Family Law Regulations (Amendment) (Cth)
I, THE
GOVERNOR-GENERAL of the Commonwealth of Australia, acting with the advice of
the Federal Executive Council, hereby make the following Regulation under the
Dated 28 October 1983.
N. M. STEPHEN
Governor-General
By His Excellency’s Command,
GARETH EVANS
Attorney-General
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After Part XX of the Family Law Regulations the following Part is inserted:
“196a. This Part applies to and in relation to work done by a solicitor acting in a matter arising under the Act, or these Regulations, being a matter—
(a) that was referred by a relevant authority to the solicitor on or after 1 November 1983; and
(b) in respect of which no work was done by the solicitor before that date.
“196b. (1) In this Part, ‘relevant authority’ has the same meaning as in section 116c of the Act.
“(2) A reference in this Part to a basic composite amount, in respect of a solicitor acting in a matter, shall be read as a reference to an amount payable in respect of—
(a) all attendances;
(b) preparing documents;
(c) perusing relevant documents furnished by the solicitor’s client or documents in reply;
(d) furnishing the solicitor’s client with copies of any decree or order obtained; and
(e) all other necessary procedural steps in the matter,
other than an amount payable in respect of an attendance at a conference held in pursuance of an order made under regulation 96.
“(3) A reference in paragraph (2) (a) to an attendance, in respect of attendance at court for the hearing of a matter, shall be read as an attendance for a period that does not exceed 1 hour.
“196c. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, undefended proceedings for a decree of dissolution of marriage, is—
(a) if there is a child of the marriage who had not attained the age of 18 years—$297; or
(b) in any other case—$227.
“196d. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, proceedings in which an order is sought, under section 64 of the Act, in the Family Court, a State Family Court or the Supreme Court of a State or Territory, is $270.
“196e. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, proceedings in which an order is sought, under section 74, 78, 79 or 83 of the Act, in the Family Court, a State Family Court or the Supreme Court of a State or Territory, is $232.
“196f. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, proceedings in which an order is sought, under section 114 of the Act, in the Family Court, a State Family Court or the Supreme Court of a State or Territory, is $292.
“196g. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, proceedings in which an order is sought, under section 64, 74, 78, 79, 83 or 114 of the Act, in a court of summary jurisdiction, is $ 168.
“196h. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, proceedings in respect of an agreement under section 86 or 87 of the Act, is—
(a) where the proceedings are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory—
(i) in the case of an agreement under section 86 of the Act—$176; and
(ii) in the case of an agreement under section 87 of the Act—$232; and
(b) where the proceedings are brought in a court of summary jurisdiction—
(i) in the case of an agreement under section 86 of the Act—$112; and
(ii) in the case of an agreement under section 87 of the Act—$168.
“196j. (1) Subject to sub-regulation (2) and to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, proceedings for contempt under section 35 of the Act, is—
(a) where the proceedings are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory—$292; and
(b) where the proceedings are brought in a court of summary jurisdiction—$168.
“(2) Where the proceedings for contempt arise out of existing proceedings and are instituted during the course of those proceedings—
(a) sub-regulation (1) does not apply; and
(b) the amount that may be paid to a solicitor acting in the existing proceedings is increased by an amount calculated at the rate of $56 per hour in respect of the time spent by the solicitor on the contempt proceedings.
“196k. Subject to regulation 196p, the basic composite amount that may be paid by a relevant authority to a solicitor acting in a matter included in the
following class of matters, that is to say, an application under sub-section 44 (3) of the Act, is—
(a) where the proceedings are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory—
$ 232; or(b) where the proceedings are brought in a court of summary jurisdiction—
$ 168.
“196l. (1) The amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say, a conference held in pursuance of an order made under regulation 96, is an amount calculated at the rate of $56 per hour in respect of the time spent by the solicitor at the conference.
