Family Law Regulations (Amendment) 1998 No. 39
EXPLANATORY STATEMENT
STATUTORY RULES 1998 NO. 39
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
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 fees to be payable in respect of proceedings under the Act.
Regulation 11 provides for fees in respect of proceedings. Subparagraphs 11(1)(a)(ii), 11(1)(b)(ii) and 11(1)(c)(ii) and paragraph 11(1)(d) provide for a hearing fee if the proceedings are defended. Subregulation 11(4) provides that, in general, the hearing fee is payable at the time when a date is fixed for the hearing of the proceedings.
Both the Federal Court of Australia Regulations and the High Court of Australia (Fees) Regulations provide for an entitlement, in prescribed circumstances, to a refund of the hearing fee when it has been paid in advance and the hearing does not proceed or is conducted only to make formal orders. However, there is no similar provision in the Family Law Regulations.
The purpose of the Regulations is to provide for an entitlement to a refund of the hearing fee, in similar terms to the provision for a refund of a hearing fee contained in the Federal Court of Australia Regulations.
Details of the Regulations are as follows:
Regulation 1 - Amendment
Regulation 1 provides that the Family Law Regulations are amended as set out in these Regulations.
Regulation 2 - Regulation 11 (Fees in respect of proceedings)
Regulation 2 inserts new subregulation 11(9). Subregulation 11(9) provides that a person who has paid a hearing fee is entitled to a refund of the fee if notice that the hearing will not proceed is given to the Registrar within a prescribed period of time and the hearing does not in fact proceed or is conducted only to formalise the making of final orders. The prescribed period of time is 2 working days before the date of the hearing, if the date of the hearing was fixed within 20 working days of the hearing, or in any other case not less than 20 working days before the date of the hearing.
The Regulations commenced on gazettal.
Overview
The Family Law Regulations (Amendment) 1998 No. 39 was enacted to address a gap in the Family Law Regulations regarding the refund of hearing fees under the Family Law Act 1975. The Act, passed by the Australian Parliament, was designed to streamline and regulate family law proceedings. However, a discrepancy was identified where the Family Law Regulations did not include provisions for a refund of hearing fees when proceedings did not proceed or were only conducted to formalise final orders, unlike the Federal Court of Australia Regulations and the High Court of Australia (Fees) Regulations. This amendment aims to rectify that by introducing a refund entitlement under similar conditions to those in the Federal Court Regulations. The policy objective is to ensure consistency and fairness in the application of hearing fees across different courts and proceedings under Australian law.
Scope and Application
The Family Law Regulations (Amendment) 1998 No. 39 applies to proceedings under the Family Law Act 1975 and affects any person or entity involved in such proceedings, particularly those who have paid a hearing fee. The amendment is intended to align the Family Law Regulations with the Federal Court of Australia Regulations and the High Court of Australia (Fees) Regulations by providing a mechanism for the refund of hearing fees under specific circumstances. These circumstances include situations where the hearing does not proceed or is only conducted to formalise the making of final orders, provided that notice is given to the Registrar within a specified period. The regulation sets out different prescribed periods depending on the timing of the hearing date. The amendment extends the application of the Act by introducing a new subregulation, 11(9), which specifies the conditions for refund eligibility. The Regulations commenced upon gazettal, and their application is nationwide, as they are subordinate to the Commonwealth Act.
Key Provisions
The Family Law Regulations (Amendment) 1998 No. 39 introduces a key change to the Family Law Regulations under the Family Law Act 1975, primarily focused on the refund of hearing fees in certain circumstances. Regulation 2 inserts a new subregulation 11(9) into Regulation 11, which deals with fees in respect of proceedings (11(1)). This new subregulation provides that a person who has paid a hearing fee is entitled to a refund if notice that the hearing will not proceed is given to the Registrar within a prescribed period of time and the hearing does not, in fact, proceed or is conducted only to formalise the making of final orders (11(9)). The prescribed period is 2 working days before the date of the hearing if the date was fixed within 20 working days of the hearing; otherwise, it is not less than 20 working days before the date of the hearing.
The obligations imposed by these amendments are primarily on the parties involved in the proceedings, who must ensure that they notify the Registrar if they intend to cancel the hearing within the specified timeframe to be eligible for a refund. The regulation also imposes a responsibility on the Registrar to process refund requests in accordance with the prescribed conditions. This includes verifying the timeliness of the notice provided and ensuring that the refund is made if the conditions for a refund are met.
Failure to comply with the provisions regarding the refund of hearing fees can lead to various consequences. While the regulations themselves do not explicitly state penalties for non-compliance, it is likely that any breach of the conditions for a refund could be challenged in court, potentially leading to civil consequences for the party found to have acted improperly. Additionally, if these regulations are seen as part of broader procedural requirements under the Family Law Act, there could be implications for any party found to have acted in bad faith or to have deliberately circumvented the provisions, potentially leading to sanctions under the Act. However, the specific penalties or consequences would depend on the interpretation and application of the Family Law Act and any relevant court decisions.