EXPLANATORY STATEMENT

 

Select Legislative Instrument 2010 No. 242

Issued by the Authority of the Attorney-General

 

Family Law Act 1975

Family Law Amendment Regulations 2010 (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. 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 replace fee exemptions and waivers with low flat fees.

Under the Regulations, a person who was previously exempt from the payment of court fees under certain specified categories in the Principal Regulations, will instead pay a low flat fee (‘reduced fee’) of $60. However, where a standard fee (‘full fee’) is lower than the reduced fee, that full fee will be payable in place of the reduced fee. After paying either a full fee or a reduced fee on the first occasion that a fee is payable, a person does not need to pay any further fees within that proceeding, provided that he or she continues to fall within one of the categories.

A registrar or authorised officer also has discretion to waive payment of the reduced fee by a person who falls within one of the categories, and has paid a fee in a proceeding, is then involved in a separate but related proceeding.

The Regulations also provide that the reduced fee is payable by a person in financial hardship, where the fee that would otherwise be payable is more than the reduced fee. This fee replaces the full fee waiver in the Principal Regulations. Assessment of financial hardship will be a matter for a registrar or authorised officer.

These changes are part of a package of measures the government is implementing in the 2010‑11 Budget for its Strategic Framework for Access to Justice, which is based on principles of accessibility, appropriateness, equity, efficiency and effectiveness.  The access to justice measures in the 2010-11 Budget are focussed on directing people away from high-cost litigation to early intervention services, which help people resolve disputes before they escalate into larger problems.

The Regulations also harmonise fees between the Family Court of Australia and state and territory courts exercising federal family law jurisdiction by matching the fees in state and territory courts with the fees in the Family Court. Separate lower fees will be charged for hearings before magistrates so that these fees correspond with the fees charged in the Federal Magistrates Court.

The Regulations also raise the fee for filing a response in financial or Part VII proceedings. This fee for a response was previously $176 in Part 1 of Schedule 1AA to the Principal Regulations (relating to the Family Court of Australia) and $232 in Part 2 of Schedule 1AA to the Principal Regulations (relating to state family courts that exercise federal family law jurisdiction). This fee has been increased to $243. The fee therefore matches the fee for family law applications in the Federal Magistrates Court. It is appropriate that the fees for applications and responses be the same amount, given that both are effectively applications for final orders in connection with children or property.

 

The Regulations also provide that a hearing fee may be refunded where a fee is paid for a particular hearing day, but the hearing does not proceed on that day. For example, hearing fees will be refunded where they are paid in advance for multiple hearing days, and the hearing is concluded early, so that subsequent hearing days are not required. The Regulations also ensure that no fees are payable where a hearing is conducted only to formalise the making of final orders.

The Regulations also enable officers of the Court to be authorised by a registrar to exercise certain powers or perform certain functions.

The Regulations also enable registrars or authorised officers to defer payment of fees in circumstances of urgency or financial hardship.

Details of the Regulations are set out in the Attachment.

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.

The Regulations commenced on 1 November 2010.

The Family Court of Australia has been consulted in relation to these regulations.  The Law Council of Australia and National Legal Aid have been consulted in relation to the policy behind these regulations.  This level of consultation is appropriate because the amendments arise out of a 2010-2011 Budget decision.

 

 

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

 

ATTACHMENT

 

Details of the Family Law Amendment Regulations 2010 (No. 3)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Family Law Amendment Regulations 2010 (No. 3).

 

Regulation 2 – Commencement

 

This regulation provides for the Regulations to commence on 1 November 2010.

 

Regulation 3 – Amendment of Family Law Regulations 1984

 

This regulation provides for the amendment of the Family Law Regulations 1984 (the Principal Regulations) as set out in Schedule 1.

 

Regulation 4 – Transitional

 

This regulation provides transitional arrangements, for proceedings that have already commenced, about fee exemptions and hearing fees.

