change in circumstances’ include if:
- the mental health or physical health of a party has deteriorated so much that it affects the child’s safety or welfare
- a party has spent no time with a child (when they could have) for so long that the child no longer has a relationship with that party
- a party has re-partnered and the new partner is a risk to the safety and welfare of the child
- a child is now old enough to express an opinion about the current parenting orders and the child’s opinion is now obvious from extreme behaviours such as repeated running away or self-harm
- for a significant period of time, a child has not been living with the party named in the parenting order or parenting plan
- there is a likelihood of violence, or physical or mental harm, to the applicant or a child
- a child has been or is at risk of being removed from the party that they live with
- a child has been or is at risk of being removed from the jurisdiction of the court
- the party the child lives with needs to move permanently overseas, interstate or elsewhere with the child, if consent is unreasonably refused by another person.
Examples of changes in circumstances that VLA does not consider to be ‘material’:
- the mere passing of time since the original orders were made
- one party has re-partnered and the new partner poses no risk to the safety and welfare of the child
- one party is now employed and is using child-care services
- a child is now old enough to express an opinion about the current parenting orders and the child’s opinion is not shown by any extreme behaviours.
4.3 – parties who are not parents
If VLA makes a grant of legal assistance for a court application for a parenting order or to discharge or vary a parenting order or a parenting plan, then, usually, the grant is to one of the parents of the relevant child. However, VLA may provide a grant of legal assistance to a party who is not a parent in court proceedings relating to a parenting order under the Family Law Act if either:
- the person is significant to the care, welfare and development of the child
- VLA considers it to be in the child’s best interests.
For example, if the child’s safety is at risk, then it may be in the child’s best interests for VLA to provide a grant of legal assistance to a third party.
VLA considers that any adult who has primary care of the child or who spends substantial time with the child has standing to intervene as a third party.
If there are State care or protection orders in place or court proceedings under State child welfare law occurring
Documentary requirements
Applications under this guideline are within the simplified grants assessment process or the standard grants assessment process.
Standard grants assessment process
Lawyers or other applicants seeking a grant of legal assistance via the standard grants assessment process should forward all of the following documents to VLA for assessment:
- a completed VLA application form
- the client’s instructions (if the application is made via a lawyer)
- a statement of the current parenting arrangements and the issues that are in dispute
- a statement of the lawyer’s opinion about how the matter meets guideline 4
- a copy of a certificate under section 60I of the Family Law Act or a statement of why family dispute resolution is not suitable
- where a matter is already before the court or the application is to vary existing orders, a copy of the existing orders and the parties’ affidavits, clearly identifying the relevant parts of the evidence forming the basis of their client’s case,
- copies of any relevant reports from third parties (including any psychiatric and/or psychological assessments and family reports)
- relevant proof of means.
Simplified grants assessment process
Lawyers seeking a grant of legal assistance via the simplified grants assessment process should submit a completed simplified VLA application form and a family law checklist only after ensuring that the following documents are retained on file unless they are requested by VLA for assessment:
- their client’s instructions
- a statement of the current parenting arrangements and the issues that are in dispute
- a brief statement of the lawyer’s opinion about how the matter meets the Commonwealth’s merits test and guideline 4, if this is not clear from other information on the file
- a copy of a certificate under section 60I of the Family Law Act or a statement of why family dispute resolution is not suitable
- relevant proof of means.
The lawyer’s file should also contain the following documents:
- where a matter is already before the court or the application is to vary existing orders, a copy of the existing orders and the parties’ affidavits, clearly identifying the relevant parts of the evidence forming the basis of the client’s case
- copies of any relevant reports from third parties (including any psychiatric and/or psychological assessments and family reports)
- the opinion of the independent children’s lawyer (if relevant).
If a lawyer chooses to recommend, or seek, that VLA makes a grant of legal assistance or a further grant of legal assistance contrary to a third-party opinion (whether of an independent children’s lawyer or of a family report), then the compelling reasons for doing so must be clearly documented and identified on their file.
Lawyers are also encouraged to complete a family law merits worksheet and a proof of means worksheet for their file.