EXPLANATORY STATEMENT
Select Legislative Instrument 2013 No. 136
Issued by Authority of the Attorney-General
Family Law Act 1975
Federal Circuit Court of Australia Act 1999
Family Law Amendment (Fees) Regulation 2013
The Family Law Act 1975 (the Family Law Act) establishes the Family Court of Australia (the Family Court) as a federal court under Chapter III of the Constitution.
Subsection 125(1) of the Family Law Act provides that the Governor-General may make regulations, not inconsistent with that Act, prescribing matters required or permitted by the Family Law Act to be prescribed for carrying out or giving effect to that Act, and in particular prescribing court fees payable in respect of proceedings under that Act, including provisions for fee exemptions and refunds.
The Federal Circuit Court of Australia Act 1999 (the FCC Act) establishes the Federal Circuit Court (the FCC) as a federal court under Chapter III of the Constitution.
Subsection 120(1) of the FCC Act provides that the Governor‑General may make regulations prescribing matters required or permitted by the FCC Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to that Act, and in particular, sub‑paragraph 120(3)(a) provides for the prescribing of fees to be paid in respect of proceedings in the FCC, including fee waivers, exemptions and refunds.
Pursuant to subsection 125(1) of the Family Law Act, the Governor-General made the Family Law (Fees) Regulation 2012 prescribing, amongst other matters, court fees payable in respect of proceedings under the Family Law Act. Pursuant to subsection 120(1) of the FCC Act, the Governor-General made the Federal Court and Federal Circuit Court Regulation 2012 prescribing, amongst other matters, court fees payable for proceedings in the FCC, including proceedings under the Family Law Act.
The Family Law Amendment (Fees) Regulation 2013 (the Regulation) provides an exemption for independent children’s lawyers from paying court fees relating to subpoenas and interim orders.
Independent children’s lawyers play an integral role in family law proceedings involving children. A court can make an order under subsection 68L(2) of the Family Law Act that an independent children’s lawyer be appointed to represent the best interests of a child in the proceedings. Following a court making such an order, an independent children’s lawyer is appointed by a legal aid commission and are funded by that commission using its Commonwealth funding.
It is important that independent children’s lawyers can gather information and evidence to discharge their role in presenting an independent view to the court about appropriate orders in the best interests of the child. As part of discharging their role, independent children’s lawyers often need to issue subpoenas and apply for interim orders. Exempting them from paying fees for these events would ensure that they can discharge their role effectively. The exemption also means that a legal aid commission that appoints an ICL does not need to bear the costs of interim order and subpoena fees incurred by an ICL.
This exemption was announced as part of the Government’s 2013‑14 Budget Increasing Access to Justice Package.
The Regulation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
The Regulation commences on 1 July 2013.
This explanatory statement contains a Statement of Compatibility with Human Rights prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Details of the Regulation are as follows:
Section 1 – Name of regulation
This section provides that the title of the Regulation is the Family Law Amendment (Fees) Regulation 2013.
Section 2 – Commencement
This section provides that the Regulation commences on 1 July 2013.
Section 3 – Authority
This section provides that the Regulation is made under the authority of the Family Law Act 1975 (the Family Law Act) and the Federal Circuit Court of Australia Act 1999.
Section 4 – Schedule(s)
This section provides that the Schedule to the Regulation sets out the instruments that are amended or repealed according to the items in the Schedule.
The Regulation contains one Schedule which contains one amendment to the Family Law (Fees) Regulation 2012.
Schedule 1 – Amendments
Item 1 – new section 2.05A
This item inserts a new section into Division 2.3 of Part 2 of the Family Law (Fees) Regulation 2012.
Section 2.05A exempts an independent children’s lawyer appointed to represent a child in proceedings under the Family Law Act from paying the following fees in relation to the proceeding:
- the fee mentioned in item 9 of Schedule 1 to the Family Law (Fees) Regulation, and
- the fee mentioned in item 19 of Schedule 1 to the Family Law (Fees) Regulation.
The fee mentioned in item 9 of Schedule 1 to the Family Law (Fees) Regulation is a fee for filing an interim order application.
The fee mentioned in item 19 of Schedule 1 to the Family Law (Fees) Regulation is a fee for issuing a subpoena.
Independent children’s lawyers play an integral role in family law proceedings involving children. A court can make an order under subsection 68L(2) of the Family Law Act that an independent children’s lawyer be appointed to represent the best interests of a child in family law proceedings. It is important that independent children’s lawyers can gather information and evidence to discharge their role in presenting an independent view to the court about appropriate orders in the best interests of the child, and as part of discharging their role, independent children’s lawyers often need to issue subpoenas and apply for interim orders. Exempting them from paying fees for these events ensures that they can discharge their role effectively.
Independent children’s lawyers are appointed by a legal aid commission on the basis of a court order and are funded by the commission using its Commonwealth funding. Exempting independent children’s lawyers from paying court fees for applying for interim orders and issuing subpoenas is in addition to the exemption under section 2.04 of the Family Law (Fees) Regulation from payment of family law fees for parties receiving a grant of legal aid under a legal aid scheme or service.
The note to section 2.05A clarifies that the term ‘independent children’s lawyer’ has the same meaning as in subsection 4(1) of the Family Law Act.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment (Fees) Regulation 2013
- This Regulation is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Regulation
2. The purpose of the Regulation is to provide an exemption for independent children’s lawyers from paying court fees relating to issuing subpoenas and making applications for interim orders.
3. A family law court can make an order under subsection 68L(2) of the Family Law Act that an independent children’s lawyer be appointed to represent the best interests of a child in family law proceedings. If a court orders that an independent children’s lawyer be appointed, an independent children’s lawyer is appointed by a legal aid commission and is funded by that commission using its Commonwealth funding.
4. As part of discharging this function, independent children’s lawyers gather information and evidence to present an independent view to the court about appropriate orders in the best interests of the child, and this often involves issuing subpoenas and applying for interim orders.
5. This measure was announced as part of the 2013‑14 Budget. The measure recognises the integral role that independent children’s lawyers play in complex family law proceedings involving children, and ensures that independent children’s lawyers can effectively discharge their role of representing the best interests of a child in family law proceedings.
Human rights implications
6. The Regulation engages the right to access to justice, which is implied in the right to effective remedy under Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR).
7. Article 2(3) of the ICCPR protects the right to effective remedy for violation of rights or freedoms recognised by the ICCPR, and provides for a person’s right to be determined by competent judicial authorities, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State.
8. The ICCPR recognises a number of rights and freedoms which may be relevant to family law proceedings:
- article 2(3)(b) provides that determination of violation of rights must be by competent judicial, administrative or legislative authorities
- article 23 provides that state parties shall take appropriate steps to ensure equality of rights and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children, and
- article 24 provides that every child shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
9. The Regulation advances the right to access to justice, particularly articles 23 and 24 of the ICCPR, by providing a fee exemption for independent children’s lawyers appointed to represent the best interests of a child in family law proceedings. Exempting independent children’s lawyers from paying fees in relation to issuing subpoenas and applying for interim orders ensures that they can discharge their role effectively.
Conclusion
10. The Regulation is compatible with human rights because it advances the protection of human rights, in particular the right to access to justice.