 

Subregulation 4(1)

 

This regulation provides that the system of fee exemptions described in paragraphs 11(7)(a) to (d) of the Principal Regulations continues to apply to proceedings commenced before 1 November 2010. As a result, the reduced fees replacing exemptions (in proposed regulation 11A in item [22] below) will only apply to proceedings commenced on or after 1 November 2010.

 

Subregulation 4(2)

 

This subregulation provides that subregulation 11(9) of the Principal Regulations relating to refund of hearing fees, as in force on 31 October 2010, continues to apply to certain hearing fees. Previously, subregulation 11(9) of the Principal Regulations prescribed the criteria for refund of a hearing fee where the hearing does not proceed or is conducted only to make final orders. It required written notice to be provided to a registrar within the specified period for a hearing fee to be refundable. Item [19] of Schedule 1 below changes references to a hearing fee in subregulation 11(9) to references to a new setting-down fee and limits its application to the first day of a hearing.

 

This subregulation provides, under paragraph 4(2)(a), that the previous refund provision in subregulation 11(9) of the Principal Regulations continues to apply to a hearing fee paid before 1 July 2010 (which was a one-off hearing fee rather than a daily fee). The subregulation also provides, under paragraph 4(2)(b), that the refund provision in subregulation 11(9) of the Principal Regulations will continue to apply to a hearing fee, for the first day of hearing, paid before 1 November 2010.

 

Subregulation 4(3)

This subregulation provides that subregulation 11(10), which is inserted into the Principal Regulations by item [21] of Schedule 1 below, will apply to a hearing fee for the second and subsequent days of a hearing, paid before 1 November 2010. This will ensure that the more straightforward criteria for a refund of a hearing fee, that applies under the amendment, will also apply to fees paid before 1 November 2010.

 

Schedule 1 – Amendments

Item [1]                      Subregulation 3 (1), after definition of application

This item inserts a definition of ‘authorised officer,’ for the purpose of a power or function under the Regulations. ‘Authorised officer’ refers to an officer of the Court who is authorised by the registrar to exercise the power or carry out the relevant function.

Item [2]                      Subregulation 3(1), after definition of filed

This item inserts definitions of ‘filing fee’, ‘full fee’ and ‘hearing fee’.

A ‘filing fee’ refers to a fee mentioned in item 1, 2, 5, 8, 14 or 16 of Schedule 1AA (as amended by item [29] below).

A ‘full fee’ refers to a fee that has not been reduced or waived, other than a consent fee (which would be item 14 of Schedule 1AA as amended by item [29]) and a reduced fee (which would be item 15 of Schedule 1AA as amended by item [29]). This term is defined for ease of reference when describing how the reduced fee will operate in comparison with the standard or ‘full’ fee under the amendments proposed in item [22] below.

A ‘hearing fee’ refers to a fee mentioned in item 4, 7, 11 or 13 of Schedule 1AA (as amended by item [29] below). Each of these items refers to a fee for a hearing, other than for the first hearing day.

Item [3]                      Subregulation 3(1), after definition of Principal Registrar

This item inserts a definition of ‘reduced fee’ for the purposes of the amendments in item [22] below. The reduced fee is defined as the fee in item 15 of Schedule 1AA (as amended by item [29] below). The amount of the reduced fee is $60.

Item [4]                      Subregulation 3(1), after definition of Secretary

This item inserts a definition of ‘setting-down fee’, which refers to a fee mentioned in item 3, 6, 10 or 12 of Schedule 1AA (as amended by item [29] below).

Item [5]                      Subregulation 3(1), after definition of transitional family dispute resolution practitioner

This item inserts a definition of ‘working day’ for the purpose of hearings, consistent with the definition in the Federal Court of Australia Regulations 2004 and the Federal Magistrates Regulations 2000. A working day is defined as a day other than a Saturday, Sunday or a public holiday in the place where the hearing is to take place.

