Victoria Legal Aid
New Family Law guidelines and procedures
New Condition for Family Law Funding
Applicants for legal assistance who are found by a court within the last 12months to have contravened one of the following:
- a Federal Magistrates’ 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 or will have theirgrant of legal assistance removed.
This applies to all new applications and extension requests submitted on or after 8 April 2013.
Exceptions:
This does not apply to Independent Children’s Lawyers, special medical procedures involving children, annulments and international child abduction matters.
Assessment:
An additional question has been inserted into the relevant application templates asking whether the applicant has contravened any court orders.
If the answer to this question is ‘Yes’, the application will be refused and any existing grants will be terminated. If the answer to this question is ‘No’, the application for funding will follow the usual assessment process.
Frequently asked questions:
Does the new contravention criteria apply only to contraventions of orders involving the parties to the family law dispute?
No, any contravention within the last 12 months is relevant for the purpose of the family law guidelines, regardless of whether the other party to the contravened order is involved in the current family law proceedings. For example, where an applicant for legal assistance has been found to have contravened an intervention order against an individual who is not a party to the family law proceedings (such as a neighbour) this contravention is still considered to be relevant for the purpose of the family law guidelines.
Will the contravention condition apply to family law matters that already have aid in place?
The new condition will apply to all new applications and extension requests submitted on or after 8 April 2013. Should a further extension be sought on an existing file, and VLA is advised that the applicant has contravened a relevant court order, the request will be refused and assistance will be terminated.Practitioners must advise VLA immediately if they become aware that their client has contravened a relevant court order and is no longer eligible for funding.
How is ‘within the last 12 months’ defined?
The court must have made a finding within 12 months prior to the date the application for legal assistance is signed by the applicant.
Does the contravention condition apply to all family law guidelines?
The contravention condition does not apply to the following family law guidelines:
- Guideline 5 – independent representation of children;
- Guideline 10 – special medical procedures involving children;
- Guideline 12 – nullity of marriage; and
- Guideline 16 – international child abduction matters.
Does the contraventioncondition apply to Roundtable Dispute Management?
Yes, the new condition applies to all family law guidelines with the above exceptions.
Where an applicant is funded by VLA to respond to allegations of contravention and the court makes a finding of contravention, will assistance be terminated?
VLA will still provide assistance to respond to an allegation of contravention where the guideline and the merits tests are met. If the court makes a finding that there has been a contravention without reasonable excuse,the respondent will not be eligible for further assistance andwill have their existinggrants of legal assistance terminated.Practitioners have an ongoing duty to ensure that their clients continue to meet the guideline requirements for legal assistance.
What if the client is facing breach or contravention proceedings but no finding has been made by the court?
The new condition only applies where there is a finding by the court in the last 12 months. If the court has not made a finding that the applicant has contravened or breached a court order, the applicant will still be eligible for legal assistance subject to meeting the other criteria in the family law guidelines. Practitioners must advise VLA immediately if they become aware that the court has made a finding and is no longer eligible for funding.
New Criteria for Roundtable Dispute Management (RDM)
In addition to existing criteria, VLA will only provide a grant of legal assistance for early intervention and dispute resolution (RDM) where
- the person is a priority client.
A priority client is a person:
- with an intellectual disability, diagnosed acquired brain injury, diagnosed psychiatric or psychological illness, diagnosed serious health condition or serious physical disability, which makes that person unable to participate effectively in family dispute resolution without legal representation; and/or
- who experiences cultural barriers, which make that person unable to participate effectively in family dispute resolution without legal representation; and/or
- who is experiencing homelessness; and/or
- who identifies as an Indigenous Australian; and/or
- who has experienced or is at risk of experiencing family violence; and/or
- whose child has experienced or is at risk of experiencing child abuse or family violence; and/or
- who is illiterate; and/or
- who has a matter currently before the court where the proposal or conduct of a party substantially prejudices the ability of a child to maintain a meaningful relationship with one or both parents.
This applies to all new applications and extension requests submitted on or after 8 April 2013.
Referrals
Practitioners needing to refer clients who are not priority clients to other family dispute resolution services may wish to use the quick search links at Family Relationships Online find a Family Relationship Centre (FRC) or other Family Dispute Resolution Provider.
