Family law trials and final hearings

There are general principles and rules for lawyers acting for people seeking a grant of legal assistance for family law trials and final hearings. ‘Trial’ also includes preparation for the proposed trial.

General principles

Commonwealth merits test

The Commonwealth merits test is one of the threshold issues that the person seeking a grant of legal assistance must meet. If a lawyer recommends that VLA makes a grant of legal assistance for a family law trial, they must have considered all aspects of the Commonwealth merits test.

Commonwealth cost ceiling

Legal assistance for family law proceedings, other than matters in the Magellan List of the Family Court, are subject to the Commonwealth’s cost ceiling.
Before a lawyer recommends that VLA makes a grant of legal assistance for a family law trial, the lawyer must:

• ask VLA if there are enough funds left under the cost ceiling to complete the stage of the matter for which they seek assistance
  and
• give VLA all tax invoices up to the application for a grant of legal assistance for the trial.

The lawyer must make a file note of the advice they receive from VLA.

If there are not enough funds left within the cost ceiling, the lawyer must apply for ‘over-cap funding’ using the Family law overcap worksheet. A lawyer can never recommend that VLA gives over-cap funding.

Rules for lawyers

If a lawyer recommends a grant of legal assistance for a family law trial, then the lawyer’s case file must contain clear notes about the following:

• their client’s instructions
• a brief statement of the evidence to be relied on (and, if a statement or piece of evidence determines a particular issue, then the file note must readily identify the statement or evidence so that VLA can audit the file for compliance)
• a brief statement of the lawyer’s opinion about how the matter meets the Commonwealth’s merits test (including the cost/benefit test)
• a statement of the issues that are in dispute
• any offers that have been made between the parties to the dispute.

The lawyer’s file should also contain the following documents:

• a copy of the parties’ affidavits, clearly identifying the relevant parts of the evidence forming the basis of their client’s case
• copies of all 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 recommends, or seeks, that VLA makes a grant of legal assistance or further assistance, contrary to a third-party opinion (whether of an independent children’s lawyer or of a welfare report), then the lawyer must both:

• seriously consider the issues in dispute
• clearly document and identify on their file compelling reasons for acting contrary to that third-party opinion.

Examples

A lawyer seeks a grant of legal assistance for a three-day trial about with whom a child should live. All the relevant court documents are on the lawyer’s litigation file. The family report is now available and the independent children’s lawyer has expressed an opinion. The independent children’s lawyer does not completely support the lawyer’s client’s case and the family report concludes that the child should live with the other party.

If the lawyer wishes to recommend that VLA make a further grant of legal assistance in this matter, then they must write a detailed file note about their reasons for recommending further assistance contrary to third-party opinion. Their reasons may include the following:

• The family report contains weaknesses which lessen its evidentiary strength. The weaknesses may be factual or relate to matters of opinion, but the lawyer must explain them in detail. If the lawyer disputes any fact or opinion, then the dispute must be substantial and not just a disagreement on a minor point. For example, the lawyer may consider that the report is not impartial because it has been unduly influenced by irrelevant matters or by matters which have been given too much weight.
• New evidence has emerged since the report or opinion was made. The new evidence is admissible, strong and persuasive.

The extent of a grant of legal assistance

Costs estimated as less than the funds available under the cost ceiling

A lawyer can recommend that VLA makes a further grant of legal assistance for the trial if the lawyer estimates that the cost of a family law trial will be less than the remaining funds available to the assisted person under the Commonwealth’s cost ceiling.

The lawyer must specify the number of hearing days for which they seek assistance. They must not recommend a number of days outside the reasonably anticipated range.

If the case runs for a longer time than originally estimated (but still less than the relevant cost ceiling), then the lawyer may recommend that VLA grants further assistance. To support the application for further assistance, the lawyer must outline

• the reasons for further assistance
  and
• the extra time it may take to finalise the case.

Further assistance beyond the cost ceiling

If further assistance in an ongoing trial will result in exceeding the Commonwealth’s cost ceiling for the matter, then all lawyers (either through the standard grants assement process, or the simplified grants assessments process) must give VLA a written request for further assistance before any costs above the cost ceiling are incurred.

The written request must contain all relevant details, including:

• how the matter meets the factors in Commonwealth family law guideline 18.3
• the number of days required
• the reasons why they have gone beyond the original time estimate
• the merits justifying overcap funding, including the final orders each party seeks
• any necessary extra disbursements
• copies of any relevant expert reports (for example, a family report, psychological reports).

Costs estimated as above the cost ceiling

If it is likely from the outset that the estimated legal costs of a family law trial will exceed the relevant cost ceiling, a lawyer cannot recommend that VLA grants further assistance. The lawyer must give the application to VLA for assessment.

The application must include:

• the date of the next hearing
• a copy of the orders listing the matter for final hearing and the estimated duration of the final hearing
• the anticipated number of days of the trial, including any estimation the court has given for the matter
• particulars of witnesses to be called by both sides and the 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 of the matter, including attempts to settle the matter and details of the final orders each party seeks
• details of any other factors that might affect the length of the trial (for example, the number of parties and of any third parties intervening, whether interpreters are necessary and for whom).

In deciding whether to make a grant of legal assistance, VLA may also consider:

• whether the applicant has incurred any significant extra costs because of any of the Commonwealth’s special circumstances
• whether it would be unreasonable to expect the applicant to adequately represent themselves because of any of the Commonwealth’s special circumstances
• whether the costs of the matter have increased significantly through no fault of the applicant
• the number or the complexity of the issues in dispute
• whether there is a likely risk to the child’s safety or welfare.