Item [6]                      Regulation 3A

This item replaces a reference to repealed paragraph 38A(4)(b) of the Act with a reference to subsection 38A(4). This corrects an incorrect reference to paragraph 38(4)(b), which does not exist.

Item [7]                      Subregulation 11(1)

This item replaces subregulation 11(1) of the Principal Regulations. It provides that Schedule 1AA sets out the fees payable in proceedings under the Act other than in the Federal Magistrates Court. It removes a distinction between fees for proceedings in the Family Court of Australia, which were covered by Part 1 of Schedule 1AA of the Principal Regulations, and fees in State and Territory Courts exercising jurisdiction under the Act, which were covered by Part 2 of Schedule 1AA of the Principal Regulations. As set out in the amendments to Schedule 1AA made by item [29] below, the same fees will be payable in the Family Court of Australia and in State and Territory Courts exercising federal jurisdiction under the Act.

Item [8]                      After subregulation 11(1)

This item inserts the subheading ‘Liability to pay’ above subregulation 11(2) of the Principal Regulations. This amendment makes regulation 11 of the Principal Regulations clearer but does not affect the operation of the regulation.

Item [9]                      Paragraph 11(2)(a)

This item inserts a reference to a person lodging an appeal into paragraph 11(2)(a) of the Principal Regulations. This amendment simplifies the Regulations by consolidating the provisions on fees for appeals under the Act, previously dealt with under regulation 16 of the Principal Regulations, into regulation 11, which provides the general rules applying to fees.

Item [10]                  After subregulation 11 (2)

This item inserts the subheading ‘When must fees be paid?’ above subregulation 11(3) of the Principal Regulations. This amendment makes regulation 11 of the Principal Regulations clearer but does not affect the operation of the regulation.

Item [11]                  Subregulation 11 (3)

This item inserts a reference to an appeal into subregulation 11(3) of the Principal Regulations. This amendment simplifies the Regulations by consolidating the provisions on fees for appeals under the Act, previously dealt with under regulation 16 of the Principal Regulations, into regulation 11, which provides the general rules applying to fees..

Item [12]                  After subregulation 11 (3)

This item inserts a new subregulation 11(3A) which provides the time for payment of a setting-down fee. The time for payment of a setting-down fee will be the same as the time for payment of a hearing fee. The time for payment is defined separately because items [19] and [21] create different requirements for refund of hearing fees and setting-down fees.

Item [13]                  Paragraph 11 (4) (a)

This item replaces a reference to ‘registrar’ with a reference to ‘a registrar’ in paragraph 11(4)(a). This makes the terminology consistent with its current usage in other subregulations of regulation 11 of the Principal Regulations.

Item [14]                  After subregulation 11 (4)

This item inserts the subheading ‘What happens if fees are unpaid?’ above subregulation 11(5) of the Principal Regulations. This amendment makes regulation 11 of the Principal Regulations clearer but does not affect the operation of the regulation.

Item [15]                  Subregulation 11 (5)

This item inserts references to appeals into paragraph 11(5) of the Principal Regulations. This amendment simplifies the Regulations by consolidating the provisions on fees for appeals under the Act, previously dealt with under regulation 16 of the Principal Regulations, into regulation 11, which provides the general rules applying to fees.

Item [16]                  Subregulation 11 (7) and (7A)

This item removes subregulations 11(7) and (7A) of the Principal Regulations, and inserts a new subregulation 11(6A) and replacement subregulation 11(7).

Subregulation 11(6A)

New subregulation 11(6A) provides that fees that remain unpaid after they become payable will be recoverable as a debt due to the Commonwealth. This is consistent with subregulation 11(3) of the Federal Magistrates Regulations 2000, and subregulation 14(4) of the Federal Court of Australia Regulations 2004. It provides certainty about the status of an unpaid fee.

