Notes on Guideline 5.6 – advice and negotiation for children in child support and child maintenance matters

(a) Eligibility criteria

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

Criterion A and B

Examples of where VLA may consider it appropriate for a child litigant to participate in the negotiations are where:

• the child litigant is either the parent in a dispute, or is over 17

and

• the parent is genuinely unwilling or unable to do so.

The child must be sufficiently mature to give instructions to a lawyer. Part 5.1.1of VLA’s practice standards provide additional information in relation to representing children in family law matters, including assessing capacity to give instructions and taking instructions from very young, traumatised and/or intellectually disabled children.

Criterion C and D

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 E

Refer to the notes linked to the following threshold tests:

• forum test
• Commonwealth merits 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 following:

• the financial position of the parties;

Where there is no apparent capacity of the payer to pay child support or maintenance or the application will result in only a slight increase to a child support or maintenance order, this may not warrant funding, given the expected costs of legal action.

Where child support or maintenance sought is for only a short period (e.g. when a child is about to turn 18) 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

Discharge or vary orders

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

(c) Grants assessment process

Applications under this guideline must be submitted VLA Atlas using the ‘VLA Assessed – Child Support’ template, making the following selections:

• in the matters screen, select ‘child support’ under matter group and then the appropriate matter type
• under costs and disbursements, select the required funding, depending on matter type.

VLA Assessed templates require the lawyer to detail how the matter meets the appropriate guideline and the Commonwealth merits test. If the lawyer needs to provide additional information, this should be done by using the ‘submit correspondence’ function.

(d) Documentary requirements

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

• why it is appropriate for the child to participate in negotiations, including the lawyer’s assessment that the child is sufficiently mature to give instructions

and

• why the parent is unable to make the application

and

• advice that no previous applications have been submitted in relation to the current dispute

and

• how each of the thresholds tests are met

and

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

and

• where enforcement is sought, details of the period of non-payment, amount of arrears and proposed means of enforcement.

The file should also contain all other relevant notes, supporting evidence and documents, including documentary proof of means if the applicant is an adult child.

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.