Family Law Regulations (Amendment) (Cth)
REGULATIONS UNDER THE FAMILY LAW ACT 1975
I, THE GOVERNOR-GENERAL of the Commonwealth of
Australia, acting with the advice of the Federal Executive Council, hereby make
the following Regulations under the
Dated this twenty-ninth day of July 1980.
ZELMAN COWEN
Governor-General
By His Excellency’s Command,
R. ELLICOTT
Minister of State for Home Affairs
for and on behalf of the Attorney-General
AMENDMENTS OF THE FAMILY LAW
REGULATIONS
1. These Regulations shall come into operation on 1 August 1980.
2. Regulation 10 of the Family Law Regulations is amended—
(a) by omitting from sub-regulation (1) “the Schedule” and substituting “Schedule 1”;
(b) by omitting from sub-regulation (2) “the Schedule” and substituting “Schedule 1”; and
(c) by omitting from sub-regulation (3) “the Schedule” and substituting “Schedule 1”.
Costs in relation to work done before 1 August 1980
3. The heading of Part XIX of the Family Law Regulations is amended by adding at the end thereof “IN RELATION TO WORK DONE BEFORE 1 AUGUST 1980”.
4. After regulation 172 of the Family Law Regulations the following regulation is inserted in Part XIX:
“172A. (1) Subject to this regulation, this Part does not apply in relation to work done on and after 1 August 1980 for proceedings.
“(2) This Part continues to apply in relation to work done on and after 1 August 1980 for proceedings—
(a) instituted before 1 August 1980; or
(b) of a kind referred to in sub-regulation 173C (2) that were instituted after that date but could reasonably have been instituted at the same time as other proceedings of a kind referred to in that sub-regulation that were instituted between the same parties before that date.
“(3) In the application of this Part, by virtue of sub-regulation (2), in relation to work done on and after 1 August 1980 for proceedings—
(a) the reference in each of sub-regulations 173C (5), 173C (6) and 173C (9) to $48 shall be read as a reference to $52; and
(b) a reference to the amount that may be charged under sub-regulation 173C (10) shall be read as a reference to an amount calculated in accordance with the scale of costs in Schedule 2.”.
5. Regulations 173A, 174 and 175 of the Family Law Regulations are repealed.
6. After Part XIX of the Family Law Regulations the following Parts are inserted:
“PART XX—COSTS IN RELATION TO WORK DONE ON AND AFTER 1 AUGUST 1980
“179. Subject to regulation 172A, this Part applies in relation to work done on and after 1 August 1980 for proceedings.
“180. (1) In this Part, unless the contrary intention appears—
‘applicant’ means a person who makes an application in accordance with Form 4 or 6;
‘folio’ means a folio of 100 words.
“(2) For the purposes of this Part, a reference to work done for proceedings includes a reference to work done in relation to proceedings.
“(3) For the purposes of this Part, where the number of words on a document is not 100 or a multiple of 100, the document shall be deemed to consist of a number of folios calculated in accordance with the formula—
where A is the number of words on the document;
and any fraction produced by the calculation is ignored.
“(4) For the purposes of sub-regulations (1) and (3), the reference to a word includes a reference to—
(a) a symbol that represents a word; and
(b) a number that is expressed by a digit or group of digits.
“181. (1) Subject to regulation 182, unless otherwise ordered by a court a solicitor may not charge for proceedings costs that exceed—
(a) amounts prescribed by these Regulations for work done for the proceedings; and
(b) the cost of disbursements properly incurred for the proceedings.
“(2) Where costs that may be charged for work done for proceedings are not prescribed by any other provision of this Part, the amount that may be charged for that work shall not exceed an amount calculated in accordance with the scale of costs in Schedule 2.
“(3) A solicitor may not charge for proceedings cost for—
(a) a kind or quantum of work not reasonably required to be done for the proceedings; or
(b) work done for the administration of the solicitor’s office.
“182. (1) Nothing in this Part shall prevent—
(a) a solicitor acting for a party to proceedings from entering into an agreement in writing with that party in relation to costs of the proceedings and charging in accordance with that agreement; or
(b) that solicitor or party from availing himself of any remedy available to him at law in relation to that agreement.
“(2) Before entering into an agreement referred to in sub-regulation (1) with a party to proceedings, a solicitor shall—
(a) provide the party with a copy of this Part and Schedule 2; and
(b) advise the party of the desirability of obtaining independent legal advice in relation to the agreement before entering into the agreement.
