Notes on Guideline 5.3 – advice and negotiation for adults in child and adult child maintenance matters

(a) Eligibility criteria

Assistance may be available under this guideline where criteria A, and B, and C are met.

Criterion A

The advice and negotiation grant is intended as a first step in attempting to resolve a dispute with minimal legal intervention. For that reason, a grant for advice and negotiation can only be the first grant recommended in a dispute, and can only be granted once in a dispute.

Criterion B

The lawyer considers that the issues in dispute may be identified and/or resolved through exchange of information between the parties, and to advise the client about the merits of potential proceedings.

Criterion C

Refer to the notes linked to the following threshold tests:

• forum test
• Commonwealth merits test
• means test
• contravention test.

and to the following supplementary information.

Commonwealth merits test and child support matters

When assessing the cost/benefit of an application for assistance under this guideline, the lawyer must take into account:

• the financial position of the applicant, the respondent and the children
• in adult child maintenance, the child’s needs and capacity to self-support
• capacity of the payer parent to pay child maintenance or if the application will result in only a slight increase to a child maintenance, this may not warrant funding, given the expected costs of legal action
• where the dispute relates to only a short period of the child support assessment or before the child support case ends (e.g. when a child is about to complete their education) this may not justify the cost of taking action
• where the amount of the arrears or debt sought is $1000 or less this will not justify the cost of taking action.

(b) Other mandatory requirements

Where a party is not a parent of the child

Where the person seeking assistance is not a parent of the child, the lawyer must be satisfied that the person meets the requirements set out in section 66F of the Family Law Act 1975 (Cth).

Discharge or vary orders

Refer to the notes linked to the definition of significant change in circumstances.

(c) Grants assessment process

Applications for assistance under this guideline must be lodged via ATLAS using the ‘simplified process – child support’ template, making the following selections:

• in the matters screen, select ‘maintenance’ under matter group and then the appropriate matter type
• under ‘court hearings’, select ‘no court proceedings’
• under costs and disbursements, select the required funding, depending on the matter type.

(d) Documentary requirements

The lawyer’s file must contain a file note that makes clear:

• how the matter meets each of the threshold tests

and

• where discharge or variation is sought, how the significant change in circumstances definition is met

and

• where the person seeking assistance is not a parent of the child, how they met the requirements of section 66F of the Family Law Act 1975 (Cth).

The file should also contain all other relevant notes, supporting evidence and documents.

Lawyers are also encouraged to complete a family law worksheet.

(e) Fees and billing

Stage 1 of Fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline. The following provides additional information.

Fees for this grant can only be claimed where the advice and negotiations take place prior to litigation (ie this is the first grant in the dispute).

The following documents to support claims made under the grant should be retained on the file:

• consultations with the client, including appointments and telephone attendances
• advice provided to client both oral and written
• negotiations conducted with the other party or their lawyer, including telephone attendances and letters
• letter to the client advising of the outcome of the negotiations and details of any further action to be taken
• a copy of consent orders filed with the court, where applicable.