Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022

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Legislation au F2022L01585 CourtRules Not in force Legislative Instrument

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Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022

EXPLANATORY STATEMENT


Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022

 

EXPLANATORY STATEMENT

 

Issued by the authority of the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2)

Section 8 of the Federal Circuit and Family Court of Australia Act 2021 (‘the FCFCOA Act’) provides that, from the commencement day of the FCFCOA Act, the Family Court of Australia was continued in existence as the Federal Circuit and Family Court of Australia (Division 1) (‘the FCFCOA (Division 1)’) and that the Federal Circuit Court of Australia was continued in existence as the Federal Circuit and Family Court of Australia (Division 2) (‘the FCFCOA (Division 2)’).

Section 217 of the FCFCOA Act provides, among other things, that the Chief Judge of the FCFCOA (Division 2) may make Rules of Court providing for, or in relation to, the practice and procedure to be followed in the FCFCOA (Division 2), as well as for all matters and things incidental to any such practice or procedure, or that are necessary or convenient to be prescribed for the conduct of any business of the FCFCOA (Division 2).

The Chief Judge made the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (‘the Rules’) on 26 August 2021. These amending rules, the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022 (‘the amendments’), have now been made to amend the Rules, specifically the scale of costs in Schedule 1 to the Rules.

Subsection 217(3) of the FCFCOA Act provides that the Legislation Act 2003 (Cth) (other than sections 8, 9, 10, 16 and Part 4 of Chapter 3) applies to rules of court. In this application, a reference to a legislative instrument in the Legislation Act 2003 (Cth) is to be read as a reference to a rule of court and a reference to a rule-maker as a reference to the Chief Judge.

The Court has proceeded on the basis that a statement of compatibility with human rights is not required to be included in an explanatory statement to rules of court, as whilst the FCFCOA Act applies the Legislation Act 2003 (Cth) to rules of court, it does not expressly translate a reference to a legislative instrument in legislation other than the Legislation Act 2003 (Cth) into a reference to rules of court, such as in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

The Court notes that different views are held as to whether a statement of compatibility with human rights is formally required to be included in an explanatory statement to rules of court. For the avoidance of doubt, a statement of compatibility with human rights is included below.

Statement of Compatibility with Human Rights

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022

This legislative instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

The instrument only updates the figures in the scale of costs in Schedule 1 to the Rules.

Article 14(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that all persons shall be equal before the courts and that where their rights or obligations are to be determined in legal proceedings they shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The award of costs to a party who has been successful before the Court in accordance with the relevant law is an important aspect of ensuring equality before the courts and a fair process for all parties. The ability for a successful party to recoup legal costs ensures they are not prevented from seeking a remedy through the Court, which in turn enhances access to justice.

This instrument otherwise has limited human rights implications and is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

 

  1. General Outline

Schedule 1 contains the amendment to the Rules, which is the repeal of Schedule 1 to the Rules and its replacement with a new Schedule which contains updated amounts for each Item in the table that comprises the scale of costs in family law and child support matters.

 

2.      Consultation

Consultation was undertaken during the process of updating the amounts for each Item in the scale of costs through the Joint Costs Advisory Committee, which functions to review and recommend variations to the quantum of costs contained in the rules made by the federal courts. The Joint Costs Advisory Committee comprises representatives of the High Court of Australia, Federal Court of Australia, FCFCOA (Division 1) and FCFCOA (Division 2). The Committee sought written submissions from the Commonwealth Attorney-General’s Department, the Law Council of Australia, the National Association of Community Legal Centres and National Legal Aid inviting each of them, and their respective constituent bodies or State/Territory counterparts, to make submissions to the review. Further, through publication on the Court website, other interested persons and organisations were invited to submit in writing any views on changes to the scales of costs they wished to have considered by the Joint Costs Advisory Committee.

The Committee then considered the submissions received and the FCAC formula to recommend an increase of 4.0% to the scale of costs for the FY2021-22.

This amendment also implements the 2.5% increase that was recommended by the Committee in September 2021 but not yet implemented. The amounts for each Item in the table that comprises the scale of costs in family law and child support matters therefore reflects the cumulative 2.5% increase and the 4.0% increase recommended by the Committee over the past two financial years.