“183. (1) Subject to regulation 190, the basic composite amount that an applicant may be charged for costs for undefended proceedings for a decree of dissolution of marriage is—
(a) where the solicitor employed another solicitor as his agent to instruct counsel or to appear personally for the applicant—
(i) if there is a child of the marriage who had not attained the age of 18 years—$223; or
(ii) in any other case—$158; or
(b) where the solicitor did not so employ another solicitor—
(i) if there is a child of the marriage who had not attained the age of 18 years—$275; or
(ii) in any other case—$210.
“(2) In sub-regulation (1) ‘basic composite amount’ means an amount in respect of—
(a) time, not exceeding a period of one hour, spent on taking instructions for, and preparing, an application in accordance with Form 4;
(b) engrossing an application in accordance with Form 4, including copies;
(c) attendances to have an affidavit in Part 2 of Form 4 sworn, to issue an application in accordance with Form 4 and have the application set down for hearing by a court;
(d) attendances and letters necessary to arrange for service of an application in accordance with Form 4, preparation of affidavits of service and of proof of signature, and attendances for the swearing and filing of the affidavits;
(e) conferences with the applicant and any witnesses;
(f) time, not exceeding a period of one hour, spent on attendance by a solicitor at court on the hearing of an application;
(g) perusing the decree of dissolution of marriage; and
(h) all necessary correspondence with the applicant.
“184. (1) Subject to regulations 189 and 190, the basic composite amount that an applicant may be charged for costs for 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 —
(a) where the solicitor employed another solicitor as his agent to instruct counsel or to appear personally for the applicant—$163; or
(b) in any other case—$215
“(2) In sub-regulation (1) ‘basic composite amount’ means an amount in respect of—
(a) time, not exceeding a period of one and a half hours, spent on taking instructions for, and preparing, an application and affidavit;
(b) engrossing not more than 4 pages of an application and affidavit, including copies;
(c) time, not exceeding a period of 20 minutes, spent with client to read over and discuss the application and swear the affidavit;
(d) attendance at court office to file an application, affidavit and other necessary documents and have the application set down for hearing;
(e) 2 letters necessary to arrange service of an application and affidavit and to advise client of the date of the hearing;
(f) perusing the report on service of an application and of affidavit;
(g) time, not exceeding a period of 30 minutes, spent on attendances on respondent’s solicitor; and
(h) time, not exceeding a period of one hour, spent on attendances by a solicitor at court on the hearing of the application.
“185. (1) Subject to regulations 189 and 190, the basic composite amount that an applicant may be charged for costs for 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—
(a) where the solicitor employed another solicitor as his agent to instruct counsel or to appear personally for the applicant—$198; or
(b) in any other case—$250.
“(2) In sub-regulation (1) ‘basic composite amount’ means an amount in respect of—
(a) time, not exceeding a period of 2 hours, spent on taking instructions for, and preparing, an application and affidavit;
(b) engrossing not more than 4 pages of an application and affidavit, including copies;
(c) time, not exceeding a period of 30 minutes, spent with client to read over and discuss the application and affidavit and swear the affidavit;
(d) attendance at court office to file an application, affidavit and other necessary documents and have application set down for hearing;
(e) 2 letters necessary to arrange service of an application and affidavit and to advise client of the date of the hearing;
(f) perusing the report on service of an application and of affidavit;
(g) time, not exceeding a period of 30 minutes, spent on attendances on respondent’s solicitor; and
(h) time, not exceeding a period of one hour, spent on attendances by a solicitor at court on the hearing of the application.
Basic scale of solicitor and client costs—proceedings under section 114 of the Act
“186. (1) Subject to regulations 189 and 190, the basic composite amount that an applicant may be charged for costs for 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—
(a) where the solicitor employed another solicitor as his agent to instruct counsel or to appear personally for the applicant—$217; or
(b) in any other case—$270.
