EXPLANATORY STATEMENT

 

Select Legislative Instrument 2007 No. 293

 

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

 

FAMILY LAW ACT 1975

 

FAMILY LAW AMENDMENT REGULATIONS 2007 (No. 3)

 

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.

 

The purpose of the Regulations is to make amendments to the Family Law Regulations 1984 (the Principal Regulations) to:

·        clarify certain obligations relating to family dispute resolution practitioners, previously introduced in the Family Law Amendment Regulations 2007
(No. 1);

·        ensure consistency with changes to the Act introduced by the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007;

·        amend the amount of certain fees for family law matters in the Family Court of Australia; and

·        correct two typographical errors.

 

The Regulations make minor amendments to the Principal Regulations to clarify the obligations, introduced by the Family Law Amendment Regulations 2007 (No. 1) in April 2007, that family dispute resolution practitioners must meet before issuing a certificate under paragraph 60I(8)(a) of the Act. A certificate under paragraph 60I(8)(a) may be issued to a person who is required, under section 60I of the Act, to attempt family dispute resolution prior to applying to the court for an order under Part VII of the Act, but who has not attended family dispute resolution due to the refusal or failure of the other party or parties involved to attend.

The Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (the Consolidation Act), inserted provisions relating to international maintenance into the Act.  The Regulations omit provisions from the Principal Regulations that have now been included into the Act as a result of the Consolidation Act and are now redundant.

The Regulations amend the amount of certain fees for family law matters in the Family Court as part of the implementation of a simplified fee structure for the federal family law courts (the Federal Magistrates Court and the Family Court of Australia). Separate amendments to the Federal Magistrates Regulations 2000 implement fee amendments for the Federal Magistrates Court.

The simplified fee structure is part of a new single entry point for the federal family law courts, which has been developed to reduce confusion and complexity for family law clients.

There are two main elements to the simplified fee structure for the federal family law courts. First, filing fees for family law applications and responses in the Federal Magistrates Court and the Family Court of Australia are aligned, consistent with a single entry point to the family law courts. Secondly, the hearing fees for both Courts are amended to reflect that the Family Court of Australia is expected to hear the longer, more complex family law matters. Fees for proceedings under the Act in courts other than the Family Court of Australia and the Federal Magistrates Court are not amended.

The Regulations update the amount of certain other Family Court of Australia fees in the Principal Regulations to reflect increases that have taken place in accordance with regulation 21AA.

The amendments, other than those relating to fees, are implemented by Schedule 1 to the Regulations. The provisions relating to fees are implemented by Schedule 2.

Consultations regarding the amendments implementing a simplified fee structure were undertaken with the Federal Magistrates Court and the Family Court of Australia. The amendment clarifying the obligations that family dispute resolution practitioners must meet before issuing a certificate under paragraph 60I(8)(a) of the Act is in response to comments received from family dispute resolution practitioners. This level of consultation is appropriate and sufficient, as these amendments are of a minor or machinery nature only and do not substantially alter existing arrangements.

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

Regulations 1 through 3 and Schedule 1 commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments. Schedule 2, which relates to the new fee structure, commences on 15 October 2007, to allow time for the Family Court of Australia to prepare to implement the changes and provide appropriate notification of the new fee structure.

 

Details of the Regulations are as follows:

Regulation 1 - Name of Regulations

Regulation 1 provides that the name of the Regulations is the Family Law Amendment Regulations 2007 (No. 3).

Regulation 2 – Commencement

Regulation 2 provides for the commencement of Regulations 1 to 3 and Schedule 1 on the day after they are registered on the Federal Register of Legislative Instruments, and Schedule 2 on 15 October 2007.

Regulation 3 - Amendment of the Family Law Regulations 1984

Regulation 3 provides that Schedules 1 and 2 amend the Principal Regulations.

 

Schedule 1 – Amendments commencing on day after registration

Item [1]: Part IIIA

The Consolidation Act inserted new section 111AA into the Act. Section 111AA provides that an Australian court must not make or vary a maintenance order under Part VII of the Act (relating to child maintenance), Part VIII of the Act (relating to spousal maintenance) or under the Principal Regulations in any case in which the person seeking payment of the maintenance is habitually resident in New Zealand. This gives effect to article 4 of the Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance signed at Canberra on 12 April 2000. Section 111A replicates Part IIIA of the Principal Regulations. As a consequence, this item omits Part IIIA from the Principal Regulations.

Item [2]: Subregulation 39B(1), note

The Consolidation Act repealed subsection 124A(3) from the Act. This item omits the note to subregulation 39B(1) which referred to section 124A of the Act.

Item [3]: Subregulations 39B(5) to (8)

The Consolidation Act inserted section 69XA into the Act. Section 69XA sets out matters related to parentage testing for the purposes of an international agreement or arrangement. Section 69XA replicates subregulations 39B(5) to (8) of the Principal Regulations. This item omits subregulations 39B(5) to (8) from the Principal Regulations.

