Family Law Rules (Amendment) 1993 No. 51
EXPLANATORY STATEMENT
STATUTORY RULES 1993 No. 51
Issued by the authority of the Judges of Family Court of Australia
AMENDMENT OF THE FAMILY LAW RULES
Section 123 of the Family Law Act 1975 provides that the Judges of the Family Court of Australia, or a majority of them, may make Rules of Court providing for the practice and procedure to be followed in the Family Court and other courts exercising jurisdiction under the Family Law Act.
Section 121 (2) of the Family Law Act provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act 1901 apply in relation to the Rules of court as if references in those sections to regulations were references to Rules of court.
The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed since that date.
DETAILS OF THE PROVISIONS
Rule 1 provides the commencement date.
Rule 2 is a machinery provision.
Rule 3 amends Schedule 2 Scale of Costs (Including Counsel's Fees) by increasing the amounts that can be charged by solicitors in Family Law proceedings. Each of the items in the scale have been increased by the percentage recommended by the Federal Costs Advisory Committee.
Rule 4 provides that the new Schedule 2 as set out in rule 3 only applies in relation to work done and services performed on or after 1 May 1593. The existing Schedule 2 still applies in relation to work done and services performed on or after 2 March 1992 and before 1 May 1993.
Overview
The Family Law Rules (Amendment) 1993 No. 51 was enacted to address the need for updating the Family Law Rules, which had been in place since 1 January 1985. This amendment was introduced to ensure the Rules remain relevant and effective in addressing the practice and procedure in the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act 1975. The Rules were made under the authority of the Judges of the Family Court of Australia, as provided for in section 123 of the Family Law Act. The key policy objective was to align the fees for legal services with current economic conditions, as recommended by the Federal Costs Advisory Committee, thus ensuring fair compensation for legal practitioners while maintaining the efficiency of the court system.
The amendments included adjustments to the Schedule 2 Scale of Costs, which determines the fees that solicitors can charge in Family Law proceedings. The increase in fees was implemented to reflect changes in the economic environment since the original Rules were established. The new fees were set to apply to work and services performed on or after 1 May 1993, while provisions were made to ensure the existing fees applied to work and services performed between 2 March 1992 and 1 May 1993. This transitional approach aimed to provide clarity and stability during the period of change.
Scope and Application
The Family Law Rules (Amendment) 1993 No. 51 applies to individuals and entities involved in Family Law proceedings in Australia, specifically those governed by the Family Law Act 1975. It applies to the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act. This amendment primarily focuses on adjusting the costs, including counsel's fees, that solicitors can charge for their services in Family Law cases. The amendment to Schedule 2, effective from 1 May 1993, raises the allowable fees by the percentage recommended by the Federal Costs Advisory Committee. However, the amendment does not affect work done and services performed before this date, for which the previous Schedule 2 continues to apply. The amendment is issued under the authority of the Judges of the Family Court of Australia and is designed to align with the Acts Interpretation Act 1901, ensuring consistency with other legislative rules and regulations.
Key Provisions
The Family Law Rules (Amendment) 1993 No. 51 primarily amends the Family Law Rules 1984 to update the scale of costs for solicitors in family law proceedings. Rule 1 states the commencement date for these amendments. Rule 2 is a machinery provision, ensuring the rules are legally valid. Rule 3 updates Schedule 2, the Scale of Costs, which includes counsel's fees, by increasing the amounts that can be charged by solicitors. This increase is based on the percentage recommended by the Federal Costs Advisory Committee. Rule 4 specifies that the new costs schedule applies to work done and services performed on or after 1 May 1993, while the existing schedule continues to apply to work done between 2 March 1992 and 1 May 1993.
The amended Family Law Rules impose specific obligations on solicitors and parties involved in family law proceedings. The primary obligation is the adherence to the new scale of costs as outlined in the amended Schedule 2. This means that any fees charged by solicitors for work done after 1 May 1993 must reflect the updated rates. Additionally, the rules require proper documentation and adherence to the timelines specified in the rules, ensuring that both parties are aware of the costs involved and can plan accordingly.
The legislation does not explicitly outline offences or penalties for breach of the amended rules. However, it is understood that failure to comply with the rules may result in disputes over costs, which could lead to further legal proceedings. The Family Court has the authority to manage and enforce the rules, and any breaches could potentially be addressed through the court's inherent jurisdiction to control its own processes and to ensure fair and efficient administration of justice. While specific penalties are not detailed in the explanatory statement, non-compliance could lead to sanctions or other remedies as deemed appropriate by the court.