Family Law Regulations (Amendment) 1996 No. 188
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 188
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 GovernorGeneral may make regulations prescribing court fees to be payable in respect of proceedings under the Act.
The current Family Law Regulations provides for a fee of $368 for a decree of dissolution or of nullity of marriage and for a fee of $616 for appeals to the Full Court of the Family Court.
The purpose of the proposed Regulations is to increase the fee for a decree of dissolution or of nullity of marriage and to introduce new fees payable in respect of proceedings under the Act. The overall level of cost recovery in all Commonwealth courts and tribunals is being increased to bring it into line with the average level of cost recovery in the State and Territory courts and these increases and the introduction of new fees are part of the overall Government strategy to reduce the Budget deficit.
The existing exemption and waiver provisions, which cover those in receipt of legal aid and those who would suffer financial hardship if they had to pay fees, remain to protect the disadvantaged. They are being standardised to ensure consistency between all Commonwealth courts and the Administrative Appeals Tribunal.
The regulations also make a number of amendments of an administrative nature.
Details of the Regulations are as follows:
Regulation 1 - Commencement
Regulation 1 provides for the Regulations to commence on 1 September 1996.
Regulation 2 - Amendment
Regulation 2 provides for the Family Law Regulations to be amended as set out in these Regulations.
Regulation 3 - Regulation 11 (Fee in respect of proceedings for divorce or nullity)
Subregulation 3.1 omits existing regulation 11 and substitutes new regulation 11.
New subregulation 11 (1) provides for both increased and new filing fees and new hearing fees for defended matters.
New paragraph 11(1)(a) provides that for a decree of dissolution or of nullity of marriage the increased filing fee is $460 and the new hearing fee for a defended matter is $400. New paragraph 11(1)(b) provides that for a declaration of the validity of a marriage or of a dissolution or annulment of a marriage there will be a filing fee of $460 and a new hearing fee for a defended matter of $400. New paragraph (11)(1)(c) provides that for financial or Part VII proceedings the new filing fee is $250 and the new hearing fee for a defended matter is $400. (Part VII proceedings are those dealing with children). New paragraph (11)(1)(d) provides for a hearing fee for a defended matter in appeal from a court of summary jurisdiction to the Family Court.
Subregulation 11(2) provides that usually a fee will be payable by the party seeking that certain actions take place, but the provision also provides for a discretion for the court, a Judge or a registrar to order that another party pay. This may occur, for example, where one party has been deliberately obstructive.
New subregulation 11(3) provides that a filing fee is payable by the applicant at the time of filing the application and new subregulation 11 (4) provides that a hearing fee for a defended matter is payable at the time when a date is set for the hearing of the proceedings.
New subregulation 11(5) provides for circumstances when a filing fee has not been paid. A registrar must not accept an application for filing unless any filing fee which is payable has been paid.
New subregulation 11(6) provides for circumstances when a hearing fee for a defended matter has not been paid. These provisions are the same as the equivalent provisions in the High Court of Australia (Fees) Regulations and the Federal Court of Australia Regulations. A court, Judge or a registrar may order that no proceedings take place, except by leave, in the matter and may vacate the date fixed for hearing. A person other than the person liable to pay the fee may pay the fee without affecting any power of the court to make an order for costs.
New subregulation 11(7) provides for the circumstances in which a filing fee or a hearing fee for a defended matter is not payable.
These Regulations continue the previous exemptions if the fee has been paid by another person (paragraph (7)(a)) and if the marriage has already been dissolved or annulled (paragraph (7)(b)). The Regulations also provide that the fee is not payable if the applicant is in receipt of legal aid (paragraph (7)(c)).
The Regulations also provide (paragraph (7)(d)) that the fee is not payable if the applicant is:
* the holder of one of a number of current cards issued by the Department of Social Security (subparagraph (i)); or
* the holder of any other card issued by the Department of Social Security or the Department of Veteran's Affairs that certifies entitlement to Commonwealth health concessions (subparagraph (ii)); or
* an inmate of a prison or otherwise detained (subparagraph (iii)); or
* a child under 18 years old (subparagraph (iv)); or
* an inmate of a prison or otherwise detained (subparagraph (iii)); or
* a child under 18 years old (subparagraph (v)); or
* in receipt of AUSTUDY (subparagraph (v)) or benefits under ABSTUDY (subparagraph (vi)).
Paragraph 16(3)(c) provides that the fee for appeal is not payable if a registrar, having regard to the income, day to day living expenses, assets and liabilities of the person liable to pay the fee, waives the fee on the ground of financial hardship. The previous Regulations merely provided that the fee for appeal was not payable if the Registrar is satisfied that payment of the fee would impose hardship on the applicant. There was no provision in the previous Regulations as to the matters to which the Registrar had to have regard when making the decision whether or not to waive the fee for appeal.
Subregulation 5.2 amends subregulation 16(4) to provide that, under subregulation (3), a registrar must refund the amount of the fee paid, if the fee was not payable, to the person who paid it. The previous Regulations provided for the Principal Registrar to refund the fee.
