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-fifth day of July 1979.
ZELMAN CO WEN
Governor-General
By His Excellency’s Command,
P. DURACK
Attorney-General
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AMENDMENTS OF THE FAMILY
LAW REGULATIONS
(2) Where, in connection with proceedings of a kind referred to in sub-regulation 173c (1) or (2) of the Family Law Regulations as amended by these Regulations pending at the commencement of these Regulations, the professional time reasonably spent, after the commencement of these Regulations, by a solicitor acting for the applicant in those proceedings in relation to any of the matters referred to in sub-regulation 173c (6) of the Family Law Regulations as so amended exceeded 1 hour, the last-mentioned sub-regulation applies in relation to those proceedings as if those proceedings had been instituted after the commencement of these Regulations.
“ ‘conference’, in relation to proceedings, includes any. attendance in connection with the proceedings, whether in person
or by telephone, by a solicitor who is acting for a party to the proceedings on—
(a) that party;
(b) a witness, or a person who may be a witness, in the proceedings;
(c) another party to the proceedings or, where a solicitor is acting for that other party in the proceedings, that solicitor;
(d) counsel for any party to the proceedings;
(e) a Judge;
(f) a registrar;
(g) a marriage counsellor, an approved marriage counselling organization or a welfare officer;
(h) a person or organization nominated under subsection 14 (2a) or (6) of the Act to assist in considering a reconciliation; or
(j) any other person on whom the attendance is reasonable;”.
(a) by inserting in sub-regulation (3) “court counsellor,” after “with a”; and
(b) by inserting in sub-regulation (4) “court counsellor,” after “that a”.
(a) by inserting in paragraph (i) of sub-regulation (2) “court counsellors,” after “with”; and
(b) by inserting in paragraph (j) of sub-regulation (2) “court counsellor’s report or a” after “of a”.
(a) by omitting from sub-regulation (1) “in the Family Court”; and
(b) by omitting from sub-regulation (2) “in the Family Court”.
“(3) A maintenance agreement to which section 87 of the Act applies may be registered in any court having jurisdiction under the Act by filing a sealed copy of the order approving the agreement under that section together with a sealed copy of the agreement.”.
“173. For the purpose of determining, in accordance with this Part, the amount that a solicitor acting for a party to proceedings is entitled to charge for costs for those proceedings, any professional work done or professional time reasonably spent in relation to those proceedings on behalf of that party by a partner of that solicitor or by a solicitor employed by the first-mentioned solicitor shall be regarded as professional work done or professional time reasonably spent, as the case requires, in relation to those proceedings on behalf of that party by the first-mentioned solicitor.
“173a. (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 of that party properly incurred, being an amount calculated by the registrar having regard to the provisions of this Part; and
(c) whether or not such an estimate or report has been obtained, make its own assessment of the costs of that party properly incurred,
and the court shall take into account—
(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.
“173b. Subject to these Regulations and except where otherwise ordered by the court, in any proceedings instituted after the commencement of these Regulations, a solicitor acting for a party to the proceedings is entitled to charge costs consisting of—
(a) amounts for costs prescribed by these Regulations; and
(b) disbursements properly incurred for the purposes of and incidental to the proceedings.
“173c. (1) Subject to sub-regulation (5), 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—$192; or
(ii) in any other case—$132; 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—$240; or
(ii) in any other case—$180.
“(2) Subject to sub-regulations (4) and (5), the basic composite amount that an applicant may be charged for costs for proceedings under Part VII or VIII or section 114 of the Act or under Part XV of these Regulations—
(a) in the Family Court, a State Family Court or a Supreme Court of a State or Territory is—
(i) where the solicitor employed another solicitor as his agent to instruct counsel or to appear personally for the applicant—$ 192; or
(ii) in any other case—$240; or
(b) in a court of summary jurisdiction—
(i) where the solicitor employed another solicitor as his agent to instruct counsel or to appear personally for the applicant—$96; or
(ii) in any other case—$144.