“(2) In sub-regulation (1) ‘basic composite amount’ means an amount in respect of—
(a) time, not exceeding a period of 2 hours, spent on taking instructions for, and preparing, an application and affidavit;
(b) engrossing not more than 3 pages of an application and affidavit, including copies;
(c) time, not exceeding a period of 30 minutes, spent with client to read over and discuss the application and affidavit and swear the affidavit;
(d) time, not exceeding a period of 45 minutes, spent on attendance at court office to file the application and documents and fix an early hearing;
(e) time, not exceeding a period of 30 minutes, spent on attendances to arrange immediate service of an application and affidavit;
(f) advising client of the date of the hearing; and
(g) time, not exceeding a period of one hour, spent on attendances by a solicitor at court on the hearing of the application.
“187. (1) Subject to regulations 182, 188 and 195, where a solicitor charges a basic composite amount for work done for proceedings referred to in regulation 183, 184, 185 or 186 and the work so done is not work in relation to which sub-regulation (2) or (3) applies, the solicitor may not make another charge for doing that work.
“(2) Where—
(a) a solicitor charges a basic composite amount referred to in regulation 183, 184, 185 or 186 for work done for proceedings; and
(b) the solicitor does work for the proceedings that is not of a kind referred to in that regulation,
the solicitor may charge an amount calculated in accordance with the scale of costs in Schedule 2 for the work referred to in paragraph (b).
“(3) Where—
(a) a solicitor charges a basic composite amount referred to in regulation 183, 184, 185 or 186 for work done for proceedings; and
(b) the solicitor does—
(i) work of a kind referred to in that regulation for a period in excess of the period referred to in that regulation; or
(ii) a quantum of work of a kind referred to in that regulation that is in excess of the quantum referred to in that regulation,
the solicitor may charge an amount calculated in accordance with the scale of costs in Schedule 2 for the work referred to in paragraph (b).
“188. In addition to the amounts otherwise chargeable under this Part, a solicitor may charge for work done for proceedings an amount justified by—
(a) the complexity of the proceedings;
(b) the difficulty or novelty of the matters raised in the proceedings;
(c) the special skill, knowledge or responsibility required of, or the demands placed upon, the solicitor by the proceedings; or
(d) any steps taken by the solicitor that led to—
(i) the simplification of the proceedings; or
(ii) a significant savings of costs to the person for whom he acts.
Proceedings that were, or could have been, instituted together
“189. Where proceedings of a kind referred to in sub-regulation 184 (1), 185 (1) or 186 (1) were, or could reasonably have been, instituted by a solicitor on behalf of an applicant at the same time as other proceedings of that kind between the same parties, the solicitor may charge for all those proceedings only one of the basic composite amounts applicable in respect of those proceedings, being the higher, or highest, of those basic composite amounts that, but for this regulation, would have been chargeable under the Part.
“190. Where proceedings of a kind referred to in sub-regulation 183 (1), 184 (1), 185 (1) or 186 (1) are settled or discontinued before hearing and the court has not made any order, the solicitor may not charge for work done for those proceedings costs that exceed an amount calculated in accordance with the scale of costs in Schedule 2.
“191. For the purposes of determining the amount that a solicitor may charge for work done for proceedings, work done for those proceedings by a partner of that solicitor or by a solicitor employed by the first-mentioned solicitor shall be regarded as work done by the first-mentioned solicitor.
“192 (1) Subject to sub-regulations (2) and (3), time reasonably spent by a solicitor in relation to an attendance at court for the purpose of a hearing of proceedings includes time reasonably spent at the court in waiting for the hearing to commence or resume and time reasonably spent in travelling to and from the court.
“(2) Time taken by a person in travelling to and from the court for the purpose of proceedings shall not be regarded as time reasonably spent to the extent to which that time exceeds 2 hours unless exceptional circumstances justify it being so regarded.
“(3) Where a person undertakes an attendance at court in relation to 2 or more proceedings, the amount that a solicitor may charge for each of those proceedings by way of an additional amount for time reasonably spent at the court in waiting for the hearings to commence or resume and time reasonably spent in travelling to and from the court is an amount that bears the same proportion to the amount that he would, but for this sub-regulation, have been entitled to charge under Item 7 or 8 of Schedule 2, as the case may be, in relation to that attendance by virtue of the operation of sub-regulations (1) and (2) as the number 1 bears to the number of those proceedings.
“193. Fees paid to a solicitor employed as the agent of a solicitor acting for a party to proceedings are not disbursements properly incurred for the proceedings to the extent to which the fees—
(a) exceed an amount calculated in accordance with the scale of costs in Schedule 2; or
(b) are fees for a matter that the second-mentioned solicitor could have attended to at less cost to the party.
