EXPLANATORY STATEMENT
STATUTORY RULES 1990 No. 348
Issued by the authority of the Judges of the 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.
2. Subsection 123(2) of the Family Law Act provides that the sections 48, 48A, 48B, 49 and 50 of the 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.
3. The present Family Law Rules came into operation on 2 January 1985. They have been regularly reviewed since then.
4. The amendments made by these Rules provide for an increase of 13.56% in fees that may be charged for work done in family law proceedings. The increase gives effect to the recommendations on solicitors’ costs contained in the Eighth Report of the Federal Costs Advisory Committee. The last increase in these costs was in April 1989.
Details of the provisions
Regulation 1 provides that the Rules commence on 5 November 1990.
Regulation 2 is a machinery provision.
Angulation 3 provides for increases in the amounts permitted to be charged under Order 38, Rule 4 which specifies the basic composite amounts that may be charged for costs for undefended proceedings for a decree of dissolution of marriage.
Regulation 4 provides for the replacement of the existing Costs Schedule with a new Costs Schedule revised in accordance with the recommendations of the Federal Costs Advisory Committee.
Regulation 5 is a transitional provision which provides that the previous Schedule continues to apply in relation to.
(a) proceedings commenced, and
(b) work done and services performed;
before these Rules come into force.
Overview
The Family Law Rules 1990, enacted by the Judges of the Family Court of Australia, amend the Family Law Rules to address the need for an adjustment in fees charged for family law proceedings. This adjustment was necessitated by the recommendations outlined in the Eighth Report of the Federal Costs Advisory Committee, which highlighted the need for updated cost structures to reflect current economic conditions and legal service costs. The Rules aim to implement a 13.56% increase in the fees that can be charged for work undertaken in family law matters, aligning with the advisory committee's recommendations. This amendment ensures that the costs associated with legal services in family law proceedings remain fair and reflective of the current economic environment, thus supporting the policy objective of maintaining an equitable and efficient family law system.
Scope and Application
The Statutory Rules 1990 No. 348, made under the authority of the Judges of the Family Court of Australia, pertain to amendments of the Family Law Rules concerning the Family Law Act 1975. These rules apply to the practice and procedure of the Family Court and other courts exercising jurisdiction under the Family Law Act. They affect legal practitioners and parties involved in family law proceedings by adjusting the fees that can be charged for services rendered. The amendments specifically target the increase of fees by 13.56%, reflecting the recommendations of the Eighth Report of the Federal Costs Advisory Committee. Geographically, the rules apply within the Commonwealth of Australia, as they concern federal jurisdiction under the Family Law Act. The rules do not explicitly state exclusions or exemptions but apply to all family law proceedings initiated and work performed after the commencement date of 5 November 1990, as outlined in Regulation 1. Transitional provisions in Regulation 5 ensure that the previous fee schedule remains applicable to proceedings and work done before this date.
Key Provisions
The Family Law Rules, as amended by Statutory Rules 1990 No. 348, introduce changes primarily centred around fee increases for legal services rendered in family law matters. The operative sections of these amendments are Regulation 3 and Regulation 4. Regulation 3 increases the allowable fees for work done in family law proceedings by 13.56%. This increase is aligned with the recommendations from the Eighth Report of the Federal Costs Advisory Committee and is intended to reflect updated costs for solicitors’ services. Regulation 4 replaces the existing Costs Schedule with a new one that adheres to the committee’s recommendations.
The amendments impose specific obligations on legal practitioners and parties involved in family law proceedings. Legal practitioners must now adhere to the new fee schedule outlined in Regulation 4, ensuring that their billing reflects the updated composite amounts specified under Order 38, Rule 4. Parties entering into family law proceedings after the commencement of these rules on 5 November 1990 will be subject to these new fee structures. However, Regulation 5 ensures that any proceedings or work completed before the rules took effect will still be governed by the previous fee schedule.
Failure to comply with the new fee regulations could lead to potential disputes over billing and recovery of costs. Although the rules do not explicitly outline penalties for non-compliance, breaches of the stipulated fee structures could result in legal challenges regarding the validity of charges. Furthermore, courts may scrutinise adherence to these rules when determining the reasonableness of legal costs in family law disputes. It is important for practitioners and clients to be aware of these changes to avoid any misunderstandings or disputes over legal fees.