Subregulation 16(6) provides that in regulation 16 "appeal" includes "cross appeal" and "appellant" includes "cross appellant".
Regulation 6 - New regulation 16A
Subregulation 6.1 inserts new regulation 16A which provides for review by the Administrative Appeals Tribunal of a decision by a registrar of the Family Court of Australia regarding waiver of fees on the grounds of financial hardship. Subregulation 16A(2) provides that if a registrar of the Family Court of Australia refuses to waive a fee, a registrar of the Family Court of Australia must give the applicant written notice of the decision (paragraph 16A(2)(a)) and of the applicant's rights to request a statement of reasons for the decision (paragraph 16A(2)(b)). Failure to give this notice does not affect the validity of the decision (subregulation 16A(3)).
In relation to a decision by a registrar of a State or Territory court, exercising family law jurisdiction, to refuse to waive a filing fee or a hearing fee for a defended matter State or Territory procedures for review of a decision of a registrar will apply.
Regulation 7 - New Part 11AA
Subregulation 7.1 inserts new Part IIAA - AUTOMATIC VARIATION OF FEES.
New regulation 21AA provides that a fee, prescribed by regulation 11 or 16, is increased biennially, on the anniversary of 1 July 1996.
New regulation 21AB provides for the method by which the increase is to be calculated. New subregulation 21AB(1) defines a number of the terms necessary to calculate the increase, including the CPI number as being the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician.
* in receipt of AUSTUDY (subparagraph (v)) or benefits under ABSTUDY (subparagraph (vi)).
These Regulations ensure that the provisions regarding exemption from liability to pay fees in the Family Court are consistent with the provisions regarding exemption from liability to pay fees in the other Commonwealth courts and the Administrative Appeals Tribunal.
Paragraph (7)(e) provides that the fee is not payable if a registrar, having regard to the income, day to day living expenses, assets and liabilities of the person liable to pay the fee, waives the fee on the ground of financial hardship. The previous Regulations merely provided that the fee is not payable if a registrar is satisfied that payment of the fee would impose hardship on the applicant. There was no provision in the previous Regulations as to the matters to which a registrar had to have regard when making the decision whether or not to waive the fee.
The provisions in these Regulations about waiver of fees on the grounds of financial hardship are consistent with the provisions regarding waiver on the grounds of financial hardship in the other Commonwealth courts and the Administrative Appeals Tribunal.
Subregulation 11(8) provides that if a fee has been paid and it was not payable a registrar must refund the amount of the fee paid to whoever paid it.
Regulation 4 - Regulation 15 (Institution etc. of proceedings by persons holding certain offices)
Subregulation 4.1 amends current subregulation 15(3) to correct a drafting error. The provision now reads "a child", rather than "a a child".
Regulation 5 - Regulation 16 (Fee in respect of appeals)
The Regulations do not increase the fee for appeals, which remains at $616.
Under the previous Regulations, the appeal fee was only not payable if the appellant has been granted legal aid or the payment of the fee would impose financial hardship on the appellant. The Regulations expand upon the situations in which fees are exempted by Regulation and upon the provisions for waiver, consistent with the provisions outlined above for the filing fee and the hearing fee for a defended matter.
Subregulation 5.1 omits existing subregulation 16(3) and inserts new subregulation 16(3). Paragraph 16(3)(a) provides that the fee is not payable if the applicant is in receipt of legal aid.
Paragraph 16(3)(b) provides that the fee for appeal is not payable if the applicant is:
* the holder of one of a number of current cards issued by the Department of Social Security (subparagraph (i)); or
* the holder of any other card issued by the Department of Social Security or the Department of Veteran's Affairs that certifies entitlement to Commonwealth health concessions (subparagraph (ii)); or
New subregulation 21AB (2) provides for the formula for calculating the fee increases. As examples of how the increases are to be calculated: at the end of the 2 year period commencing 1 July 1996, the each of the existing fees will be multiplied by the CPI number for the March quarter 1998 and divided by the CPI number for the March quarter 1996. The fees will only be increased if the CPI number for the March quarter 1998 is greater than that for the March quarter 1996. Similarly, at the end of the 2 year period commencing 1 July 1998, each of the existing fees will be multiplied by the CPI number for the March quarter 2000 and divided by the CPI number for the March quarter 1998. Again, the fees will only be increased if the CPI number for the March quarter 2000 is greater than that for the March quarter 1998.
New subregulation 21AB(3) provides for the rounding of the increased fees to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.
New subregulation 21AB(4) provides that if the Australian Statistician publishes a replacement CPI number in respect of an already published CPI number for a March quarter, the replacement CPI number is to be disregarded. The effect of this subregulation is that once the fees have been increased biennially, in accordance with officially published CPI numbers, any alteration in the CPI numbers won't necessitate an alteration in the increased fees during the biennium.
New subregulation 21AB(5) provides that if the Australian Statistician changes the reference base for the CPI then the new reference base will be adopted for the purposes of these Regulations.
These Regulations commence on 1 September 1996.