“(3) A reference in this regulation to a basic composite amount that an applicant may be charged for costs for proceedings shall be read as an amount for costs for—
(a) conferences;
(b) preparing documents;
(c) perusing relevant documents furnished by the applicant or documents in reply;
(d) necessary attendances at court or at the office of the court;
(e) furnishing the applicant with copies of any decrees obtained; and
(f) all other necessary procedural steps.
“(4) Where proceedings of a kind referred to in sub-regulation (2) were, or could reasonably have been, instituted at the same time as other proceedings of a kind referred to in that sub-regulation between the same parties were instituted by the applicant in the first-mentioned proceedings, a solicitor who is acting for the applicant in relation to each of those proceedings is entitled to charge, for costs for those proceedings, only 1 basic composite amount referred to in that sub-regulation.
“(5) Where proceedings of a kind referred to in sub-regulation (1) or (2) are settled or discontinued before hearing and the court has not made any order, the amount that the applicant may be charged for costs for those proceedings is an amount calculated at the rate of $48 an hour in respect of the professional time reasonably spent in relation to the proceedings.
“(6) Subject to sub-regulation (8), where the professional time reasonably spent by a solicitor acting for the applicant in proceedings of a kind referred to in sub-regulation (1) or (2) in relation to any of the following matters, that is to say—
(a) conferences;
(b) preparing documents;
(c) perusing relevant documents furnished by the applicant or documents in reply;
(d) necessary attendances at court or at the office of the court,
exceeded 1 hour, an additional amount, calculated at the rate of $48 an hour, may, in relation to that matter, be charged for costs in respect of the time by which that time exceeded 1 hour.
“(7) For the purposes of sub-regulation (6), professional time reasonably spent in relation to an attendance at court shall include 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.
“(8) Where a solicitor undertakes an attendance at court in relation to 2 or more proceedings, the amount that he is entitled to charge for each of those proceedings by way of an additional amount for costs in relation to 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 sub-regulation (6) in relation to that attendance by virtue of the operation of sub-regulation (7) as the number 1 bears to the number of those proceedings.
“(9) Where a solicitor acting for the applicant in proceedings of a kind referred to in sub-regulation (1) or (2) reasonably spends, in the course of his conduct of the proceedings, professional time in relation to any matter relevant to the proceedings other than a matter referred to in any of paragraphs (3) (a) to (f) (inclusive), an additional amount, calculated at the rate of $48 an hour, may be charged for costs in respect of that time.
“(10) The amount that may be charged for costs for any proceedings under the Act or these Regulations where an amount that may be charged for costs is not prescribed by any other provision of this regulation is an amount calculated at the rate of $48 an hour in respect of the professional time reasonably spent in relation to the proceedings.
“173d. 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 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.
“176. For the purposes of this Part, fees paid to counsel briefed to appear for the applicant in undefended proceedings for a decree of dissolution of marriage shall not be regarded as a disbursement properly incurred for the purposes of and incidental to 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—
(i) was not satisfied that proper arrangements in all the circumstances 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.
“177. For the purposes of this Part, fees paid to a solicitor employed as the agent of a solicitor acting for a party to proceedings shall not be regarded as a disbursement properly incurred for the purposes of and incidental to the proceedings to the extent to which the fees—
(a) exceed an amount calculated at the rate of $48 an hour in respect of the professional time reasonably spent by the first-mentioned solicitor in relation to the proceedings; or
(b) relate to—
(i) engrossing a document;
(ii) filing a document that could have been filed by post;
(iii) arranging for the service of a document or proof of service of a document; or
(iv) a matter that the second-mentioned solicitor could have attended to at less cost to the party.
“178. For the purposes of regulations 174 and 175, time taken by a solicitor acting for a party to proceedings in travelling to and from the court hearing the proceedings shall not be regarded as time reasonably spent to the extent to which that time exceeds 2 hours unless the registrar taxing the costs, or the court hearing the proceedings for taxation, as the case may be, considers that there are circumstances that justify it being so regarded.”.
1.
Notified in the
2. Statutory Rules 1975 No. 210 as amended by Statutory Rules 1976 Nos. 97 and 213; and 1977 No. 172.
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