Family Law Rules (Amendment) 1992 No. 45
EXPLANATORY STATEMENT
STATUTORY RULES 1992 No. 45
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 123 (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 038 rule 4 by increasing the basic composite amounts that can be charged for undefended dissolution proceedings. The amounts have been increased by 2.92% as recommended by the Federal Costs Advisory Committee.
Rule 4 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 2.92% as recommended by the Federal Costs Advisory Committee.
Rule 5 provides that the increase to the basic composite amounts set out In Rule 3 for undefended dissolution proceedings only apply in relation to proceedings commenced on or after 2 March 1992. Where undefended dissolution proceedings commenced on or after 5 November 1996 and before 2 March 1992 the basic composite amounts are to remain as set out in the existing provisions In Order 38 rule 4.
Rule 5.2 provides that the new Schedule 2 as set out in rule 4 only applies in relation to work done and services performed an or after 2 March 1992. The existing Schedule 2 still applies in relation to work done and services performed on or after 5 November 1990 and before 2 March 1992.
Overview
The Family Law Rules (Amendment) 1992 No. 45, issued by the authority of the Judges of the Family Court of Australia, represents an amendment to the existing Family Law Rules to address procedural and cost-related issues within family law proceedings. This amendment was enacted to provide updates and adjustments to the fees and costs associated with legal services in family law matters, reflecting recommendations from the Federal Costs Advisory Committee. The policy objective of these amendments is to ensure that the costs charged for legal services remain reflective of the current economic conditions and to maintain fairness in the legal process by keeping up with inflation and changes in the cost of living.
These amendments were necessary to respond to the evolving landscape of family law and the economic factors impacting legal services. By updating the basic composite amounts and the scale of costs, including counsel's fees, the Family Law Rules (Amendment) 1992 No. 45 aims to provide a more accurate representation of the expenses involved in family law proceedings, ensuring that both legal practitioners and clients are aware of the financial implications of their decisions within the legal system.
Scope and Application
The Family Law Rules (Amendment) 1992 No. 45 applies to the Family Court of Australia and other courts exercising jurisdiction under the Family Law Act 1975. The amendments, made under section 123 of the Family Law Act 1975, focus on modifying the practice and procedure rules within the Family Court, including the adjustment of basic composite amounts and the scale of costs for undefended dissolution proceedings. The amendments also incorporate the recommendations of the Federal Costs Advisory Committee, which resulted in a 2.92% increase in the allowable fees. The amendments are designed to take effect from 2 March 1992, with specific provisions ensuring that the changes apply only to proceedings and work done after this date, thereby maintaining existing fee structures for cases initiated prior to this amendment's effective date.
Key Provisions
The Family Law Rules (Amendment) 1992 No. 45 introduces modifications to the Family Law Rules, which were originally established on 2 January 1985. These amendments, effective from 2 March 1992, are aimed at updating the fees for legal services in family law matters. Rule 1 sets the commencement date of these amendments, while Rule 2 serves as a machinery provision. Rule 3 specifically amends rule 4 of Order 38, increasing the basic composite amounts that can be charged for undefended dissolution proceedings by 2.92%. This percentage increase was recommended by the Federal Costs Advisory Committee. Similarly, Rule 4 modifies Schedule 2, the Scale of Costs (Including Counsel's Fees), by raising the amounts that solicitors can charge in family law cases by the same 2.92%.
These amendments impose clear obligations on legal practitioners and parties involved in family law proceedings. Specifically, solicitors must now adhere to the updated fee structures outlined in the amended Schedule 2 when providing services in family law matters. For undefended dissolution proceedings, the new basic composite amounts will apply only to cases initiated on or after 2 March 1992. This means that any proceedings that were started between 5 November 1990 and 2 March 1992 will still be governed by the previous fee structures as per Rule 5. Furthermore, Rule 5.2 stipulates that the new Schedule 2 applies only to work and services performed on or after 2 March 1992, with the old schedule still in effect for work and services rendered between 5 November 1990 and 2 March 1992.
Non-compliance with these amended rules may result in various legal consequences. While the legislation does not explicitly detail specific offences, penalties, or consequences for breaches, it is likely that any failure to adhere to these updated fee structures could be considered a violation of the Rules of Court. Such violations might lead to disputes over legal fees, potential challenges in court regarding the appropriateness of fees charged, or other civil remedies. Additionally, persistent non-compliance might attract scrutiny from regulatory bodies overseeing legal practice, potentially leading to disciplinary actions against the offending practitioners.