“(2) A reference in sub-regulation (1) to time spent by a solicitor at a conference—
(a) includes time spent by the solicitor waiting at court while his client is taking part in the conference; and
(b) does not include time spent by the solicitor waiting for the conference to begin.
“196m. (1) The amount that may be paid by a relevant authority to a solicitor acting in a matter included in the following class of matters, that is to say—
(a) defended proceedings for a decree of dissolution of marriage;
(b) proceedings in which an order is sought under section 65 or 92 of the Act;
(c) proceedings in which the solicitor is acting for a child who is separately represented by virtue of an order made under section 65 of the Act;
(d) proceedings in which the solicitor is acting for a person who has been granted an order under section 92 of the Act;
(e) proceedings under the Act or these Regulations in which the solicitor is acting for the respondent to those proceedings; or
(f) any other proceedings under the Act or these Regulations, being proceedings in respect of which no amount is otherwise fixed by these Regulations,
is an amount calculated at the rate of $56 per hour in respect of the time that, in the opinion of the relevant authority, was reasonably spent by the solicitor on the matter.
“(2) In determining whether it is reasonable for a solicitor to have spent time on a matter, the relevant authority shall have regard to the work performed in the matter by the solicitor and the work that is ordinarily performed in the class of matters in which the matter is included.
“196n. Where proceedings of a kind referred to in regulation 196d, 196e, 196f, 196g, 196h or 196j were, or could reasonably have been, instituted by a solicitor on behalf of a person in receipt of legal assistance at the same time as other proceedings of the kind referred to in one of those regulations were instituted by the solicitor on behalf of that person, there may be paid to the solicitor an amount equal to the higher or highest of the basic composite amounts that may, but for this regulation, have been paid to the solicitor in respect of the proceedings.
“196p. (1) In this regulation, ‘prescribed time’, in relation to a matter, means—
(a) where proceedings in the matter are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory—a total of 1 hour in court together with not more than 4 hours’ work of a legal professional nature otherwise than in court; and
(b) where proceedings in the matter are brought in a court of summary jurisdiction—a total of 1 hour in court together with not more than 2 hours’ work of a legal professional nature otherwise than in court.
“(2) Where—
(a) the time spent by a solicitor on a matter exceeds the prescribed time in respect of that matter; and
(b) the relevant authority is of the opinion that it is reasonable for the solicitor to have spent that time on the matter,
there may be paid to the solicitor an amount calculated at the rate of $56 per hour in respect of the additional time spent on the matter.
“(3) In determining whether it is reasonable for a solicitor to have spent time on a matter, the relevant authority shall have regard to the work performed in the matter by the solicitor and the work that is ordinarily performed in the class of matters in which the matter is included.
“196q. Where—
(a) a relevant authority has, before the hearing of a matter, approved the briefing of counsel to appear in the proceedings on the grounds that it is a matter in respect of which it would be reasonable to brief counsel so to appear; and
(b) the solicitor acting in the matter acts as counsel at the hearing of the matter,
there may be paid to the solicitor an amount calculated at the rate of $70 per hour in respect of the time after the first hour during which the solicitor so acts as counsel.
“196r. Where a solicitor acting in a matter employs another solicitor as his agent to instruct counsel or to appear personally for the applicant in the matter, the basic composite amount that may otherwise be paid to the solicitor in respect of that matter shall be reduced by the sum of $56.
“196s. Where—
(a) a solicitor instructs counsel to appear at the hearing of a matter; and
(b) the hearing exceeds one hour in duration,
there may be paid to the solicitor—
(c) in respect of the first day of the hearing—
(i) in respect of each of the first 2 hours after the first hour—an amount calculated at the rate of $47 per hour;
(ii) where the hearing is of 4 hours’ duration—an amount of $ 116;
(iii) where the hearing is of 5 hours’ duration—$ 151; or
(iv) where the hearing exceeds 5 hours in duration—an amount of $151, together with an amount calculated at the rate of $47 per hour for each hour in excess of 5; and
(d) in respect of the second day, and any subsequent day, of the hearing—
(i) in respect of each of the first 2 hours—an amount calculated at the rate of $47 per hour;
(ii) where the hearing is of 3 hours’ duration—an amount of $116;
(iii) where the hearing is of 4 hours’ duration—an amount of $151;
(iv) where the hearing is of 5 hours’ duration—an amount of $187; or
(v) where the hearing exceeds 5 hours in duration—an amount of $187, together with an amount calculated at the rate of $47 per hour for each hour in excess of 5.