Subregulation 11(7) When fees are not payable

New subregulation 11(7) provides that a fee is not payable by a person liable to pay the fee if it has already been paid by another person. This replicates paragraph 11(7)(a) of the Principal Regulations, which has now been repealed.

The balance of the previous subregulations 11(7) and 11(7A), which provided for fee exemptions and waivers, are replaced by proposed regulations 11A and 11B which are inserted by item [22] below. However, paragraph 11(7)(b) of the Principal Regulations was removed as it is no longer required.

Item [17] After subregulation 11(7)

This item inserts the subheading ‘Refund of fees’ above subregulation 11(8) of the Principal Regulations. This amendment makes regulation 11 of the Principal Regulations clearer but does not affect the operation of the regulation.

Item [18] After subregulation 11(8)

This item inserts new subregulations 11(8A) and 11(8B) into the Principal Regulations. Subregulation 11(8A) provides a general rule for refunding fees where an individual has paid more than is required under the Principal Regulations. This amendment ensures that a person who has paid a full fee, but is only required to pay a reduced fee, is entitled to a refund of the amount that was overpaid. Subregulation 11(8B) defines the refund amount as the difference between the fee paid by a person and the amount the person is required to pay for the fee.

Item [19] Subregulation 11(9)

This item amends subregulation 11(9) of the Principal Regulations so that the rules that previously applied to refund of hearing fees instead apply to refund of the setting-down fees, which are implemented in items 3, 6, 10 and 12 of proposed Schedule 1AA by item [29] below.

Paragraphs 11(9)(a) and (b) provide that a person who has paid a setting-down fee is entitled to a refund of the fee where the hearing does not proceed or is conducted only to formalise the making of final orders, provided that a person gives notice to a registrar within certain timeframes. This notice must be given two working days before the hearing, if the hearing date is fixed less than 10 working days before the hearing (subparagraph 11(9)(a)(i) of the Principal Regulations) or in any other case, notice must be given at least 10 working days before the hearing (subparagraph 11(9)(a)(ii), amended by item [20] below). These notice requirements help to ensure that litigants give adequate notice to the court when they are aware that a hearing will not proceed.

This amendment provides that subregulation 11(9) will no longer apply to hearing fees. Separate criteria for hearing fee refunds are established in subregulation 11(10), inserted by item [21] below.

Item [20] Subparagraph 11(9)(1)(ii)

This item amends subparagraph 11(9)(a)(ii) to provide that a person is entitled to a refund of a setting-down fee if notice that the hearing will not proceed is given to a registrar at least 10 working days before the hearing date, rather than 20 working days before the hearing date. This subregulation did not previously provide for a period within which notice must be given to a registrar for the purpose of providing a refund where a hearing date is fixed between 10 and 20 days before a hearing. This amendment corrects this oversight.

Item [21] After subregulation 11(9)

This item inserts a new subregulation 11(10) to provide that a hearing fee may be refunded where a fee is paid for a particular hearing day but the hearing does not proceed on that day. For example, hearing fees will be refunded where they are paid in advance for multiple hearing days and the hearing is concluded early so that subsequent hearing days are not required. The amendments also ensure that no fees are payable where a hearing is conducted only to formalise the making of final orders. This amendment is necessary as a result of the introduction of fees for multiple hearing days in the Family Law Amendment Regulations 2010 (No. 2), which has created a need for a more comprehensive system of dealing with fee refunds.

This item also relocates the definition of ‘appeal’ from the previous subregulation 16(5) of the Principal Regulations to a new subregulation 11(11). This amendment provides that, in regulation 11, an appeal also includes a cross-appeal. This simplifies the Regulations by consolidating the provisions on fees for appeals under the Act, previously dealt with under regulation 16 of the Principal Regulations, into regulation 11, which provides the general rules applying to fees.

