FAMILY LAW AMENDMENT (COSTS) RULES 2018
EXPLANATORY STATEMENT
FAMILY LAW AMENDMENT (COSTS) RULES 2018
EXPLANATORY STATEMENT
Issued by the authority of the Judges of the Family Court of Australia
Section 123 of the Family Law Act 1975 (the Act) provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Act. The Judges of the Court made the Family Law Rules 2004 (the Rules), which commenced on 29 March 2004. These amending Rules, the Family Law Amendment (Costs) Rules 2018 (the Costs FLAR) have now been made by the Judges to amend the Rules.
Section 123(2) of the Act provides that the Legislation Act 2003 (other than sections 8, 9, 10 and 16 and Part 4 of Chapter 3 of that Act) applies to Rules of Court. In this application, references to a legislative instrument in the Act are to be read as references to Rules and references to a Rule-maker as references to the Chief Justice.
Section 8(8)(d) of the Legislation Act 2003 provides that the Rules of Court made for the Family Court of Australia are not legislative instruments for the purposes of that Act. As a result the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to any such Rules of Court and no statement of compatibility for the purposes of that latter Act is included in his Explanatory Statement.
- GENERAL OUTLINE
Schedule 1 — Amendments
The Joint Costs Advisory Committee (JCAC) was established in 2007 to undertake an annual review of the quantum of costs contained in the Rules made by the High Court of Australia (the High Court), the Federal Court of Australia (the Federal Court), the Family Court of Australia (the Family Court) and the Federal Circuit Court of Australia (the Federal Circuit Court) and to recommend any variations. It comprises representatives of those courts. In conducting its reviews, the JCAC applies a formula which has regard to movements in wages and salaries and other costs of solicitors’ practices.
Following its annual review, the JCAC provided a report in September 2018 to the High Court, the Federal Court, the Family Court and the Federal Circuit Court. The Eleventh Report on Legal Practitioners’ Costs (September 2018) recommended an increase of two point one per cent (2.1%) to the current scale of costs specified in the Rules of each Court. Issues raised in consultation were addressed in the report. The Costs FLAR implement the recommendations of the report of the JCAC.
The Judges are conferred with specific powers in relation to costs by s 123(1)(g) of the Act.
2. CONSULTATION
In its 2018 annual review (as in previous reviews) the JCAC wrote to the Commonwealth Attorney-General’s Department, the Law Council of Australia, the National Association of Community Legal Centres and National Legal Aid inviting them and their respective constituent bodies to make submissions. A notice of review was also placed on the website of each court.
3. SUMMARY OF MAJOR CHANGES
To increase by two point one per cent (2.1%) the costs allowable for work done and services rendered by lawyers and itemised in the scale of costs in Schedule 3 of the Rules.
4. DETAILS OF AMENDMENTS
Schedule 1— Amendments
Rule 1 Name
The name of the rules is the Family Law Amendment (Costs) Rules 2018.
Rule 2 Commencement
The whole of these Rules commence on 1 January 2019.
Rule 3 Authority
The Rules are made under the Family Law Act 1975.
Rule 4 Schedules
Schedule 1 amends the Family Law Rules 2004.
[1] Schedule 3
The amendments repeal and substitute Schedule 3 — Itemised scale of costs. Each item of costs in Schedule 3 is increased by two point one per cent (2.1%).
[2] Part 27.1
The amendments repeal and substitute Part 27.1 to provide that Schedule 3, as amended, applies to work done on or after 1 January 2019.
Overview
The Family Law Amendment (Costs) Rules 2018 were enacted to amend the Family Law Rules 2004, implementing the recommendations of the Joint Costs Advisory Committee (JCAC) concerning the quantum of costs for legal practitioners in family law matters. This amending legislation was made by the Judges of the Family Court of Australia under section 123 of the Family Law Act 1975. The JCAC, comprising representatives from the High Court, the Federal Court, the Family Court, and the Federal Circuit Court, conducts annual reviews of legal practitioners' costs and applies a formula that takes into account movements in wages and salaries and other costs of solicitors' practices. Following its September 2018 review, the JCAC recommended a 2.1% increase to the scale of costs specified in the Rules, which these amending Rules implement. The amendments increase the allowable costs for work done and services rendered by lawyers, itemised in Schedule 3 of the Rules, effective from 1 January 2019.
Scope and Application
The Family Law Amendment (Costs) Rules 2018 applies to the Family Court of Australia and modifies the Family Law Rules 2004 to implement the recommendations of the Joint Costs Advisory Committee (JCAC). The rules are applicable to lawyers who provide services in proceedings under the Family Law Act 1975 and other relevant legislation. They apply nationally across Australia as the Family Court has jurisdiction throughout the country. The amendment increases the allowable costs for legal services by 2.1%, as recommended by the JCAC in their Eleventh Report on Legal Practitioners’ Costs, and these changes apply to work done on or after 1 January 2019. The Rules are made under the authority of section 123 of the Family Law Act 1975, and the Legislation Act 2003 applies to these Rules, except for specific exclusions noted. There are no stated exclusions or thresholds in these particular amending rules, and they do not extend or restrict application beyond what is specified.
Key Provisions
The Family Law Amendment (Costs) Rules 2018 (Costs FLAR) were made under the authority of section 123 of the Family Law Act 1975. These rules, which commenced on 1 January 2019, are intended to amend the Family Law Rules 2004. Specifically, they implement the recommendations of the Joint Costs Advisory Committee's (JCAC) Eleventh Report on Legal Practitioners' Costs, which suggested an increase of 2.1% to the costs specified in the existing Rules of various courts, including the Family Court of Australia. This amendment is detailed in Schedule 3 of the Costs FLAR, where each item of costs is increased by the recommended percentage.
The Costs FLAR impose obligations on legal practitioners and parties involved in family law proceedings by setting new cost scales for legal services. These new rates apply to work done and services rendered on or after 1 January 2019, as stipulated in Part 27.1 of the amended Rules. Legal practitioners must adhere to these updated cost structures when billing clients for services related to family law matters. Parties to family law proceedings should be aware of these changes as they will impact the financial obligations associated with their legal representation.
Breach of these Rules does not necessarily result in criminal or civil penalties as such; the Costs FLAR primarily aim to regulate and standardise the costs associated with legal services in family law matters. However, failure to comply with these updated cost structures could potentially lead to disputes between legal practitioners and clients regarding billing. The Rules do not specify penalties for non-compliance but underscore the necessity for adherence to the prescribed cost scales. Legal practitioners and parties must ensure that all billing practices conform to these new standards to avoid potential conflicts or misunderstandings regarding the costs of legal services.