“194. (1) Subject to sub-regulation (2), fees paid to counsel briefed to appear for a party in proceedings are disbursements properly incurred for the proceedings if—
(a) the briefing of counsel to appear in the proceedings—
(i) was certified by the court as having been reasonably required; or
(ii) had been requested in writing by that party; and
(b) the fees are fair and reasonable.
“(2) Fees paid to counsel briefed to appear for the applicant at a hearing of undefended proceedings for a decree of dissolution of marriage are not disbursements properly incurred for the proceedings unless—
(a) the brief was delivered to counsel after the hearing of the proceedings had been adjourned by the court; and
(b) at the time of the adjournment, the court informed the applicant that the court, having regard to all the circumstances—
(i) was not satisfied that proper arrangements had been made for the welfare of children of the marriage who had not attained the age of 18 years; or
(ii) would not be prepared to make the decree sought on the evidence then before the court.
“195. (1) Regulation 194 does not apply in relation to a solicitor in respect of a hearing of proceedings at which he acts as counsel.
“(2) Subject to sub-regulation (3), a solicitor may charge fair and reasonable fees for acting as counsel at a hearing of proceedings if the court—
(a) having regard to the matters raised in the proceedings, certifies that it would have been reasonable for the solicitor to have briefed counsel had not the solicitor so acted; and
(b) having regard to the solicitor’s skill in the conduct of the proceedings, certifies that the solicitor may charge additional fees for so acting.
“(3) A solicitor may not charge fees for acting as counsel at a hearing of undefended proceedings for a decree of dissolution of marriage unless—
(a) a hearing of the proceedings had been adjourned by the court; and
(b) at the time of the adjournment, the court informed the applicant that the court, having regard to all the circumstances—
(i) was not satisfied that proper arrangements had been made for the welfare of children of the marriage who had not attained the age of 18 years; or
(ii) would not be prepared to make the decree sought on the evidence then before the court.
“196. An amount paid by a solicitor for the attendance of a witness at a hearing of proceedings is a disbursement properly incurred for the proceedings if—
(a) the attendance was reasonably required for the proceedings; and
(b) the amount does not exceed the amount that would have been payable if the proceedings had been an action before the Supreme Court of the State or Territory in which the proceedings were heard.
Order under sub-section 117 (2) of the Act for costs
“197. (1) Where a court proposes to make an order under sub-section 117 (2) of the Act as to costs, the court may, if it thinks fit—
(a) obtain from the party to the proceedings in whose favour the order is to be made, or from his solicitor, an estimate of the costs of that party in the proceedings;
(b) obtain from the registrar of the court a report as to the amount of the costs that the party properly incurred, being an amount calculated by the registrar having regard to the provisions of Part XIX and Part XX; and
(c) whether or not such an estimate or report has been obtained, make its own assessment of the costs that the party properly incurred, and the court shall have regard to—
(d) the financial circumstances of the party to the proceedings against whom the order is to be made;
(e) the availability of legal aid to the parties to the proceedings;
(f) the conduct of the parties at the hearing or determination of the proceedings including, without limiting the generality of the foregoing, their conduct in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admission of facts, production of documents and similar matters; and
(g) all other relevant matters.
“(2) For the purpose of obtaining a report referred to in paragraph (1) (b), a court may give to the registrar of the court such directions as the court thinks fit.
“(3) Where a court makes an order under sub-section 117 (2) of the Act as to costs, it shall, in the order, fix the amount of the costs to be paid in pursuance of the order and the court may, if it thinks fit, specify in the order terms and conditions relating to the payment of those costs.
“198. (1) An action for the recovery of costs of proceedings including fees, charges or disbursements shall not be commenced until the expiration of one month after an account for the costs has been served on the person to be charged with the costs and any dispute concerning a matter referred to in this regulation has been dealt with in accordance with this Part.
“(2) The service of an account shall be effected in accordance with paragraph 44 (1) (a), (b) or (d).
“(3) If a person to be charged with costs of proceedings disputes the account or any part of it, he may, within 21 days after service of the account upon him, file in a court a notice that sets out the parts of the account that he disputes.
“(4) A notice under sub-regulation (3) shall be in accordance with Form 30.
“(5) Where a notice is filed under sub-regulation (3), the registrar shall proceed to tax the account in accordance with the practice and procedure for taxation in the court.