Item [22] After regulation 11

This item inserts new regulations 11A, 11B and 11C into the Principal Regulations. Regulation 11A provides for the payment of a reduced fee by persons who were exempt from payment under paragraphs 11(7)(c) and (d) of the Principal Regulations before this amendment took effect. Regulation 11B replaces fee waivers in circumstances of financial hardship, previously provided for under paragraph 11(7)(e) of the Principal Regulations, with reduced fees. Regulation 11C provides rules in the event that a person’s eligibility to pay the reduced fee changes over the course of a proceeding. The amount of the reduced fee is $60 as set out in item 15 of proposed Schedule 1AA, which is inserted by item [29] below.

Regulation 11A – Reduction of fees - general

Regulation 11A applies to persons who were exempt from paying a fee under paragraphs 11(7)(c) and (d) of the Principal Regulations before this amendment took effect.

Subregulation 11A(1) provides that regulation 11A applies to persons in one of the categories set out in paragraphs 11A(1)(a) and (b). It replicates and replaces the categories previously set out in paragraphs 11(7)(c) and (d) of the Principal Regulations. These categories are:

-         recipients of legal aid (paragraph 11A(1)(a)), and

-         persons holding certain concession cards or in receipt of certain benefits, persons serving a term of imprisonment or otherwise lawfully detained, and persons aged less than 18 years (paragraph 11A(1)(b)).

Subregulation 11A(2) relocates the previous subregulation 11(7A) of the Principal Regulations, which defined the ‘holder of a card’. It provides that a holder of a card under paragraph 11A(1)(b) does not include a dependant of the holder of the card.

Subregulation 11A(3) provides the general rule that, on the first occasion a fee is payable by a person described in subregulation 11A(1), the reduced fee of $60 will be payable instead of the full fee. As item [2] above provides, the definition of a ‘full fee’ does not include the fee for consent order applications. This definition, combined with the exceptions to the operation of subregulations 11A(5) and 11A(6), means that a fee for a consent order application cannot be reduced under regulation 11A. This exception is necessary because the reduction of this fee would impose a significant additional burden on the courts’ administrative systems.

Subregulation 11A(4) qualifies the general rule under subregulation 11A(3). It provides that where the full fee is less than the $60 reduced fee, the full fee is payable on the first occasion a fee would be payable in a proceeding. This ensures that a person described in subregulation 11A(1) will not pay a higher fee than a person required to pay the full fee.

 

Subregulation 11A(5) provides that once a person described in subregulation 11A(1) has paid a fee in a proceeding under subregulation 11A(3) or 11A(4) (or the fee has been waived under subregulation 11A(6), which is described below), that person is not required to pay any further fees in connection with the proceeding. This means that a person described in subregulation 11A(1) only needs to pay a fee once in a proceeding. However, this subregulation excludes a waiver of consent order application fees, listed in item 14 of Schedule 1AA.

Subregulations 11A(6) and (7) provides a registrar or an authorised officer with discretion to waive payment of a fee in a proceeding by a person described in subregulation 11A(1) in circumstances where the person has already paid a fee in a related proceeding. The waiver is not be expected to be applied to all related proceedings. Under subregulation 11A(6), the registrar or authorised officer will need to be satisfied that the proceedings are closely connected and that the fee waiver is appropriate. Subregulation 11A(6) further provides that consent fees and fees for appeals cannot be waived under this discretion. Subregulation 11A(7) sets out factors that the registrar or authorised officer must take into account in deciding whether to waive payment of a fee in a related proceeding.

Subregulation 11A(8) provides that, for the purpose of regulation 11A, an appeal will be treated as a new proceeding. This means that a fee is payable under subregulation 11A(3) on the first occasion a fee is payable in an appeal by a person described in subregulation 11A(1), even if the person has paid a fee in the matter at first instance.

Regulation 11B – Reduction of fees - hardship

Regulation 11B applies to persons who previously qualified for a waiver of fees under paragraph 11(7)(e) of the Principal Regulations before this amendment took effect.

