EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 290

Issued by the Authority of the Attorney-General

 

Family Law Act 1975

Family Law Amendment Regulations 2010 (No. 5)

Subsection 125(1) of the Family Law Act 1975 (the Act) provides, in part, that the Governor‑General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act. Paragraph 125(1)(c) provides that the Governor-General may make regulations prescribing court fees to be payable in respect of proceedings under the Act.

The Family Law Regulations 1984 (the Principal Regulations) prescribe certain fees in relation to court proceedings and make provisions about the payment of those fees.

The purpose of the Regulations is to amend the Principal Regulations to ensure that the fees for financial and parenting matters apply to certain matters within the definition of ‘de facto financial causes’ in the Act in the same way that they apply to certain matters that fall within the definition of ‘matrimonial causes’ in the Act. The Regulations will also raise the fee for divorce applications in certain lower level courts so that these will be consistent with divorce fees in the Federal Magistrates Court.

Fees charged for ‘financial or Part VII proceedings’ in items 8, 9, 10 and 11 of Schedule 1AA to the Principal Regulations, rely on the definition of ‘financial and Part VII proceedings’ in section 4 of the Act.  This definition refers to financial proceedings falling within paragraphs (c) to (eb) of the definition of ‘matrimonial cause’ in subsection 4(1) of the Act and to proceedings under Part VII of the Act. The Principal Regulations could therefore be interpreted as not imposing fees for de facto financial proceedings. 

Under Schedule 1 to the Regulations, the descriptions in items 8, 9, 10 and 11 of Schedule 1AA to the Principal Regulations will be amended so that these refer to ‘financial and Part VII proceedings’ and also to proceedings mentioned in paragraphs (a) to (f) of the definition of ‘de facto financial cause’ in subsection 4 (1) of the Act. This will ensure that items 8, 9, 10 and 11 of Schedule 1AA to the Principal Regulations apply to de facto financial causes.

Schedule 2 to the Regulations will increase the fee listed in item 2 of Schedule 1AA to the Principal Regulations, which applies to divorce applications instituted in or transferred to one of the following courts:

·        a court constituted by a stipendiary magistrate who is the Principal Registrar, or a Registrar, of the Family Court of Western Australia

·        the Magistrates Court constituted by section 4 of the Magistrates Court Act 1930 of the Australian Capital Territory, or

·        the Court of Petty Sessions of Norfolk Island.

The fee will be increased from $492 to $550. This increase will ensure that the fee for divorce applications in those courts will be equivalent to the fee for divorce applications in the Federal Magistrates Court.

The Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

Regulations 1 to 3 and Schedule 1 commence the day after the Regulations are registered on the Federal Register of Legislative Instruments. Schedule 2 commences on 1 December 2010. A later commencement date has been imposed for Schedule 2 to give the Family Court of Western Australia sufficient time to implement the new fee.

The Family Court of Australia and the Family Court of Western Australia have been consulted in relation to these regulations. 

 

 

Authority: Subsection 125(1) of the Family Law Act 1975