 

3.      Details of rules

Item 1 states the name of the amendments.

Item 2 indicates the commencement of the amendments, which is 1 January 2023.

Item 3 indicates that the amendments are made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021.

Item 4 states that each instrument that is specified in a Schedule to the amendments is amended or repealed as set out in the applicable items in the Schedule.

Schedule 1 – amendments

Item 1 in Schedule 1 repeals Schedule 1 – Scale of costs in family law and child support matters to the Rules, and substitutes a new Schedule, including an Application provision and a table containing the new scale of costs in family law and child support matters.

Overview

The Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022 were introduced to update the scale of costs in Schedule 1 of the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021. Enacted by the Chief Judge of the Federal Circuit and Family Court of Australia (Division 2) under Section 217 of the Federal Circuit and Family Court of Australia Act 2021, these amendments address the need for regular updates to the cost structure to reflect economic changes and ensure fairness and access to justice in family law matters. The policy objective of these amendments is to maintain the integrity and effectiveness of the family law system by ensuring that the costs associated with legal proceedings remain reasonable and proportionate, thereby supporting the principle of equality before the courts and the right to a fair hearing. The amendments reflect a 4.0% increase recommended by the Joint Costs Advisory Committee for the FY2021-22 and implement a 2.5% increase recommended in September 2021, resulting in a cumulative increase in the cost scale over the past two financial years.

Scope and Application

The Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022 amends the Family Law Rules to update the scale of costs applicable to family law and child support matters in the Federal Circuit and Family Court of Australia (Division 2). The rules apply to all family law and child support matters within the jurisdiction of the Court, encompassing individuals and entities engaged in such proceedings. These amendments are effective from 1 January 2023 and are made under the authority of Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021. The amendments involve the substitution of the existing Schedule 1 of the Rules with a new Schedule that includes an updated scale of costs, reflecting the cumulative increases recommended by the Joint Costs Advisory Committee over the past two financial years. The amendments do not exclude any specific entities or types of conduct from their application, nor do they specify any exemptions or thresholds. However, the rules may be further refined or specified through subordinate instruments, in accordance with the general application of the Legislation Act 2003 (Cth) to rules of court.

Key Provisions

The Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022 (the "Amendments") are primarily concerned with updating the scale of costs in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (the "Rules"). These amendments are intended to reflect changes in economic conditions and ensure that the costs associated with family law and child support matters remain fair and reasonable. The main operative section of these Amendments is Item 1 in Schedule 1, which repeals the existing Schedule 1 to the Rules and substitutes it with a new Schedule that contains updated amounts for each Item in the table comprising the scale of costs in family law and child support matters (Item 1, Schedule 1). These Amendments impose obligations on the parties and entities governed by the Rules to ensure that they adhere to the updated scale of costs as set forth in the new Schedule 1. This includes legal practitioners, litigants in person, and any other parties involved in family law and child support matters who are subject to the Rules. The updated scale of costs is designed to provide a more accurate reflection of the current economic environment and ensure that the costs associated with legal proceedings remain reasonable and fair. The Amendments do not introduce new offences, penalties, or consequences for breach. However, they do ensure that the costs associated with family law and child support matters are updated to reflect changes in the economic environment. This is important to maintain fairness and accessibility within the legal system. The maximum penalties for breaches of the Rules, as amended by these Amendments, are not explicitly stated in the text of the Amendments themselves but would be found in the existing Rules. It is essential for legal practitioners and parties involved in family law and child support matters to be aware of these updated costs to ensure compliance with the Rules and avoid any potential disputes or misunderstandings. In summary, the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Amendment (Costs) Rules 2022 update the scale of costs in Schedule 1 to the Rules, reflecting economic changes and ensuring fairness and accessibility in family law and child support matters. These Amendments impose obligations on legal practitioners and parties involved in such matters to adhere to the updated costs. While the Amendments do not introduce new offences or penalties, they play a crucial role in maintaining the integrity and fairness of the legal system by ensuring that costs remain reasonable and reflective of the current economic environment.

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Area of Law
Family Law
Instrument
Rules
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Definitions & Interpretation
Commencement Provisions
Regulatory Standards
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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.