EXPLANATORY STATEMENT
Family Law Act
Family Law Rules (Amendment)
Statutory Rules No. 6 of 1986
Section 123 of the Family Law Act (the Act) enables the Judges of the Family Court of Australia and the Family Court of Western Australia to make Rules of Court providing, amongst other things, for and in relation to all matters necessary or convenient to be prescribed for the conduct of any business in Courts exercising jurisdiction under the Act, including prescribing matters relating to the costs of proceedings.
A majority of those Judges have made Statutory Rules No. 6 of 1986 which operate from 3 February 1986. The Statutory Rules amend the Family Law Rules to increase by 25.25% the costs solicitors may, subject to an agreement between solicitors and their clients to the contrary, charge for proceedings under the Act.
Although the Judges of the Family Courts have the power under section 123 of the Act to make Rules on these matters, the 25.25% increase is consistent with the first Report of the Federal Costs Advisory Committee delivered on 18 October 1985, which recommended an increase of this level for solicitors costs in family law matters.
The Family Court solicitors costs scale was last increased (by 20%) in 1982.
Overview
The Family Law Act Family Law Rules (Amendment) Statutory Rules No. 6 of 1986 were enacted to address the need for an adjustment in the costs solicitors may charge for proceedings under the Family Law Act. These amendments were made in response to recommendations from the Federal Costs Advisory Committee, which suggested an increase in costs for family law matters to better reflect current economic conditions. Enacted by the Judges of the Family Court of Australia and the Family Court of Western Australia under the authority granted by section 123 of the Family Law Act, the amendments increase the allowable costs by 25.25%, effective from 3 February 1986. This increase follows the previous adjustment in 1982, where the costs were raised by 20%, and is aimed at ensuring that legal fees in family law matters remain reasonable and reflective of the current economic climate. The policy objective is to maintain a fair and accessible family law system, ensuring that legal practitioners are adequately compensated for their services.
Scope and Application
The Family Law Act, supplemented by the Family Law Rules (Amendment) Statutory Rules No. 6 of 1986, applies to the Family Court of Australia and the Family Court of Western Australia, governing the conduct of proceedings and the costs associated with family law matters. This legislation encompasses all individuals and entities involved in family law proceedings, including solicitors who are subject to the prescribed costs scale. The jurisdictional reach of these rules is limited to the Commonwealth, ensuring uniformity in the application of family law across relevant courts. Notably, the amendment increases the costs that solicitors can charge for proceedings by 25.25%, a decision made in accordance with the recommendations of the Federal Costs Advisory Committee, and aligns with the precedent set by a previous 20% increase in 1982. While these rules provide a comprehensive framework for costs, they also allow for flexibility through agreements between solicitors and their clients that may stipulate different terms. The application and specifics of these rules can be further extended or modified through subordinate instruments made by the Judges under their authority granted by section 123 of the Act.
Key Provisions
The key provisions of Statutory Rules No. 6 of 1986, which amend the Family Law Rules, primarily involve the adjustment of costs for family law proceedings. Section 123 of the Family Law Act empowers the Judges of the Family Court of Australia and the Family Court of Western Australia to establish Rules of Court that encompass all matters necessary for the conduct of business within the courts exercising jurisdiction under the Act, including the costs of proceedings. These amended Rules, which took effect from 3 February 1986, specifically increase the allowable costs for solicitors by 25.25%. This amendment is made subject to any agreement between the solicitors and their clients to the contrary.
Under these amended Rules, the obligations on solicitors include adhering to the new cost structure unless a different arrangement is agreed upon with their clients. This change is intended to ensure that legal professionals are compensated appropriately for their services in family law matters, reflecting the updated cost scale. The amendments also require that all parties involved in family law proceedings are informed of the new cost implications and that any agreements on costs are clearly documented and agreed upon by both solicitors and clients.
There are no specific offences or penalties outlined in these Statutory Rules themselves, but breaches of the agreed costs or non-compliance with the Rules may lead to legal consequences under the broader provisions of the Family Law Act. For example, if a solicitor charges more than the permitted amount or fails to adhere to the agreed costs, this could potentially result in disciplinary action under the legal professional conduct rules, or in the case of fraud or misconduct, criminal penalties could be imposed. The exact nature and severity of penalties would depend on the specific circumstances of the breach and the applicable laws at the time.