Family Law Regulations (Amendment) 1996 No. 253
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 253
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
FAMILY LAW ACT 1975
FAMILY LAW REGULATIONS (AMENDMENT)
Paragraph 125(1)(c) of the Family Law 1975 (the Act) provides that the Governor-General may make regulations prescribing court fees to he payable in respect of proceedings under the Act.
The previous Family Law Regulations provided for a fee of $460 for an application for a decree of dissolution or of nullity of marriage, a fee of $460 for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage, a fee of $250 for filing an Application for Final orders (Form 7) or a Response to an application for Final orders (Form 7A), a hearing fee of $400 for a defended hearing and a hearing fee of $400 for an appeal from a decree of a court of summary jurisdiction. These fees, which were provided for in the Family Law Regulations (Amendment) [SR 1996 No. 188], commenced on 1 September 1996.
In the Senate, on 9 October 1996, the Government announced that there would be amendments to these fees.
The purpose of these Regulations is to provide for these amendments. The Regulations provide that the fee for an application for dissolution of marriage or for nullity of marriage is increased to $500, to apply from the commencement of the Regulations. The fee for filing an Application for Final orders (Form 7) and a Response to an application for Final orders (Form 7A) is reduced to $150. The hearing fee for a defended hearing is reduced to $300. The hearing fee for an appeal from a decree of a court of summary jurisdiction is reduced to $300.
The Regulations provide that the reduced fee for ancillary applications and the reduced hearing fee in relation to proceedings initiated in the Family Court of Australia, apply from 1 September 1996.
The Commonwealth cannot make a valid regulation that is retrospective if a body other than the Commonwealth is thereby disadvantaged. Therefore it is not possible for the Commonwealth to provide that the reduced fees apply from 1 September 1996 in relation to proceedings initiated in State or Territory courts.
The Regulations provide that those people who paid a higher fee to the Family Court of Australia under the existing Regulations will be entitled, upon written request, to a refund of the difference between the previous higher fee and the new lower fee.
The Regulations also amend the regulation that provides for biennial CPI increases, to clarify the fee level to be used as the basis for CPI adjustment. The proposed Regulations will ensure that the fees that are increased automatically are the fees that are payable at the end of the prescribed period.
Details of the Regulations are as follows:
Regulation 1 - Commencement
Regulation 1 provides for the Regulations to commence on 1 December 1996.
Regulation 2 - Amendment
Regulation 2 provides for the Family Law Regulations to be amended as set out in these Regulations.
Regulation 3 - Application
Regulation 3 provides for the retrospective reduction of the fee for ancillary relief and the hearing fee, payable in the Family Court of Australia. Regulation 3 provides that the amendments made by subregulations 4.2, 4.4, 4.5, 4.6 and 4.7 apply, in relation to a proceeding in the Family Court, to a fee payable in the proceeding on or after 1 September 1996.
Regulation 4 - Regulation 11 (Fees in respect of proceedings)
Paragraph 11(1)(a) provides for the fees payable in respect of proceedings for a decree of dissolution or of nullity of marriage. Subregulation 4.1 omits $460 in subparagraph 11 (1)(a)(i), which provides for a filing fee, and substitutes $500. Subregulation 4.2 omits $400 in subparagraph 11(1)(a)(ii), which provides for a hearing fee if the proceedings are defended, and substitutes $300.
Paragraph 11(1)(b) provides for the fees payable in respect of proceedings as to the validity of a marriage or of the dissolution or annulment of a marriage. Subregulation 4.3 omits $460 in subparagraph 11(1)(b)(i), which provides for a filing fee, and substitutes $500. Subregulation 4.4 omits $400 in subparagraph 11 (1)(b)(ii), which provides for a hearing if the proceedings are defended, and substitutes $300.
Paragraph 11 (1)(c) provides for the fees payable in relation to financial or Part VII proceedings. Subregulation 4.5 omits $250 in subparagraph 11(1)(c)(i), which provides for a filing fee for an Application for Final orders and for a Response to an application for final orders, and substitutes $150. Subregulation 4.6 omits $400 in subparagraph 11(1)(c)(ii), which provides for a bearing fee for a defended hearing of an application for Final orders, and substitutes $300.
Paragraph 11(1)(d) provides for a hearing fee for an appeal from a decree of a court of summary jurisdiction. Subregulation 4.7 omits $400 in paragraph 11 (1)(d) and substitutes $300.
Subregulation 11 (4), which provides for when a hearing fee is payable, currently provides that a hearing fee is payable when a date is fixed for hearing. The Family Court of Australia has advised that this is not appropriate in all circumstances, especially when the Court is on circuit and there may not be the resources available for collecting and receipting the fee.
Subregulation 4.8 omits existing subregulation 11(4) and substitutes new subregulation 11(4). New subregulation 11(4) provides that if a Court or Registrar directs a time within which a hearing fee must be paid, then it is payable within that time. In any other case, when a Court or Registrar does not direct a time, a hearing fee is payable at the time when a date is fixed for the hearing.
Regulation 5 - Regulation 21AB (Calculation of increase)
Regulation 21AA provides that a fee prescribed by regulation 11 or 16 is increased on each biennial anniversary of 1 July 1996. Regulation 21AB provides for the method of calculation of the increase, based on the Consumer Price Index (CPI).
Subregulation 21AB(2) defines the 'fee' that is to be used as the basis for calculating the increased fee as the 'fee in force during the relevant period'. Regulation 5 amends this definition of 'fee' to provide that the 'fee' used is the 'fee in force at the end of the relevant period'. This ensures that, if the fee payable is altered during the period leading up to a biennial increase, the fee on which the calculation of the increase is based is the last fee payable.
Regulation 6 - Transitional refund provision
As outlined above, it is intended that a person who, prior to the commencement of these Regulations on 1 December 1996, paid in respect of a proceeding in the Family Court of Australia a higher fee than the fee provided for in these Regulations will be entitled to a refund of the difference between the previous higher fee and the lower fee provided for in these Regulations.
Subregulation 6.1 provides that the Regulation applies to a person who has paid a fee under:
* subparagraph 11(1)(a)(ii) - hearing fee for a defended hearing of an application for a decree of dissolution or of nullity of marriage;
* subparagraph 11(1)(b)(ii) - hearing fee for a defended hearing of an application for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage.,
* subparagraph 11(1)(c)(i) - application for ancillary relief;
* subparagraph 11(1)(c)(ii) - hearing fee for a defended hearing of an application for ancillary relief., or
* paragraph 11 1)(d) - hearing fee for an appeal from a decree of a court of summary jurisdiction
under the previous Regulations, in respect of a proceeding in the Family Court of Australia.
Subregulation 6.2 provides that a person may request the Registrar of the Court at which the fee was paid for a refund of the difference between the amount paid and the lower amount payable under these Regulations.
Subregulation 6.3 provides that a request must be in writing and accompanied by a receipt or other evidence of payment of the fee.
Subregulation 6.4 provides that the Registrar must pay the refund to the person as soon as practicable after receiving a request for the refund.
Subregulation 6.4 defines "Old Regulations" to be the Family Law Regulations in force immediately before the commencement of these Regulations.
These Regulations commence on 1 December 1996.
These Regulations commence on 1 December 1996.