Family Law Amendment Regulations 2010 (No. 2)

Administered by Attorney-General's Department

Legislation au F2010L01845 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 165

Issued by the Authority of the Attorney-General

 

Family Law Act 1975

Family Law Amendment Regulations 2010 (No. 2)

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters 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 amendments is to amend the Family Law Regulations 1984 (the Principal Regulations) to introduce a hearing fee for each day of hearing, other than the first day of hearing.  The fees listed in regulations 11 and 16 of the Principal Regulations, which relate to various applications and court services, will also be increased.  The changes also implement new fees for consent order applications. 

These changes are part of a suite of measures the government is implementing as part of its access to justice framework in the 2010-11 Budget.  The framework is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate to larger problems.

The amendments also restructure the way fees are described so that fees are relocated from Regulations 11 and 16 of the Principal Regulations to proposed new Schedule 1AA in Item [9].

The new fee amounts in Schedule 1AA of the Regulations also incorporate biennial increases in fees. These biennial increases occur on each biennial anniversary of 1 July 1996, as required by Regulation 21AA of the Principal Regulations. The biennial increases are calculated in accordance with the formula specified in Regulation 21AB of the Principal Regulations. 

The fee amounts listed in the Principal Regulations are not up to date, due to the effect of past biennial increases that have not been recorded in the Principal Regulations.  The fee amounts listed in the Commonwealth Government Notices Gazette, No. GN 21, 28 May 2008 are the actual fees in force until 1 July 2010.  The fee increases have therefore been applied to the gazetted fee amounts, rather than the fee amounts in the Principal Regulations.

Details of the Regulations are set out in the Attachment.

 

The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence 1 July 2010.

 

The Family Court of Australia has been consulted in relation to these amendments.

 

 

 

 

 


ATTACHMENT

 

Details of the Family Law Amendment Regulations 2010 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Family Law Amendment Regulations 2010 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 July 2010. 

 

Regulation 3 – Amendment of Family Law Regulations 1984

 

This regulation provides for the amendment of the Family Law Regulations 1984 (the Principal Regulations) as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Subregulations 11(1), (1AA) and (1A), including the notes

 

This item will replace subregulations 11(1), (1AA) and (1A) of the Principal Regulations with a provision explaining that fee amounts are set out in new Schedule 1AA, which will be introduced by item [9] below.

 

Item [2] – Subregulation 11(5)

 

This item will replace references to subregulations 11(1), (1AA) and (1A) in subregulation 11(5) with a reference to Schedule 1AA.  This is because of the proposed relocation of all fee amounts to Schedule 1AA, which will be implemented by item [9] below.

 

Item [3] – Subregulation (6)

 

This item will replace references to subregulations 11(1), (1AA) and (1A) in subregulation 11(6) with a reference to Schedule 1AA.  This is because of the proposed relocation of all fee amounts to Schedule 1AA, which will be implemented by item [9] below.

 

Item [4] – Subregulation 11(7)

 

This item will replace references to subregulations 11(1), (1AA) and (1A) in subregulation 11(7) with a reference to Schedule 1AA.  This is because of the proposed relocation of all fee amounts to Schedule 1AA, which will be implemented by item [9] below. 

 

This item will also ensure that fee waivers and fee exemptions would not apply in relation to applications for consent orders.  This is because the process of ascertaining whether a litigant is eligible for a fee waiver or exemption in relation to these applications would be unduly onerous for courts to administer, given that the fee for consent order applications is only $80.

 

Item [5] – Subregulation 11(8)

 

This item will replace references to subregulations 11(1), (1AA) and (1A) in subregulation 11(8) with a reference to Schedule 1AA.  This is because of the proposed relocation of all fee amounts to Schedule 1AA, which will be implemented by item [9] below. 

 

Item [6] – Subregulation 16(1)

 

This item will replace subregulation 16(1) with a provision explaining that the fee amount for an appeal under section 94 or 94AAA of the Act is set out in Schedule 1AA in item [9] of the proposed amendments.

 

Item [7] – Regulation 21AA

 

This item will replace references to subregulations 11(1), (1AA) and (1A) and 16(1) in Regulation 21AA with a reference to Schedule 1AA in item [9].  This is because of the proposed relocation of all fee amounts to Schedule 1AA, which will be implemented by item [9] below. 

 

This item will also provide that the biennial increase in fees is not to apply to the proposed new fee for consent order applications until 1 July 2012.  This is because the 1 July 2010 biennial increase in fees should only apply to fee items that existed prior to 1 July 2010.