Subregulation 11B(1) provides that a registrar or an authorised officer can impose the reduced fee instead of a full fee where the registrar or authorised officer considers that payment of the fee would cause financial hardship. The criteria replicate and replace the criteria for granting waivers under paragraph 11(7)(e) of the Principal Regulations. Subregulation 11B(1) provides that the fee for consent order applications, listed in proposed item 14 of Schedule 1AA, cannot be reduced under this regulation. This exception is necessary because reduction of the consent fee would impose a significant additional burden on the courts’ administrative systems.

Subregulation 11B(2) provides that a person covered by subregulation 11B(1) will only be required to pay one reduced fee at the time that a matter is set down for hearing. The person will not be required to pay any hearing fees, regardless of the number of hearing days. This exception ensures that litigants in circumstances of financial hardship will not be burdened with a large number of fees to cover multiple hearing days.

 

 

 

 

 

Regulation 11C - Change in circumstances

Regulation 11C provides for circumstances where a person’s eligibility under subregulation 11A(1) to pay a reduced fee changes after commencement of a proceeding. This ensures that the requirement for a person to pay a fee will be affected by the person’s circumstances when the fee is payable, rather than their circumstances at the commencement of the proceeding.

Regulation 11C(1) applies to a person who has paid a full fee, or a reduced fee under regulation 11B, in a proceeding and subsequently becomes eligible to pay a reduced fee under regulation 11A. It ensures that subregulation 11A(5) applies to the person as if the person had paid a fee under subregulations 11A(3) or 11A(4). This means that no further fees would be payable by the person in the proceeding.

Regulation 11C(2) applies to a person whose circumstances change so that the person no longer comes within a category described in subregulation 11A(1). It provides that the person would be liable to pay all fees that become payable after the change in circumstances.

It is not necessary to include provisions relating to changes in a person’s financial circumstances for the purpose of regulation 11B, as an assessment of eligibility will be made on each occasion that a fee is payable. Therefore, in each assessment made under regulation 11B, a registrar or authorised officer will need to take changing circumstances into account.

Item [23] Regulation 16

This item replaces regulation 16 of the Principal Regulations. This amendment operates in conjunction with the amendments described in items [9], [11], [15] and [21] above to simplify the provisions by consolidating the provisions on fees for appeals under the Act, previously dealt with under regulation 16 of the Principal Regulations, into regulation 11, which provides the general rules applying to fees.

This item also inserts a new regulation 16, which enables a registrar or an authorised officer to defer all or part of a fee in cases of urgency or where payment of a fee would be oppressive or unreasonable, having regard to a person’s financial circumstances. This regulation provides that a fee for which payment is deferred must be paid within 30 days after the deferral or within another period determined by the registrar or authorised officer. The purpose of this amendment is to ensure that the introduction of the new reduced fees will not pose a barrier to impecunious litigants needing urgent access to a court.

Item [24] Subregulation 16A(1)

This item ensures that a decision by a registrar or authorised officer about whether to waive a subsequent related fee under subregulation 11A(6) (in item [22] above), to impose a reduced fee under subregulation 11B(1) (in item [22] above) or defer a fee under subregulation 16(1) (in item [23] above), can be reviewed by the Administrative Appeals Tribunal.

This item also removes references to fee waivers under paragraphs 11(7)(e) and 16(3)(c) of the Principal Regulations. Those paragraphs are replaced by regulation 11B in item [21] above, which introduces a reduced fee arrangement to replace fee waivers.

 

Item [25] Subregulation 16A(2)

This item amends subregulation 16A(2) to refer to decisions that would be reviewable by the Administrative Appeals Tribunal in accordance with subregulation 16A(1), inserted by item [24] above.

This subregulation provides that where a registrar or authorised officer makes a decision under subregulation 11A(6) (in item [22] above), subregulation 11B(1) (in item [22] above) or subregulation 16(1) (in item [23] above), the registrar or authorised officer must comply with the notice requirements in paragraphs 16A(2)(a) and (b) of the Principal Regulations.

