Family Law Regulations (Amendment) (Amendment) 1996 No. 201
EXPLANATORY STATEMENT
STATUTORY RULES 1996 No. 201
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL AND MINISTER FOR JUSTICE
FAMILY LAW ACT 1975
FAMILY LAW REGULATIONS (AMENDMENT) (AMENDMENT)
Paragraph 125(1)(c) of the Family Law 1975 (the Act) provides that the Governor-General may make regulations prescribing court fees to be payable in respect of proceedings under the Act.
Current subparagraph 11(1)(c)(i) of the Family Law Regulations, which was introduced in the Family Law Regulations (Amendment) [Statutory Rules 1996 No. 188] and commenced on 1 September 1996, provides for a filing fee of $250 for any application, in relation to financial or Part VII proceedings, other than an application for consent orders or for registration of a parenting plan or a maintenance agreement.
It would appear that the wording of subparagraph 11 (1)(c)(i) may have unintended consequences and be interpreted as applying to a range of situations, such as the filing of an application using Form 8 seeking interim or procedural orders, to which it was not intended to apply.
The purpose of the proposed Regulations is clarify subparagraph 11 (1)(c)(i).
Details of the Regulations are as follows:
Regulation 1 - Commencement
Regulation 1 provides for that the Regulations are taken to have commenced on 1 September 1996, which is when the Family Law Regulations (Amendment) that these Regulations are amending commenced.
As the Regulations do not affect the rights of a person so as to disadvantage that person, and in fact only disadvantage the Commonwealth, the Regulations do not offend s.48(2) of the Acts Interpretation Act 1901.
Regulation 2 - Amendment
Regulation 2 provides for the Family Law Regulations (Amendment) (being Statutory Rules 1996 No. 188) to be amended as set out in these Regulations.
Regulation 3 -Regulation 3 (Regulation 11 (Fees in respect of proceedings for divorce or nullity))
Subregulation 3.1 omits existing subparagraph 11 (1)(c)(i) and substitutes new subparagraph 11 (1)(c)(i).
New subparagraph 11 (1)(c)(i) provides that a filing fee of $250 is payable for each of the following applications:
* an application for Final orders (Form 7 under the current Rules of Court); and
* a Response to an application for Final orders (Form 7A under the current Rules of Court).
Given that new subparagraph 11 (1)(c)(i) refers to the specific applications which attract fees, it is no longer necessary to specifically exempt applications for consent orders, registration or parenting plans or registration of maintenance agreements as was done in the previous subparagraph 11 (1)(c)(i).
Subregulation 3.2 corrects a drafting error.
These Regulations are taken to have commenced on 1 September 1996.
Overview
The Family Law Regulations (Amendment) (Amendment) 1996 No. 201 was enacted to address an ambiguity in the Family Law Regulations that was potentially leading to unintended consequences in the interpretation of court fees for certain family law proceedings. This regulation was introduced to correct a drafting error in the Family Law Regulations (Amendment) [Statutory Rules 1996 No. 188], which had commenced on 1 September 1996. The Family Law Act 1975 empowers the Governor-General to make regulations concerning court fees, and the amendments seek to refine the application of these fees, particularly for applications for final orders and responses to such applications. The policy objective of these regulations is to ensure that the application of fees is clear and accurately reflects the intended scope of the legislation, thereby avoiding any unintended disadvantages to individuals while maintaining the Commonwealth's fiscal interests.
Scope and Application
The Family Law Regulations (Amendment) (Amendment) 1996 No. 201 applies to proceedings under the Family Law Act 1975, specifically targeting the court fees related to certain applications within financial or Part VII proceedings. This regulation primarily affects individuals and entities involved in family law matters who file applications for final orders or responses to such applications, as specified by Forms 7 and 7A in the current Rules of Court. The regulation does not apply to applications for consent orders, registration of parenting plans, or maintenance agreements, which have been clarified to be exempt from the filing fee. These Regulations are applicable nationally across Australia as they pertain to federal legislation. The amendments clarify and correct the scope of the fees outlined in the Family Law Regulations (Amendment) 1996 No. 188, ensuring that only the specified applications for final orders are subject to the $250 filing fee. The changes do not disadvantage any individual or entity but rather rectify an unintended broad application of the previous fee structure.
Key Provisions
The main operative sections of the Family Law Regulations (Amendment) (Amendment) 1996 No. 201 are Regulation 1, which specifies the commencement date of the Regulations, and Regulation 3, which amends the Family Law Regulations (Amendment) (being Statutory Rules 1996 No. 188). Regulation 3, in particular, modifies subparagraph 11(1)(c)(i) to clarify the types of applications for which a filing fee is payable. This regulation aims to rectify an unintended consequence of the previous subparagraph, which may have applied to situations it was not intended to cover.
These Regulations impose specific obligations on parties or entities governed by the Family Law Act 1975. Under the amended subparagraph 11(1)(c)(i), a filing fee of $250 is now payable for applications for Final orders (Form 7) and responses to such applications (Form 7A). This clarification ensures that the fee applies only to these specified applications and removes the need for separate exemptions for other types of applications such as consent orders, registration of parenting plans, or maintenance agreements. This amendment ensures that the fee structure is applied accurately and consistently.
The Regulations do not introduce new offences or penalties, as they are primarily intended to clarify and correct existing provisions. However, failure to comply with the amended fee requirements could lead to procedural issues or delays in court proceedings. For instance, if a party fails to pay the specified filing fee for an application for Final orders or a response to such an application, it may result in the application not being processed until the fee is paid. While there are no additional penalties stipulated in these Regulations, non-compliance may still incur additional costs or delays for the parties involved.
It is important to note that these Regulations do not disadvantage any person and, in fact, primarily affect the Commonwealth. Given this, the Regulations do not contravene section 48(2) of the Acts Interpretation Act 1901, which protects individuals from being disadvantaged by amendments to legislation. The intent behind these amendments is to ensure clarity and fairness in the application of fees under the Family Law Act 1975.