 

Item [8] – Subregulation 21AB(1), definition of fee

 

This item will replace references to regulations 11 and 16 in subregulation 21AB(1) with a reference to Schedule 1AA.  This is because of the proposed relocation of all fee amounts to Schedule 1AA, which would be implemented by item [9] below. 

Item [9] – Before schedule 1

This item will implement new hearing fees for days other than the first day of hearing.  This item will also increase the fees listed in the fee schedule.  This item will also implement new fees for consent order applications. These changes are part of a suite of measures the government is implementing as part of its access to justice framework in the 2010-11 Budget.  The framework is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate to larger problems. 

The increases also incorporate new amounts following the 1 July 2010 biennial increase in fees. 

 

Overview

The Family Law Amendment Regulations 2010 (No. 2), issued under the authority of the Attorney-General, were enacted to amend the Family Law Regulations 1984. The primary purpose of these amendments is to introduce a hearing fee for each day of hearing beyond the initial day, increase the fees for various applications and court services, and establish new fees for consent order applications. These amendments align with the access to justice framework outlined in the 2010-11 Budget, which aims to enhance accessibility, appropriateness, equity, efficiency, and effectiveness by encouraging early dispute resolution and reducing the reliance on costly litigation. The Family Court of Australia was consulted in relation to these amendments, ensuring their practicality and relevance within the judicial system. The changes also include the relocation of fee descriptions to a new Schedule 1AA, incorporating biennial fee increases as required by Regulation 21AA of the Principal Regulations, and adjusting the fee amounts to reflect the 1 July 2010 biennial increase.

Scope and Application

The Family Law Amendment Regulations 2010 (No. 2) pertain to the amendments of the Family Law Regulations 1984, which are subsidiary legislation made under the Family Law Act 1975. These regulations apply to individuals and entities involved in family law proceedings in Australia, including but not limited to those who are parties to a divorce, separation, or other family law matters handled by the Family Court of Australia and the Federal Circuit Court of Australia. The amendments affect all persons and entities engaged in family law proceedings by introducing a hearing fee for each day of hearing beyond the first day, increasing existing fees, and implementing new fees for consent order applications. The geographic reach of these regulations is nationwide, applying across all states and territories of Australia. The amendments do not specify exclusions or exemptions, but it is noted that fee waivers or exemptions will not apply to consent order applications due to the minimal fee amount. The regulations are effective from 1 July 2010 and incorporate biennial increases in fees as stipulated by Regulation 21AA and 21AB of the Principal Regulations. The Family Court of Australia has been consulted in relation to these amendments, ensuring that the changes align with the overarching access to justice framework.

Key Provisions

The Family Law Amendment Regulations 2010 (No. 2) make several significant changes to the Family Law Regulations 1984, primarily concerning the introduction and adjustment of fees for various family law proceedings. According to Regulation 3, the Regulations amend the Family Law Regulations 1984, as detailed in Schedule 1. Key amendments include the introduction of a hearing fee for each day of a hearing beyond the first day (Regulation 3, Schedule 1, Item [9]), the relocation of fee amounts from existing subregulations 11(1), (1AA), and (1A) and 16(1) to a new Schedule 1AA (Regulation 3, Schedule 1, Items [1] to [8]), and the implementation of new fees for consent order applications (Regulation 3, Schedule 1, Item [9]). These Regulations impose specific obligations on parties involved in family law proceedings. For instance, parties must now pay a fee for each day of a hearing beyond the first day, with the fee amounts specified in Schedule 1AA. Additionally, the new fees for consent order applications will apply, as detailed in the same schedule. The relocation of fees to Schedule 1AA also means that references to old fee amounts in subregulations 11(1), (1AA), and (1A), and 16(1) have been updated to reflect the new schedule. This restructuring ensures that the fees are clearly outlined and easily accessible, promoting transparency and efficiency in the administration of family law proceedings. The Regulations also introduce potential consequences for non-compliance with the new fee structures. While the Explanatory Statement does not explicitly list offences or penalties for breaching the new fee requirements, it is reasonable to infer that failure to pay the mandated fees could lead to legal consequences under the Family Law Act 1975. Typically, such non-compliance might result in proceedings being stayed or dismissed unless the fees are promptly paid, in line with general legal principles governing court fees and the enforcement of regulations. The precise penalties or consequences would depend on the specific circumstances and the discretion of the court.

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