This item also removes references to fee waivers under paragraphs 11(7)(e) and 16(3)(c) of the Principal Regulations. Those paragraphs are replaced by regulation 11B in item [22] above, which introduces a reduced fee arrangement to replace fee waivers.

Item [26] Regulation 21AA

This item changes the date for calculating biennial increases to 1 July 2010, because all fee amounts in the regulations were updated to include previous biennial increases by the Family Law Amendment Regulations 2010 (No. 2), which came into effect on 1 July 2010. It also ensures that the reduced fee in item 15 of Schedule 1AA, inserted by item [29] below, is not subject to the biennial increase in fees.

Item [27] Subregulation 21AB(1), definition of ‘fee’

This item updates the definition of ‘fee’ that applies within regulation 21AB of the Principal Regulations so that it does not include the reduced fee in item 15 of Schedule 1AA, inserted by item [29] below. The effect of this amendment is that the reduced fee is not subject to the biennial increase in fees.

Item [28] Subregulation 21AB(1), definition of ‘relevant period’

This item amends the baseline date for calculation of biennial fee adjustments from 1 July 1996 to 1 July 2010 in accordance with the amendment made to regulation 21AA by item [26] above.

Item [29] Schedule 1AA

This item introduces revised Schedule 1AA into the Principal Regulations. Schedule 1AA introduces the following amendments:

·        Parts 1, 2 and 3 of Schedule 1AA to the Principal Regulations are harmonised so that Schedule 1AA is no longer divided into separate parts under separate headings. Before this amendment took effect, the fees in Part 1 applied to the Family Court of Australia only and the fees in Part 2 applied to state and territory courts exercising federal family law jurisdiction. The fee in Part 3 applied to all courts exercising federal family law jurisdiction. This item removes the fees in Part 2 of the Principal Regulations so that the fees in Parts 1 and 3 of the Principal Regulations apply to all courts exercising federal family law jurisdiction (except for the Federal Magistrates Court). The items of Schedule 1AA are also renumbered.

·        Separate lower fees have been implemented for setting-down and hearing by magistrates in proposed items 3, 4, 6, 7, 10 and 11 of Schedule 1AA. These fees correspond with the fees for setting-down and hearing family law matters in the Federal Magistrates Court. Hearings before magistrates do not occur in the Family Court of Australia. Therefore, these fees only affect states and territories where family law proceedings are heard by magistrates.

·        The fee for a response was previously $176 in Part 1 of Schedule 1AA to the Principal Regulations and $232 in Part 2 of Schedule 1AA to the Principal Regulations. This fee was increased to $243. The fee now matches the fee for family law applications in the Family Court in the Principal Regulations. The purpose of this amendment is to harmonise application and response fees between courts exercising family law jurisdiction and to ensure that the fee for applications and responses are the same amount. It is appropriate that the fee for application and responses be the same amount, given that both are effectively applications for final orders in connection with children or property.

·        Item 15 of proposed Schedule 1AA to the Principal Regulations specifies the amount of the reduced fee that is payable under regulations 11A and 11B, inserted by item [22] above. This fee is set at $60.

·        A new setting-down fee is introduced within items 3, 6, 10 and 12 of Schedule 1AA to the Principal Regulations. Having a separate system for setting‑down and hearing fees is consistent with the hearing fee structure in the other federal courts. Hearing fees were amended so that they do not apply to the first day of a heaing.

·        The description of item 301 of Schedule 1AA to the Principal Regulations (renumbered item 16 by this item), is amended to refer to ‘Filing an appeal under ss 94 or 94AAA of the Act’ rather than ‘Appeal under ss 94 or 94AAA of the Act’. The addition of the word ‘filing’ clarifies that references to ‘filing’ within Regulation 11 also include filing an appeal under item 16 of Schedule 1AA.