EXPLANATORY STATEMENT
Select Legislative Instrument 2006 No. 256
Issued by the Authority of the Minister for Justice and Customs
Family Law Act 1975
Family Law Amendment Regulations 2006 (No. 2)
Section 41 of the Family Law Act 1975 (the Act) allows for the establishment of State family courts. The Family Court of Western Australia (the FCWA) is currently the only State family court. Section 7 states that the Act operates in Norfolk Island.
Subsection 125(1) of the Act provides that the Governor‑General may make regulations prescribing all matters (including court fees) required or permitted by the Act to be prescribed or necessary or convenient to be prescribed for carrying out or giving effect to the Act.
The purpose of the Regulations is to align the filing fee for divorce applications across jurisdictions.
Subregulation 11(1A) of the Family Law Regulations 1984 (the Principal Regulations) prescribes the filing fee for a proceeding for a divorce order from a court constituted by a stipendiary magistrate who is the Principal Registrar, or a Registrar, of the FCWA, and a divorce order from the Court of Petty Sessions of Norfolk Island. The fee currently payable under subregulation 11(1A) is $304.
The Regulations, with effect from 9 October 2006, increase the divorce fee under subregulation 11(1A) to $405. This matches the equivalent fee in the Federal Magistrates Court – which was increased by the Federal Magistrates Amendment Regulations 2006 (No. 3) – in line with Government policy that the divorce fee be consistent across Australia.
The Regulations also remove erroneous references in subregulation 11(1A) to subregulation 10A(2), which does not exist.
The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003. The Regulations commence on 9 October 2006.
The FCWA and the Court of Petty Sessions of Norfolk Island have been consulted in relation to this legislative instrument. This consultation is appropriate as the instrument is of a minor or machinery nature only and does not substantially alter existing arrangements. The Office of Regulation Review has advised that a Regulation Impact Statement is not required.
Overview
The Family Law Amendment Regulations 2006 (No. 2), issued under the authority of the Minister for Justice and Customs, amend the Family Law Regulations 1984 to align the filing fee for divorce applications across jurisdictions. Enacted by the Parliament of Australia, the Family Law Act 1975 established a unified family law system in Australia, including provisions for state family courts. The Regulations aim to ensure consistency in divorce fees across Australia, reflecting government policy to standardise these fees nationally. Effective from 9 October 2006, the Regulations increase the divorce application fee in the Family Law Regulations 1984 from $304 to $405 to match the Federal Magistrates Court fee, which was also increased. Additionally, the Regulations correct an error by removing references to a non-existent subregulation. This legislative instrument, classified as minor and procedural, did not require a Regulation Impact Statement, and consultations with relevant courts were conducted to ensure the changes were appropriate.
Scope and Application
The Family Law Act 1975, as amended by the Family Law Amendment Regulations 2006 (No. 2), applies to all persons and entities involved in family law matters across Australia, including the Commonwealth, states, and territories, as well as Norfolk Island. This Act establishes state family courts, with the Family Court of Western Australia being the sole state family court currently in operation. It encompasses various aspects of family law, including the regulation of court fees for divorce proceedings. The Act authorises the Governor-General to make regulations for matters necessary or convenient to carry out or give effect to the Act, including court fees, as outlined in section 125(1). These regulations aim to ensure consistency in divorce fees across jurisdictions in alignment with government policy. The Family Law Amendment Regulations 2006 (No. 2) specifically address the alignment of divorce filing fees, increasing the fee to $405 to match the Federal Magistrates Court fee and rectifying errors in previous references within the Family Law Regulations 1984. The Regulations do not substantially alter existing arrangements and have been deemed appropriate for minor or machinery nature consultation with the relevant courts.
Key Provisions
The Family Law Amendment Regulations 2006 (No. 2) primarily focus on aligning the filing fee for divorce applications across different jurisdictions within Australia, in accordance with the Family Law Act 1975 (the Act) (Section 41). The Act, which includes provisions for the establishment of State family courts, such as the Family Court of Western Australia (the FCWA), is currently operational in Norfolk Island as stated in Section 7. The Act allows for the creation of regulations to prescribe necessary matters, including court fees, and these regulations are to be made by the Governor-General under Subsection 125(1).
The Regulations, which commence on 9 October 2006, introduce specific obligations and requirements, primarily concerning the adjustment of filing fees for divorce applications. The primary operative section, subregulation 11(1A) of the Family Law Regulations 1984 (the Principal Regulations), prescribes the filing fee for divorce orders. Under the Regulations, the fee for divorce applications in the FCWA and the Court of Petty Sessions of Norfolk Island is increased from $304 to $405, effective from 9 October 2006. This adjustment aims to align the divorce fee with that of the Federal Magistrates Court, which was also increased by the Federal Magistrates Amendment Regulations 2006 (No. 3). Furthermore, the Regulations correct an error by removing references to a non-existent subregulation 10A(2) from subregulation 11(1A).
The Regulations impose specific obligations on applicants for divorce orders in the FCWA and the Court of Petty Sessions of Norfolk Island. These applicants must now pay the increased filing fee of $405, in line with the new regulations. The FCWA and the Court of Petty Sessions of Norfolk Island have been consulted regarding these changes, which are deemed to be of a minor or machinery nature only, not substantially altering existing arrangements. The Office of Regulation Review has confirmed that a Regulation Impact Statement is not required.
Failure to comply with the new filing fee requirements may lead to administrative consequences, such as the delay in processing the divorce application until the correct fee is paid. While the Regulations do not explicitly state civil or criminal penalties for non-compliance, the Act and related legislation may impose sanctions for breaches of procedural requirements. The increased filing fee aims to standardise divorce application fees across Australia, reflecting government policy on consistency in court fees.