Item [4]: After regulation 39B

This item inserts new regulation 39BA to make it clear that a country mentioned in Schedule 4 or 4A is a jurisdiction for the purposes of subsections 69S(1A) and 69XA(4) of the Act, which relate to results of parentage testing and presumptions of parentage.

Item [5]: Regulation 39C, note

The Consolidation Act repealed subsection 124A(3) from the Act. This item amends the note to regulation 39C omitting the reference to subsection 124A(3).

Item [6]: Regulation 39D

The Consolidation Act inserted section 117AC into the Act. Section 117AC states that a court must not make an order for security for costs in a proceeding involving a Convention country that is listed in Schedule 4A to the regulations. Section 117AC has the same effect as current regulation 39D of the Principal Regulations making it redundant. This item replaces current regulation 39D with a new regulation to make it clear that a country listed in Schedule 4A is a Convention country for the purposes of section 117AC of the Act.

Item [7]: Regulation 60L

Regulation 60L requires the Secretary of the Attorney-General’s Department (the Secretary) to provide written notice if he or she decides to cancel a family dispute resolution practitioner’s registration in the Family Dispute Resolution Register (the Register) under regulation 60H of the Principal Regulations. Current regulation 60L contains one erroneous reference to ‘suspension’, rather than ‘cancellation’. This item corrects that error.

Item [8]: Subregulations 61A(3) and 61B(3)

Regulations 61A and 61B require the Secretary to maintain, respectively, a list of organisations designated by the Minister for paragraph (b) of the definition of family dispute resolution practitioner in section 10G of the Act and a list of approved family dispute resolution organisations. These lists form part of the Register.

To correct grammatical mistakes in subregulations 61A(3) and 61B(3), this item inserts ‘an’ before ‘organisation’ in both provisions.

Item [9]: Subregulation 62A(4)

Section 60I of the Act provides for compulsory attendance at family dispute resolution (subject to certain exceptions, including situations involving violence or child abuse) before the court may hear an application for an order under Part VII of the Act (which deals with matters concerning children).

Subsection 60I(7) provides that the court must not hear an application for an order under Part VII made by a person to whom the requirement to attend family dispute resolution in section 60I applies unless the application is accompanied by a certificate from a family dispute resolution practitioner. Subsection 60I(8) provides that this certificate may be one of four types.

As the note following subsection 60I(8) makes clear, the court may take the type of certificate filed with an application into account in determining whether to make an order referring parties to family dispute resolution under section 13C of the Act or award costs against a party under section 117 of the Act.

One type of certificate that may result in cost consequences for a person is the certificate, set out in paragraph 60I(8)(a), which provides that a person did not attend family dispute resolution due to the refusal or failure of the other party or parties involved in the dispute to attend.

To ensure that people are properly informed of the potential consequences of not attending family dispute resolution, subregulation 62A(4) provides that certain steps must be taken before a family dispute resolution practitioner may provide a certificate pursuant to paragraph 60I(8)(a) of the Act. These steps provide that the party or parties who have failed to attend family dispute resolution must be contacted at least twice, with at least one of these contacts being made in writing, and have been provided with a reasonable choice of days and times for attendance at family dispute resolution. In these contacts the party or parties must be informed that if they do not attend family dispute resolution, a certificate may be provided by the family dispute resolution practitioner under paragraph 60I(8)(a) of the Act and that this certificate may be taken into account by a court when determining whether to make an order referring parties to family dispute resolution under section 13C or awarding costs against a party under section 117 of the Act.

Prior to these amendments, subregulation 62A(4) required the family dispute resolution practitioner to personally make the two required contacts with the party or parties who had failed or refused to attend family dispute resolution. Recognising that, in practice, these contacts will often be made by support staff within the organisation for which a family dispute resolution practitioner provides services, this item amends subregulation 62A(4) to provide that the required contacts may be made by the practitioner or by a person acting for the practitioner. This allows organisations more flexibility in their administrative arrangements.

The amendment made by this item also clarifies that a person does not need to fail to attend family dispute resolution twice, rather subregulation 62A(4) requires a person to be contacted twice before a family dispute resolution practitioner may issue a certificate under paragraph 60I(8)(a) of the Act.

Item [10]: Schedule 4, heading

This item inserts into the heading of Schedule 4 a list of the regulations which refer to this Schedule. This is a minor amendment which assists with the interpretation of the Principal Regulations.

Item [11]: After Schedule 4

This item inserts a new Schedule 4A into the Principal Regulations. Schedule 4A includes a list of countries which are a party to the Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions relating to Maintenance Obligations. Schedule 4A replaces subregulation 39D(2) of the Principal Regulations with two changes.  Belgium has not been included in Schedule 4A because the Convention is not in force for Belgium.  Lithuania is now a party to the Convention and has been included in Schedule 4A.

