Having accepted a number of these grants this year, I am reviewing what I have learnt about these very difficult matters, and share this here in the hope that it might assist others also operating in this space, or considering doing so.
The best place to search for information about this area of practice is the VLA Handbook at:
https://www.handbook.vla.vic.gov.au/41-family-violence-and-cross-examination-parties-scheme
The most important factors to have clearly in mind from the outset:
- Appreciate the context of the grant.
These grants only arise where one or both parties are self-represented, there is a background of family violence, and there is the potential for a self-represented party to be in the position where they will be required to cross-examine the alleged perpetrator or victim of family violence.
The court has determined that this is inappropriate and made a ban on such cross-examination. A s102NA grant is made for the unrepresented party to have legal representation during the hearing to undertake the cross-examination on their behalf.
If there is a final IVO then making the order is mandatory, if not then there is a discretion for the court to grant such an order.
- What happens when a s102NA grant is made
The funding for the scheme is provided by the Commonwealth but administered by Victoria Legal Aid (VLA). Following the making of a s102NA order, the party benefitting from this order must make an application to VLA. VLA then offers the referral of each matter to their panel of practitioners who undertake matters on their behalf. This is not necessarily certain to result in a practitioner being appointed. I have been involved in matters where the time frame and length of the hearing resulted in no practitioner accepting the offer for referral.
The referral is accepted by a practitioner knowing only whether the matter involves parenting or financial matters, the date of the final hearing and the number of days that the trial is anticipated to take. The most recent order is provided once the referral has been accepted, thereby providing some additional information. Nothing at that stage indicates the issues in dispute, the complexity of the matter, or the nature of the parties involved.
- The goal of these grants
The purpose of these matters is to avoid cross-examination between alleged victims and perpetrators of family violence.
The main goals for a practitioner accepting such a referral is to support the party to comply with the directions of the court required to get the matter to trial, and to obtain the services of a barrister to undertake cross-examination during the trial.
The timing of the referral of the grant impacts significantly on both of these tasks. In my experience these grants are often made in the lead up to the final trial following a long journey along the litigation pathway. There are often deadlines for the filing of material fast approaching, and clients who have been significantly impacted by the circumstances of their matter and the litigation up to that point. In my experience there is often very limited time to attend to these matters, and this requires considerable collaboration between practitioner, counsel and the client.
- Limitations of the funding
The grant of aid in these matters is very limited. A careful consideration and complete understanding of the Scheme and the matters set out in the VLA Lawyers Handbook is essential.
For those familiar with other VLA grants I make the following comments:
• the grant is similar to that provided for VLA family law matters under the stage of matter limit “preparation for final hearing”. It does vary depending upon the number of days that the final trial is likely to take with the funding for the trial being capped at $2912 for a case of 3 days or more. This amount is to cover all steps in the preparation of the matter for final hearing including obtaining instructions, preparing any necessary documents, perusing any material from the other side, communication with the client, any experts, and the other side, instructing counsel, attending conferences. Prior to being paid the amount claimed must be itemized and supported by the appropriate documentation.
• there is funding for only one subpoena
• there is no funding for instructing
• there is some funding for case management hearings, and other matters that might be approved by the appropriate section of VLA, at a rate lower than that paid in other VLA matters.
It is important to note that there is no merits test associated with these matters, so no requirement that the practitioner monitor the merits of proceeding with the matter to final trial.
- Managing the client’s expectations
These matters are part of the 5 % of all matters that commence in the family law system and proceed all the way to final trial. As part of this category of matters they are some of the most difficult and complex matters that come before a judge for judicial determination.
The party receiving the benefit of such a grant is self represented. They may have been legally represented for part of the legal pathway, or they may have been self represented from the outset. There will be a long history that the practitioner handling these matters will be unaware of. Some information can be discovered from the court portal, the affidavits, the orders, and in particular the reports that have been prepared. Other information can be obtained from other practitioners or from the client. In my experience, much of the history remains unknown largely due to the time constraints and the pressure from the looming final hearing.
