Family Law Regulations (Amendment) 1991 No. 447
EXPLANATORY STATEMENT
Statutory Rules 1991 No. 447
Family Law Regulations (Amendment)
Subsection 125(1) of the Family Law Act 1975 provides that the Governor-General may make regulations prescribing court fees in respect of proceedings under the Act.
The purpose of the Family Law Regulations (Amendment) Regulations is to amend the Family Law Regulations by replacing existing provisions relating to the fees payable in relation to proceedings under the Act with new provisions which introduce new fees.
The fees now payable are not increased by the proposed regulations.
Regulation 1 is formal. It provides that the regulation is to commence on 1 April 1992.
Regulation 2 is formal.
Regulation 3 of the proposed regulations omits regulation 11, which provides for the fee payable in respect of proceedings for divorce or nullity. This provision is now included in the revised regulation 16.
Regulation 4 omits regulation 16 which provides for fees in respect of appeals and substitutes a regulation specifying the level of fees payable on filing certain applications and appeals and adds new regulation 16A which provides for a hearing fee.
New subregulation 16(1) provides that the fees payable in relation to applications and appeals are the fees set out in Schedule 8.
Subregulation 16(2) provides that a fee is not payable for proceedings for dissolution or annulment if the marriage has been disolved or annulled, or if the person liable to pay the fees -
• has been granted legal aid under a legal aid scheme or service established under the Commonwealth, State or Territory law or approved by the Attorney-General; or
• is the holder of a pensioner health benefit card, a health benefit card, a pharmaceutical benefits concession card or a health care card; or
• an inmate of a prison or is otherwise lawfully detained in a public institution; or
• a child under the age of 18 years; or
• in receipt of AUSTUDY within the meaning of the AUSTUDY Regulations; or
• the Registrar waives payment of the fee because, in his or her opinion, payment of the fee would cause financial hardship. The Registrar is to have regard to the income, assets and liabilities of the applicant in making his or her decision.
New subregulation 16(3) provides that a registrar may defer payment of a fee if, in the opinion of the registrar, an application is attended by urgency that overides the requirement of payment of the fee at the time of filing. This will allow a registrar to accept an urgent application in circumstances when the applicant does not have ready access to money, or for some other reason cannot pay the fee at the time of filing an application.
Subregulation 16(4) provides that a filing fee which is not paid at the time of filing is payable within 30 days, and may be recovered as a debt due to the Commonwealth.
Subregulation 16(5) provides that a fee which was not payable, but has been paid, is refundable.
New Regulation 16A provides for the introduction of hearing fees.
New subregulation 16A(1) provides that a fee of $500 is payable when the Court, a Judge or a registrar fixes a date for the hearing in the Family Court of:
(a) an application, or an issue or question in an application; or
(b) an appeal to the Full Court (whether from a decision of the Family Court or from a decision of another court).
New subregulation 16A(2) provides for the non-payment of a hearing fee for an application or appeal if:
• the hearing is of an interlocutory nature only, or
• if a hearing fee has been paid, in relation to that application or appeal, under the regulations or another law of the Commonwealth, and has not been refunded, or
• the application or appeal is one to which paragraph 16(3) (a), (b) or (c) applies.
New subregulation 16A(3) provides for the applicant or the appellant to be liable to pay the hearing fee or, if the Court, a Judge or a registrar so orders, the person liable to pay a hearing fee can be:
• another party to the application or appeal, or
• 2 or more of the parties to the application or appeal in the proportions ordered by the Court, a Judge or a registrar.
New subregulation 16A(4) provides that if a hearing fee that is payable for an application or appeal is unpaid the Court, a Judge or a registrar may order that no proceedings, or no proceedings other than specified proceedings, shall be heard and, in order to ensure that a matter is heard, a person other than the person liable to pay the fee may pay the fee without affecting any power of the Court, a Judge or a registrar to make an order for costs in respect of the amount of the fee.
New subregulation 16A(5) provides for the refund of the hearing fee if the hearing of the application or appeal for which the fee was paid does not proceed or the fee was not payable. To obtain a refund on the ground that the hearing did not occur it is necessary that a registrar have been informed no less than 10 working days before the hearing date that the matter would not be proceeding.
New subregulation 16B(1) provides for an application to be made to review a decision by the Registrar or a District Registrar under paragraph 16(2)(d) or subregulation 16(3).
New subregulation 16B(2) provides that if the Registrar makes a decision under paragraph 16(2)(d) or subregulation 16(3), a notice must be given to the person liable to pay the fee:
(a) containing the terms of the decision; and
(b) giving written reasons for the decision; and
(c) containing a statement to the effect that subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of the decision.
New subregulation 16B(3) provides that a notice under subregulation 16B(2) must be given within 28 days of the date of the decision and new subregulation 16B(9) provides that a failure to include in a notice under subregulation 16B(2) a statement of the kind mentioned in paragrph (2)(c) does not affect the validity of the decision.
Regulation 5 provides a new Schedule of fees. New Schedule 8 specifies the fees payable on filing certain applications and appeals in the Family Court.
Regulation 6 provides that the amendments made by these regulations will apply only to applications and appeals filed on or after 1 April 1992.
Authorised by the Attorney-General