Family Law Amendment (Scale of Costs) Rules 2013

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FAMILY LAW AMENDMENT (SCALE OF COSTS) RULES 2013

 

EXPLANATORY STATEMENT

Select Legislative Instrument No. 282, 2013

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, which commenced on 29 March 2004. These amending Rules, the Family Law Amendment (Scale of Costs) Rules 2013, have now been made by the Judges to amend the Family Law Rules 2004.

 

Section 123(2) of the Act provides that the Legislative Instruments Act 2003 (apart from sections 5-7, 10, 11 and16) 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.

 

The Legislative Instruments Act provides for certain consultation obligations when Rules are made. The Chief Justice has authorised the Court’s Rules Advisory Committee to undertake consultation on Rules matters on her behalf.

 

Schedule 3 of the Family Law Rules 2004 specifies the amount which lawyers, who are entitled to practise in the Family Court, may charge and be allowed on assessment of costs in respect of proceedings in the Court.  The amounts in the Schedule were last varied by Select Legislative Instrument 2012 No. 331 made on 19 December 2012, and which came into operation on 1 January 2013.

 

The Joint Costs Advisory Committee (JCAC) was established in 2007 to review annually and recommend variations in the quantum of costs contained in the Rules made by the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia.  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.

 

In its 2013 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 to the review.  A notice of the review was also placed on the website of each court.  Following its annual review, the JCAC provided a report in September 2013 to the High Court of Australia, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia recommending an increase of 2.7% to the solicitors’ costs provided for in the Rules of each Court.  Issues raised in consultations were addressed in the report.

 

The Court has agreed to the recommendation of the Committee for an increase of 2.7% to the solicitors’ costs as set out in Schedule 3 of the Family Law Rules 2004, which is to come into operation on Wednesday, 1 January 2014 and will apply in respect of all work done and services performed by lawyers after Tuesday, 31 December 2013.

 

Section 9 of the Legislative Instruments Act 2003 provides that 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 this Explanatory Statement.

 

DETAILS OF AMENDMENTS

 

Rule 1 Name of Rules

The name of the rules is the Family Law Amendment (Scale of Costs) Rules 2013.

 

Rule 2 Commencement

Rules 1 – 4 and Schedule 1 commence on 1 January 2014.

 

Rule 3 Authority

The Rules are made under the Family Law Act 1975.

Rule 4 Schedule

Schedule 1 amends the Family Law Rules 2004.

Schedule 1 – Amendments commencing on 1 January 2014

 

Do not delete: Schedule Part Placeholder

[1]                             Schedule 3 is repealed and substituted with an itemized scale of costs

After the heading of this Schedule there is a note that states this schedule applies to work done and services performed after 1 July 2006.

 

This amendment repeals that note after the Schedule heading and the historical itemised scale of costs that followed to avoid confusion. 

 

A note after the Schedule heading confirms that Schedule 3 as in force from 1 July 2006 until the day on which these Rules are registered (i.e. the day before Rules 1 to 4 and Schedule 1 commence) continues to apply for work done and services performed during that period.  The amended Schedule 3 applies for work done and services performed from the day after these Rules are registered (i.e. the day Rules 1 to 4 and Schedule 1 commence).
 

Overview

The Family Law Amendment (Scale of Costs) Rules 2013 were enacted to address the need for periodic adjustments to the scale of costs for legal services in the Family Court of Australia. This amendment was introduced by the Judges of the Family Court of Australia under the authority of section 123 of the Family Law Act 1975. The primary objective was to reflect changes in the economic environment and the costs associated with providing legal services, ensuring that the costs remain fair and reasonable. These Rules were made to align with the recommendations of the Joint Costs Advisory Committee, which advises on the quantum of costs in various courts. The 2013 amendments, effective from 1 January 2014, increased the allowable costs by 2.7%, following consultations with relevant stakeholders and a review of economic indicators.

Scope and Application

The Family Law Amendment (Scale of Costs) Rules 2013 applies to the Family Court of Australia, governed by the Family Law Act 1975. These rules are pertinent to lawyers entitled to practise in the Family Court, dictating the fees they may charge for their services in proceedings under the Act. The legislation concerns the practice and procedure within the Family Court, and thus applies to legal practitioners, parties involved in family law matters, and potentially the courts themselves. The amendment is geographically bound to the Commonwealth jurisdiction, affecting proceedings and costs in family law cases across Australia. The rules extend their application through the Family Law Rules 2004, which detail the practice and procedure to be followed in the Family Court, with these amendments specifically modifying the scale of costs as per Schedule 3. Notably, the Human Rights (Parliamentary Scrutiny) Act 2011 does not apply to these rules, exempting them from certain scrutiny requirements.

Key Provisions

The Family Law Amendment (Scale of Costs) Rules 2013 (the amending Rules) are designed to adjust the scale of costs that lawyers can charge in proceedings within the Family Court of Australia, as per section 123 of the Family Law Act 1975 (the Act). These amending Rules, made by the Judges of the Family Court of Australia, seek to align the costs structure with the recommendations from the Joint Costs Advisory Committee (JCAC). Specifically, they implement a 2.7% increase in the scale of costs, as recommended by the JCAC in its 2013 annual review. This adjustment is intended to reflect changes in the economic environment and the costs associated with operating a legal practice. The amending Rules will come into effect on 1 January 2014, applying to all work and services performed by lawyers after 31 December 2013. The amending Rules impose several obligations on parties and entities governed by the Family Law Rules 2004. Lawyers who are entitled to practise in the Family Court must now adhere to the updated costs schedule, ensuring that their billing practices are consistent with the 2.7% increase. This requirement is critical for maintaining transparency and fairness in the legal fee structure. Additionally, the amending Rules mandate that the updated costs schedule apply retroactively to work and services performed from 1 July 2006, provided they are completed before the commencement date of the amending Rules. This ensures that any legal work done prior to the implementation of the new rates still benefits from the increased fee structure if completed before the cut-off date. The Family Law Amendment (Scale of Costs) Rules 2013 do not explicitly outline specific offences, penalties, or civil and criminal consequences for breaches within the text provided. However, the legislative framework governing the Family Court of Australia, including the Family Law Act 1975 and the Family Law Rules 2004, likely incorporates general provisions for handling non-compliance. Typically, any breaches of the rules or failure to adhere to the mandated costs structure could potentially lead to disputes over billing, claims for overcharging, or other legal challenges. Parties aggrieved by the application of the costs schedule may seek redress through the Family Court itself, where the presiding judges would have the authority to address and rectify any improper billing practices. The specific penalties or consequences would be determined by the Court on a case-by-case basis, depending on the nature and severity of the breach.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.