EXPLANATORY STATEMENT
Family Law Act 1975
Family Law Regulations (Amendment)
(Statutory Rules 1983 No. 243)
Section 116C of the Act enables regulations to be made in relation to matters arising under the Act or Family Law Regulations (the Regulations) to fix or limit the amounts that may be paid by relevant authorities to legal practitioners acting in such matters. Regulations prescribing the amounts that may be paid by relevant authorities to solicitors acting in legally aided family law matters have not been made previously. The proposed regulations provide a scale of costs that are to be payable by relevant authorities for all matters referred by relevant authorities to a solicitor on or after 1 November 1983 and in which no work was done by the solicitor before that date.
Details of the proposed regulations are at Attachment A.
(Authorized by the Attorney-General)
Attachment A
Details of Regulations
The regulations provide for the insertion of a new Part after Part XX of the Family Law Regulations entitled “Part XXA - Costs Payable by Relevant Authorities”.
Regulation 196A provides that the new Part XXA applies to and in relation to work done by a solicitor acting in a matter arising under the Family Law Act 1975 (the Act) or the Family Law Regulations (the Regulations) that was referred by a relevant authority to the solicitor on or after 1 November 1983 and in respect of which no work was done by the solicitor before that date.
Regulation 196B provides that, for the purposes of Part XXA, “relevant authority” shall have the same meaning as in section 116C of the Act; that is, a person, authority or body (including an authority or body established by or under a law of a State or Territory) that, from time to time, receives relevant funding.
Paragraph 196B(ii) provides that, in Part XXA, a reference to a basic composite amount, in respect of a solicitor acting in a matter, shall be read as a reference to an amount payable in respect of all attendances, preparing documents, perusing relevant documents furnished by the solicitor’s client or documents in reply, furnishing the solicitor’s client with copies of any decree or order obtained, and all other necessary procedural steps in the matter, other than an amount payable in respect of an attendance at a conference held in pursuance of an order made under regulation 96 (conferences between parties).
Paragraph 196B(iii) provides that in paragraph 196B(ii) a reference to an attendance in respect of attendance at court for the hearing of a matter shall be read as an attendance for a period that does not exceed one hour.
Regulation 196C provides that, subject to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in undefended proceedings for a decree of dissolution of marriage is $297 if there is a child of the marriage who had not attained the age of 18 years or $227 in any other case.
Regulation 196D provides that, subject to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in proceedings in which an order is sought under section 64 of the Act (custody proceedings) in the Family Court, a State Family Court or the Supreme Court of a State or Territory is $270.
Regulation 196E provides that, subject to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in proceedings in which an order is sought under sections 74 (maintenance), 78 (declaration of interests in property), 79 (alteration of property interests) or 83 (modification of maintenance orders) of the Act in the Family Court, a State Family Court or the Supreme Court of a State or Territory is $232.
Regulation 196F provides that, subject to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in proceedings in which an order is sought under section 114 (injunctions) of the Act in the Family Court, a State Family Court or the Supreme Court of a State or Territory is $292.
Regulation 196G provides that, subject to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in proceedings in which an order is sought under sections 64 (custody), 74 (maintenance), 78 (declaration of interests in property), 79 (alteration of property interests), 83 (modification of maintenance orders) or 114 (injunctions) of the Act in a court of summary jurisdiction is $168.
Regulation 196H provides that, subject to regulation 196P, basic composite amounts may be paid by a relevant authority to a solicitor acting in proceedings in respect of an agreement under sections 86 (registration of maintenance agreements) or 87 (approval of maintenance agreements in substitution for rights under the Act) of the Act.
Paragraph 196H(a) provides that where proceedings are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory, in the case of an agreement under section 86 of the Act the basic composite amount payable is $176 and in the case of an agreement under section 87 of the Act the basic composite amount payable is $232.
Paragraph 196H(b) provides that where proceedings are brought in a court of summary jurisdiction, in the case of an agreement under section 86 of the Act the basic composite amount payable is $112 and in the case of an agreement under section 87 of the Act the basic composite amount payable is $168.
Regulation 196J provides for the payment of basic composite amounts in respect of proceedings for contempt of court under section 35 of the Act.