Schedule 2 – Amendments commencing on 15 October 2007

Item [1]: Subregulation 11(1)

Item 1 amends subregulation 11(1) to provide that the fees set out in that subregulation do not apply in the Family Court of Australia. Fees for the Family Court of Australia are provided instead in new subregulation 11(1AA), which is inserted by item 2.

Item [2]: After subregulation 11(1)

Item 2 inserts new subregulation 11(1AA), which provides certain filing and hearing fees payable for proceedings in the Family Court of Australia. These fees were previously provided in subregulation 11(1).

The amount of certain fees applying in the Family Court of Australia are amended as part of the implementation of the simplified fee structure. The amount of other fees applying in the Family Court of Australia are updated to reflect the amount of the fee including biennial increases under regulation 21AA since 1 July 1996.

The following Family Court of Australia fees are amended:

·        under new subparagraph 11(1AA)(a)(ii), the hearing fee for a defended proceeding for a divorce order or a decree of nullity of a marriage is increased to $500 (taking into account biennial increases since 1996, the previous fee under subparagraph 11(1)(a)(ii) was $383)

·        under new subparagraph 11(1AA)(b)(ii), the hearing fee for a defended proceeding for a declaration as to the validity of a marriage, a divorce or the annulment of a marriage is increased to $500 (taking into account biennial increases since 1996, the previous fee under subparagraph 11(1)(b)(ii) was $383)

·        under new subparagraph 11(1AA)(c)(i) the filing fee for an application for final orders and a response to an application for final orders is reduced to $145 (taking into account biennial increases since 1996, the previous fee under subparagraph 11(1)(c)(i) was $191)

·        under new subparagraph 11(1AA)(c)(ii), the hearing fee for an application for final orders that is defended is increased to $500 (taking into account biennial increases since 1996, the previous fee under subparagraph 11(1)(c)(ii) was $383)

·        under new paragraph 11(1AA)(d) the hearing fee for an appeal under section 96 of the Act from a decree of a court of summary jurisdiction is increased to $500 (taking into account biennial increases since 1996, the previous fee applying under paragraph 11(1)(d) was $383).

The filing fee for a divorce order in relation to a marriage or a decree of nullity of marriage (new subparagraph 11(1AA)(a)(i)) is updated to $639. The filing fee for a declaration as to the validity of a marriage, a divorce or the annulment of a marriage (new subparagraph 11(1AA)(b)(i)) is also be updated to $639. These new fees are identical to the fees that previously applied under subparagraphs 11(1)(a)(i) and 11(1)(b)(i), taking into account biennial increases under regulation 21AA since 1996.

Item [3]: Subregulation 11(5)

Item 3 amends subregulation 11(5) to insert a reference to new subregulation 11(1AA) where a reference to subregulation 11(1) also exists. Subregulation 11(5) sets out the requirement that a filing fee be paid before an application is accepted for filing. This consequential amendment ensures that the requirement in subregulation 11(5) also applies to the filing fees set out in new subregulation 11(1AA).

Item [4]: Subregulation 11(6)

Item 4 amends subregulation 11(6) to insert a reference to new subregulation 11(1AA) where a reference to subregulation 11(1) also exists. Subregulation 11(6) sets out the options available if a hearing fee is unpaid. This consequential amendment ensures that the options in subregulation 11(6) are also available in relation to hearing fees set out in new subregulation 11(1AA).

Item [5]: Subregulation 11(7)

Item 5 amends subregulation 11(7) to insert a reference to new subregulation 11(1AA) where a reference to subregulation 11(1) also exists. Subregulation 11(7) sets out the circumstances in which a fee is not payable. This consequential amendment ensures that a fee set out in new subregulation 11(1AA) is not payable if the circumstances outlined in subregulation 11(7) exist.

Item [6]: Paragraph 11(7)(b)

Item 6 amends paragraph 11(7)(b) to insert a reference to the fees in new paragraphs 11(1AA)(a) and (b), where a reference to paragraphs 11(1)(a) and (b) also exists. Paragraph 11(7)(b) provides an exemption from payment of a fee under paragraph 11(1)(a) and (b) or subregulation 11(1A), where the marriage has already been dissolved or annulled. This consequential amendment ensures that the fee exemption also applies in relation to the fees in new paragraphs 11(1AA)(a) and (b).

Item [7]: Paragraph 11(8)(a)

Item 7 amends paragraph 11(8)(a) to insert a reference to new subregulation 11(1AA) where a reference to subregulation 11(1) also exists. Subregulation 11(8) sets out the circumstances in which a fee must be refunded. This consequential amendment ensures that a fee paid under new subregulation 11(1AA) is refunded where the circumstances set out in subregulation 11(8) exist.