“(6) In taxing an account, the registrar shall have regard to the costs and disbursements properly incurred for the matter, the complexity of the matter, the time reasonably spent in relation to the matter and all other relevant matters.
“(7) On completion of taxation, the registrar shall assess what costs, if any, should be paid by either party to the taxation proceedings to the other party in relation to costs incurred in the taxation proceedings in such amount as he thinks just.
“(8) The registrar shall issue an assessment specifying the amount, if any, payable by either party to the taxation proceedings to the other party and such an assessment shall take into account any amount assessed under sub-regulation (7).
“(9) An assessment for the purposes of sub-regulation (8) shall be in accordance with Form 31 and a copy of the assessment shall be furnished by the registrar to each of the parties to the taxation.
“(10) Where a person has been furnished with an assessment in accordance with sub-regulation (9), he shall be taken to have consented to the court making an order in terms of the assessment unless, within 14 days after receipt of the assessment, he files a notice of objection.
“(11) A notice of objection shall be in accordance with Form 32 and shall be served on the other party to the taxation proceedings.
Orders for payment of costs by a client to his solicitor
“199 (1) Where an assessment was issued under regulation 198 and no notice of objection has been filed, the registrar shall refer the proceedings for taxation to the court, and the court may, if it thinks fit, without any application being made to it and without a hearing, order the payment of costs in accordance with the terms of the assessment.
“(2) Where a notice of objection is filed under regulation 198 or a court does not think fit to make an order under sub-regulation (1), the registrar shall arrange for the proceedings for taxation to be set down for hearing by the court.
“(3) On a hearing under sub-regulation (2), the court may—
(a) receive such evidence as it thinks necessary to do justice between the parties to the taxation;
(b) take into account the assessment; and
(c) make such order as to all costs (including costs incurred before it) as it thinks fit.
“(4) An order made by the court under sub-regulation (1) or (3) shall be deemed to be a judgment for debt immediately due and payable and recoverable in accordance with law.”.
7. The Schedule to the Family Law Regulations is amended—
(a) by omitting the heading “SCHEDULE” and substituting “SCHEDULE 1”;
(b) by omitting from Form 30 “Regulation 174” and substituting “Regulation 198”;
(c) by omitting from Form 31 “Regulation 174” and substituting “Regulation 198”;
(d) by omitting from Form 31 “IN PURSUANCE OF regulation 174” and substituting “IN PURSUANCE OF regulation 198”;
(e) by omitting from Form 32 “Regulation 174” and substituting “Regulation 198”; and
(f) by omitting from Form 32 “regulations 174 and 175” and substituting “regulation 198”.
8. The Family Law Regulations are amended by adding at the end thereof the following Schedule:
Sub-regulations 172A (3), 181 (2), 182 (2), 187 (2), 187 (3), regulation 190, sub-regulation 192 (3) and regulation 193 | |||
SCALE OF COSTS | |||
1 | Drawing documents...................................................................... | $4.33 per folio | |
2 | Engrossing documents.................................................................. | $1.50 per folio | |
3 | Drafting and typing— | ||
(a) short letter (up to one folio in length)........................................ | $5 | ||
(b) circular letter (up to one folio in length).................................... | $2.50 | ||
(c) any other letter........................................................................ | $6 for the first folio and $5 for each subsequent folio | ||
4 | Telephone attendance— | ||
(a) continuing for up to 5 minutes.................................................. | $4.25 | ||
(b) continuing for more than 5 minutes.......................................... | At the rate of $52 per hour | ||
5 | Perusal of documents.................................................................... | $2 per folio | |
6 | Photographic reproduction, carbon or other copy of a document...... | $0.50 per page | |
7 | Time reasonably spent by a solicitor on work, requiring the skill of a solicitor, other than work referred to in Item 1, 2, 3, 4, 5, 6 or 8 | At the rate of $52 per hour | |
8 | Time reasonably spent by a solicitor or employee of a solicitor on work other than work referred to in Item 1, 2, 3, 4, 5, 6 or 7 | At the rate of $28 per hour | |
1. Notified in the
Commonwealth of Australia Gazette on 31 July 1980.2. Statutory Rules 1975 No. 210 as amended by Statutory Rules 1976 Nos. 97 and 213; 1977 No. 172; 1979 No. 146.
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