EXPLANATORY STATEMENT
Family Law Rules
Family Law Rules (Amendment)
Statutory Rules No 74 of 1987
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. 4 of 1987 which operate from 11 May 1987. The statutory Rules amend the Family Law Rules to increase by 2.8% 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 2.8% increase is consistent with the Report of the Federal Costs Advisory Committee delivered on 10 March 1987 which recommended an increase of this level for solicitors costs in family law matters.
Rule 1 provides for increases in the basic composite amount chargeable for work involved in an undefended application for dissolution of marriage: The amount that may be charged has risen as follows:
(a) where the solicitor employed another solicitor as an agent-
(i) if there is a child of the marriage under 18 from $347 to 357; or
(ii) in any other case from $246 to $253.
(b) Where the solicitor did not so employ another solicitor-
(i) if there is a child of the marriage under 18 from $427 to 439; or
(ii) in any other case from $327 to 336.
Rule 2 amends Order 40 rule 1 of the current Rules to vary interest attracted on amounts of moneys to be paid pursuant to Family Court orders from 10 per cent per annum to 15 per cent per annum.
Rule 3 provides for the repeal of the former Schedule 2 “Scale of Costs” to the Family Law Rules and its replacement with a new Schedule 2 “Scale of Costs”. This effects an increase in costs allowable for legal work in Family Law matters.
Rule 4 provides for a commencement date of 11 May 1987. Proceedings of the kind referred to in Rule 1 will attract the new fees after that date. Work done of the kind referred to in Rule 3 will attract the new fee after that date.
EXPLANATORY STATEMENT
FAMILY LAW ACT 1975
FAMILY LAW RULES
(Statutory Rules No. 74 of 1987)
Overview
The Family Law Rules (Amendment) Statutory Rules No 74 of 1987 were enacted to amend the Family Law Rules in alignment with the Federal Costs Advisory Committee’s recommendations. The Family Law Act 1975 grants the Judges of the Family Court of Australia and the Family Court of Western Australia the authority to create Rules of Court, including those relating to the costs of proceedings. These rules were amended to increase the costs solicitors may charge for family law matters by 2.8%, effective from 11 May 1987, unless otherwise agreed by solicitors and their clients. This amendment was made to keep the legal costs in line with the recommendations of the Federal Costs Advisory Committee, which aimed to ensure that the costs remain fair and reflective of the services provided. The Family Law Rules (Amendment) Statutory Rules No 74 of 1987 were made by the majority of the Judges of the Family Court of Australia and the Family Court of Western Australia and came into effect on 11 May 1987.
Scope and Application
The Family Law Rules (Amendment) Statutory Rules No. 74 of 1987 applies to legal practitioners, specifically solicitors, who are engaged in family law proceedings under the Family Law Act 1975. These Rules are concerned with the conduct of business in the Family Court of Australia and the Family Court of Western Australia, particularly in relation to the costs of proceedings. They establish the allowable fees for legal services provided in such proceedings, including undefended applications for dissolution of marriage. The Rules are applicable nationwide, given that they amend the Family Law Rules which operate under the jurisdiction of the Commonwealth. There are no explicit exclusions or exemptions mentioned within the text, and the changes are effective from 11 May 1987. The amendments align with the recommendations of the Federal Costs Advisory Committee and provide for a specific increase in fees and the interest rate on moneys to be paid pursuant to Family Court orders. Subordinate instruments, such as the new Schedule 2 “Scale of Costs”, further define the allowable costs for legal work in family law matters.
Key Provisions
The Family Law Rules (Amendment) Statutory Rules No. 74 of 1987, which took effect on 11 May 1987, provide amendments to the Family Law Rules in alignment with the Family Law Act 1975. These amendments primarily concern changes to the costs that solicitors may charge for proceedings under the Act. Rule 1 details the new fees for undefended applications for the dissolution of marriage, reflecting a 2.8% increase. For cases involving a child under 18, the basic composite amount has increased from $347 to $357 if another solicitor was employed as an agent, or from $427 to $439 if no other solicitor was employed. In cases without a child under 18, the fees have increased from $246 to $253 and from $327 to $336, respectively. Rule 2 adjusts the interest rate on moneys to be paid under Family Court orders from 10% to 15% per annum. Rule 3 repeals the former Schedule 2 “Scale of Costs” and introduces a new Schedule 2, effectively increasing the allowable costs for legal work in family law matters. Lastly, Rule 4 sets the commencement date for these amendments at 11 May 1987, ensuring that proceedings and work done after this date will be subject to the new fee structure.
The Family Law Rules (Amendment) Statutory Rules No. 74 of 1987 impose several obligations and requirements on solicitors and clients involved in family law proceedings. Solicitors must adhere to the new fee schedules outlined in Rule 1 for undefended applications for the dissolution of marriage. They are also required to charge interest at the rate specified in Rule 2, which is now 15% per annum on amounts to be paid pursuant to Family Court orders. Additionally, solicitors must refer to the new Schedule 2 “Scale of Costs” when determining allowable costs for legal work in family law matters, as per Rule 3. Clients should be aware of these changes and any potential agreements with their solicitors that may affect the applicable fees. The amendments also require that any proceedings and work done after 11 May 1987 comply with the updated fee structures and interest rates.
Breaching the provisions of the Family Law Rules (Amendment) Statutory Rules No. 74 of 1987 may lead to civil consequences for both solicitors and clients. Solicitors who fail to adhere to the new fee schedules or interest rates may be subject to complaints and potential disciplinary actions by the relevant legal authorities. Similarly, if a solicitor does not properly inform a client of the new fees and charges in accordance with Rule 1, they may face legal repercussions for not fulfilling their contractual obligations. While the Explanatory Statement does not specify criminal offences or penalties for these breaches, non-compliance could result in financial penalties or civil lawsuits. It is crucial for both solicitors and clients to understand and comply with these amendments to avoid any legal disputes or financial penalties.