Frequently asked questions:
Does this apply to RDM grants that are already in place?
No, the new priority client criteria only applies to all new applications and extension requests submitted on or after 8 April 2013.
Does this apply to all family law guidelines?
No, the priority client criteria only appliesto the guidelines for early intervention and dispute resolution.This includes spousal maintenance and adult child maintenance matters that are to proceed to RDM.
What information do I need to obtain in order to demonstrate that my client has ‘an intellectual disability, diagnosed acquired brain injury, diagnosed psychiatric or psychological illness, diagnosed serious health condition or diagnosed serious physical disability’?
Practitioners are required to obtain a letter from the applicant’s psychiatrist, psychologist, medical specialist or general practitioner (as applicable) confirming the diagnosis and outlining treatment.
In order to be eligible, the applicant’s disability, illness or condition must prevent them from participating effectively in RDM without legal representation.
What is defined as ‘cultural barriers’?
To meet this criteria, the cultural barriers experienced by the applicant must make them unable to participate effectively in family dispute resolution without legal representation. Examples are:
- Applicants who have recently arrived inAustralia as refugees or humanitarian entrants.
- Applicants from a newly arrived community, particularly where there is a fear of government and statutory agencies, who do not have English as a first language and have low levels of English language proficiency.
Does the new ‘priority client’ criteria apply to grants for RDM litigation intervention, where the matter has a current litigation grant of assistance in place?
Yes, the new criteria applies to all new applications and extension requests for both Stage 1 RDM and Stage 2(h) RDM litigation intervention submitted on or after 8 April 2013. Therefore, matters that have already been before a court but are now deemed appropriate for RDM litigation intervention must meet the new priority client criteria.
Does my client still need to meet the ‘priority client’ criteria if the other party to the proceedings has already met the requirements and obtained funding for RDM?
Yes, all applicants for legal assistance for RDM must meet the ‘priority client’ criteria to be eligible for that assistance.
Where the proposal or conduct of a party substantially prejudices the ability of a child to maintain a meaningful relationship with one or both parents, does the matter need to be before the court to meet the ‘priority client’ criteria for RDM?
Yes, this facilitates parties who may not meet any of the other ‘priority client’ criteria, but who are seeking an RDM grant for litigation intervention, where the matter is currently before the court.
Is a respondent to afamily violence intervention order a priority client for the purpose of RDM?
It is necessary to assess the applicant for legal assistance against each of the categories listed under the definition of ‘priority client’. A person ‘who has experienced or is at risk of experiencing family violence’ must be a person claiming to be a victim of family violence. However, if the respondent (as the applicant for legal assistance) were to admit to conduct that falls within the definition of family violence in the Family Law Act 1975, then they would be a ‘priority client’for the purpose of the guideline as ‘a person whose child has experienced or is at risk of experiencing child abuse or family violence’.
The Commonwealth merits tests always apply. Therefore,an applicant for legal assistance who admits to committing family violenceshould be seeking reasonable arrangements to spend time with the children, with appropriate restrictions, in order to meet the ‘reasonable prospects of success’ test and be eligible for a grant of legal assistance. This means that the applicant could not deny their use of family violence once assistance is granted for RDM as they would no longer qualify under the ‘child at risk’ priority client category.
What happens where only one party is a ‘priority client’ and is eligible for a grant of legal assistance for RDM?
RDM case managers always assess a matter for suitability for family dispute resolution. The case manager will consider whether each of the parties has the capacity to negotiate children’s issues. If one party is not eligible for a grant of legal assistance for RDM as they are not a ‘priority client’, and they can not afford to pay for a lawyer privately, the case manager may refer this party to the Family Law Legal Service (FLLS). If a party refuses FLLS assistance or FLLS representation can not be made available, the RDM case manager would make an assessment about the suitability for continuing with family dispute resolution.
Does my client automatically qualify as a ‘priority client’ if they have a ‘diagnosed serious health condition or serious physical disability’?
The test is whether that person is ‘unable to participate effectively in family dispute resolution without legal representation’ due to that condition or disability. This requires a separate assessment and not all persons with serious health conditions or physical disabilities will necessarily meet this test.
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