Sub-regulation 196J(1) provides that, subject to sub-regulation (2), and to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in proceedings for contempt that are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory is $292 and where the proceedings are brought in a court of summary jurisdiction the basic composite amount payable is $168.
Sub-regulation 196J(2) provides that, where the proceedings for contempt arise out of existing proceedings and are instituted during the course of those proceedings, sub-regulation (1) does not apply and the amount that may be paid to a solicitor acting in the existing proceedings is increased by an amount calculated at the rate of $56 per hour in respect of the time spent by the solicitor on the contempt proceedings.
Regulation 196K provides that, subject to regulation 196P, the basic composite amount that may be paid by a relevant authority to a solicitor acting in an application under sub-section 44(3) of the Act (leave required for proceedings after 12 months of decree nisi) is $232 where the proceedings are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory or $168 where the proceedings are brought in a court of summary jurisdiction.
Regulation 196L provides for the amount that may be paid by a relevant authority to a solicitor acting in a conference held in pursuance of an order made under regulation 96 (conferences between parties).
Sub-regulation 196L(1) provides that the amount that may be paid by a relevant authority to a solicitor acting in a conference held under regulation 96 is an amount calculated at the rate of $56 per hour in respect of the time spent by the solicitor at the conference.
Sub-regulation 196L(2) provides that a reference in sub-regulation (1) to time spent by a solicitor at a conference includes time spent by the solicitor waiting at court while his client is taking part in the conference and does not include time spent by the solicitor waiting for the conference to begin.
Regulation 196M provides for the amount that may be paid by a relevant authority to a solicitor acting in other matters.
Sub-regulation 196M(1) provides that where the solicitor acts in the following matters:
(a) defended proceedings for a decree of dissolution of marriage;
(b) proceedings in which an order is sought under section 65 (separate representation of child) or section 92 (intervention by other persons) of the Act;
(c) proceedings in which the solicitor is acting for a child who is separately represented by virtue of an order under section 65;
(d) proceedings in which the solicitor is acting for a person who has been granted leave to intervene under section 92;
(e) proceedings under the Act or Regulations in which the solicitor is acting for the respondent to those proceedings; or
(f) any other proceedings under the Act or Regulations in respect of which no amount is otherwise fixed in Part XXA;
the amount that may be paid by a relevant authority to the solicitor is an amount calculated at the rate of $56 per hour in respect of the time that, in the opinion of the relevant authority, was reasonably spent by the solicitor on the matter.
Sub-regulation 196(M)(2) provides that, in determining whether it is reasonable for a solicitor to have spent time on a matter, the relevant authority shall have regard to the work performed in the matter by the solicitor and the work that is ordinarily performed in similar matters.
Regulation 196N provides that where proceedings referred to in regulation 196D, 196E, 196F, 196G, 196H or 196J were, or could reasonably have been, instituted by a solicitor on behalf of a person in receipt of legal assistance at the same time as other proceedings, there may be paid to the solicitor an amount equal to the higher or highest of the basic composite amounts.
Regulation 196P provides for the payment of an amount to a solicitor in addition to the relevant basic composite amount.
Sub-regulation 196P(1) provides that where proceedings are brought in the Family Court, a State Family Court or the Supreme Court of a State or Territory, the prescribed time in relation to the matter means a total of one hour in court together with not more than four hours’ work of a legal professional nature otherwise than in court. Where proceedings are brought in a court of summary jurisdiction, the prescribed time in relation to the matter means a total of one hour in court together with not more than two hours’ work of a legal professional nature otherwise than in court.
Sub-regulation 196P(2) provides that, where the time spent by a solicitor on a matter exceeds the prescribed time and the relevant authority is of the opinion that it is reasonable for the solicitor to have spent that time on the matter, there may be paid to the solicitor an amount calculated at the rate of $56 per hour in respect of the additional time spent.
Sub-regulation 196P(3) provides that, in determining whether it is reasonable for a solicitor to have spent time on a matter, the relevant authority shall have regard to the work performed by the solicitor and the work that is ordinarily performed in similar matters.
Regulation 196Q provides that where a relevant authority has, before the hearing of a matter, approved the briefing of counsel to appear on the grounds that it is reasonable to do so, and the solicitor acts as counsel at the hearing, there may be paid to the solicitor an amount calculated at the rate of $70 per hour in respect of the time after the first hour of hearing during which the solicitor acts as counsel.