In my experience, it is crucial to be very clear with the client from the outset regarding the nature of your involvement in the matter, what they can expect of you, and what you expect of them. I send out a very clear letter setting this out as soon as I accept a referral of a matter. A meeting with the client early on is also important to confirm outstanding tasks, dates for compliance, and steps to be undertaken to enable the matter to proceed to trial at the date set aside in the orders.
Communication with the client is another area that requires clarification from the outset. In some matters clear boundaries are required to manage communication and the impact of this on required tasks.
- Engagement of Counsel
One of the most crucial and difficult tasks is the engagement of a barrister to represent the client at the trial.
VLA provides a grant of aid that covers the costs of a barrister for every day of the trial, rather than just the part of the time requiring cross- examination. The funding and conditions are the same as for the engagement of counsel in any legal aided matter in the Federal Circuit and Family Court of Australia.
In my experience this is the most difficult task for me as a solicitor accepting one of these grants.
First, there are very few barristers who accept these matters. Many of these referrals are made very close to the hearing, and the pool of available barristers is small. Of those who might be available, the numbers of barristers prepared to accept these matters is very small.
I have often found myself with a very difficult matter and a choice between very few who are unknown to me or my colleagues, so I am unable to match a difficult matter confidently with someone with appropriate experience.
I have also found that many of the barristers who have accepted these matters pull out in the weeks leading to the trial leaving me in an even more invidious situation.
I can recall at least three matters in the last three months, when I have had to personally attend the court for the hearing to support counsel and the client, despite not being covered by the funding.
The issue of obtaining competent counsel is an important one. There is also the necessity to ensure that counsel understands the purpose of their involvement in the matter, the goal to be achieved, and the restrictions inherent with these matters.
I am not sure the best way to manage this aspect of these matters. I would encourage an opportunity to discuss this with the Family Law Bar to ensure an appropriate understanding amongst the profession.
- Dealing with the restrictions of this area.
Some parties obtain a s102NA grant because they choose to represent themselves, and not necessarily because they cannot afford to pay legal fees.
I have had clients suggest to me that they would be prepared to supplement the terms of the s102NA grant.
For example they may say that they are prepared to pay for the difference between the funds provided by VLA for counsel, and the costs of a privately briefed barrister. This is not permitted under the terms of a s102NA grant and would invalidate that grant requiring it to be terminated.
These grants allow for only one subpoena. If the client requires more than one subpoena, this could be undertaken personally by them, but creates a number of issues for the legal practitioner or firm who are on the record. A Notice of Address for Service states that the practitioner is the legal representative for that party from the time that that document was lodged. If the party then themselves files further documents in their own name, this creates confusion and potentially ethical issues.
- Indications from VLA
I attended a session presented by VLA for the profession in December 2023. They did indicate that a Fact Sheet would be provided for the assistance of the profession To my knowledge there is only one for clients considering applying for there grants which can be found at
At the presentation the following points were made:
- additional preparation for solicitors will only be granted in exceptional circumstances, and only following an application in writing with supporting documentation and estimate of additional work required- every case will be considered on its own merits
- there is very limited scope for additional preparation time or barrister limited only to a conference fee in circumstances where there has been an adjournment- this would require prior approval
- private billing for additional work is not allowed-under s32 of Legal Aid Act- no additional costs are to be sought from the client by lawyers or barristers
- a client cannot engage a private barrister, they must either accept the terms of the scheme or go private
- the merits test does not apply, but if a client fails to follow reasonable advice provided or there is an irrevocable breakdown in relationship- funding may be terminated
- support for practitioners within the scheme can be obtained by emailing crossxnscheme@vla.vic.gov.au.
Conclusion
These are very difficult matters, and often deserve the attention of experienced solicitors and barristers to support them and ensure that the matter can proceed smoothly to a judicial determination. Careful consideration must be given when accepting these matters.