Notes on Guideline 5.7 – litigation 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 are met.

Criterion A and B

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

• the child litigant is the parent in a dispute or the child litigant 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 5.1.1 of 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

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 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.

(b) Other mandatory requirements

Discharge or vary orders

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

Enforcement

Where enforcement of arrears is sought, consider:

• the nature of the arrears e.g. legal assistance would not be available to enforce payment of private school fees
• amount of the arrears e.g. arrears of $1000 or less will not justify the cost of taking action
• whether it is registered for collection by Services Australia (Child Support) and should be left in the hands of the agency, and
• if there are avenues to secure payment from the party who is in arrears.

The following provides additional guidance in applications for assistance for enforcement proceedings:

• the request for legal assistance should be made without unreasonable delay after the orders have been contravened;
• the person requesting assistance for enforcement proceedings must seek a costs order against the other party from the court. For more information, refer to costs recovery;
• we treat grants of assistance for enforcement proceedings as a new matter for the purposes of family law cost management. This means that we will not include the amount of the grant when calculating the cost ceiling for the substantive matter (see Family law costs management).

(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
• in the costs and disbursements screen, 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 litigation, including the lawyer’s assessment that the child is sufficiently mature enough to give instructions

and

• why the parent is unable to make the application

and

• how each of the thresholds tests is met

and

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

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.

(e) Fees and billing

Stage 2 of fee table 4.1 sets out the fees available and the conditions attaching to grants under this guideline. The following fee stages are available under this guideline, depending on the grant recommended:

• Stage 2C – Initiating litigation, Magistrates’ Court
• Stage 2D – Transfer from state Magistrates’ Court to FCFCOA
• Stage 2E – Initiating litigation, FCFCOA
• Stage 2F – Subsequent hearing, FCFCOA
• Stage 2G – Interim contest hearing, FCFCOA
• Stage 2I – Application for contravention, enforcement or contempt proceedings.