“196t. Where—
(a) a solicitor uses his own vehicle to attend the hearing of a matter included in a class of matters arising under the Act or these Regulations; and
(b) the place of the hearing is situated 35 kilometres or more from the usual place of practice of the solicitor,
the amount that may be paid to the solicitor under this Part in respect of the matter shall be increased by an amount calculated at the rate of 35 cents a kilometre in respect of each kilometre travelled by the solicitor for the purpose of attending the hearing of the matter.
“196u. (1) Where—
(a) a solicitor is required to wait at court for the hearing of a matter in which the solicitor is appearing for a person in receipt of legal assistance (in this regulation called the “relevant matter”) for a period that exceeds 2 hours; and
(b) it was, in the opinion of the relevant authority, reasonable for the solicitor so to wait,
there may be paid to the solicitor an amount calculated at the rate of $56 per hour in respect of the time spent waiting in excess of 2 hours.
“(2) Where—
(a) there would, but for this sub-regulation, be payable to a solicitor an amount calculated in accordance with sub-regulation (1); and
(b) the solicitor was required to wait at court for the hearing of more than one matter,
the amount that may be paid to the solicitor in respect of each matter that is a relevant matter is an amount that bears the same proportion to the amount that would, but for this sub-regulation, have been payable to the solicitor as the number 1 bears to the total number of matters in respect of which the solicitor was required to wait.
“(3) In determining whether it was reasonable for a solicitor to wait at court for the hearing of a matter, the relevant authority shall have regard to—
(a) the number of other matters, if any, listed for hearing by the court on that day, being matters in which the solicitor was to appear;
(b) whether any of the matters so listed were matters in which the solicitor was appearing for a person in receipt of legal assistance;
(c) the time at which the solicitor arrived at court;
(d) the position held by the relevant matter on the list of matters for hearing by the court on that day;
(e) the time at which the hearing of the relevant matter commenced; and
(f) such other matters as it considers relevant.
“196v. (1) Where—
(a) proceedings of a kind referred to in regulation 196c, 196d, 196e, 196f, 196g, 196h, 196j or 196k are settled or discontinued before hearing; and
(b) the court in which the proceedings were to be heard has not made any order in respect of the proceedings,
there may be paid by the relevant authority to the solicitor an amount calculated at the rate of $56 per hour in respect of the time that, in the opinion of the relevant authority, was reasonably spent by the solicitor on the matter.
“(2) In determining whether it is reasonable for a solicitor to have spent time on a matter, the relevant authority shall have regard to the work performed in the matter by the solicitor and the work that is ordinarily performed in the class of matters in which the matter is included.
“196w. The amount that may be paid by a relevant authority by way of disbursements to a solicitor acting in a matter included in a class of matters arising under the Act or these Regulations—
(a) includes all amounts in respect of disbursements that were properly incurred for the purposes of and incidental to the proceedings;
(b) where the amount includes an amount in respect of agent’s fees—shall be calculated at the rate of $56 per hour in respect of the time spent by the agent in work of a legal professional nature on the matter; and
(c) does not include an amount in respect of counsel’s fees unless the relevant authority has, before the hearing of the matter, approved the briefing of counsel to appear in the proceedings on the grounds that the briefing of counsel in the matter was reasonably required.”.
1.
Notified in the
2. Statutory Rules 1975 No. 210 as amended by 1976 Nos. 97 and 213; 1977 No. 172; 1979 No. 146; 1980 No. 215; 1982 Nos. 244 and 295.
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