Regulation 196R provides that where a solicitor employs another solicitor as his agent to instruct counsel or to appear personally for the applicant, the basic composite amount that may otherwise be paid by a relevant authority to the solicitor in respect of that matter shall be reduced by the sum of $56.
Regulation 196S provides that where a solicitor instructs counsel to appear at the hearing of a matter, and the hearing exceeds one hour in duration, there may be paid to the solicitor in respect of the first day of hearing $47 per hour for the first 2 hours. Where the hearing is of 4 hours’ or 5 hours’ duration, an amount of $116 or $151 respectively
is payable. On the second and subsequent days of the hearing there may be paid to the solicitor $47 per hour in respect of each of the first 2 hours. Where the hearing is of 3 hours’, 4 hours’ or 5 hours’ duration, an amount of $116, $151 or $187 respectively is payable. On all occasions where a day’s hearing exceeds 5 hours, an additional amount calculated at the rate of $47 per hour is payable.
Regulation 196T provides that, where a solicitor uses his own vehicle to attend the hearing of a matter and the place of the hearing is situated 35 kilometres or more from the usual place of practice of the solicitor, the amount that may be paid to the solicitor shall be increased by an amount calculated at the rate of 35 cents a kilometre in respect of each kilometre travelled by the solicitor for the purpose of attending the hearing.
Regulation 196U provides for a solicitor to be paid in respect of time spent waiting at court.
Sub-regulation 196U(1) provides that, where a solicitor is required to wait at court for the hearing of a matter in which the solicitor is appearing for a person in receipt of legal assistance for a period that exceeds 2 hours and it was, in the opinion of the relevant authority, reasonable for the solicitor to wait, there may be paid to the solicitor an amount calculated at the rate of $56 per hour in respect of the time spent waiting in excess of 2 hours.
Sub-regulation 196U(2) provides for payment in respect of waiting time to be apportioned. Where the solicitor is required to wait at court in excess of 2 hours for the hearing of more than one legally-aided matter, the amount that may be paid, calculated at the rate of $56 per hour, will be divided in proportion to the number of such matters.
e.g. solicitor waits at court for 3 hours before hearing commences in respect of 2 legally-aided matters that are listed consecutively. The amount payable for each matter in respect of waiting time is calculated as follows:
Sub-regulation 196U(3) provides that, in determining whether it was reasonable for a solicitor to wait at court for the hearing of a matter, the relevant authority shall have regard to:
(a) the number of other matters, if any, listed for hearing by the court on that day, being matters in which the solicitor was to appear;
(b) whether any of the matters so listed were matters in which the solicitor was appearing for a person in receipt of legal assistance;
(c) the time at which the solicitor arrived at court;
(d) the position held by the relevant matter on the list of matters for hearing by the court on that day;
(e) the time at which the hearing of the relevant matter commenced; and
(f) such other matters as it considers relevant.
Regulation 196V provides for the payment of amounts in respect of settled or discontinued proceedings.
Sub-regulation 196V(1) provides that, where proceedings referred to in regulations 196C, 196D, 196E, 196F, 196G, 196H, 196J or 196K are settled or discontinued before hearing and the court has not made any order, there may be paid by the relevant authority to the solicitor an amount calculated at the rate of $56 per hour in respect of the time that, in the opinion of the relevant authority, was reasonably spent by the solicitor.
Sub-regulation 196V(2) provides that, in determining whether it is reasonable for a solicitor to have spent time on a matter, the relevant authority shall have regard to the work performed by the solicitor and the work that is ordinarily performed in similar matters.
Regulation 196W provides for the payment of disbursements to a solicitor.
Paragraph 196W(a) provides for payment of disbursements that were properly incurred for the purposes of and incidental to the proceedings.
Paragraph 196W(b) provides for payment of agents’ fees at the rate of $56 per hour in respect of the time spent by the agent in work of a legal professional nature.
Paragraph 196W(c) provides that payment in respect of counsel’s fees will not be made unless the relevant authority has, before the hearing of the matter, approved the briefing of counsel to appear in the proceedings on the grounds that it is reasonable to do so.