96R258 Family law regs

Statutory Rules 1996 No. 1881

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Family Law Regulations2 (Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 28 August 1996.

WILLIAM DEANE

Governor-General

By His Excellency’s Command,

PHILIP RUDDOCK

Minister for Immigration and Multicultural Affairs for the

Attorney-General and Minister for Justice

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1. Commencement

1.1 These Regulations commence on 1 September 1996.

2. Amendment

2.1 The Family Law Regulations are amended as set out in these Regulations.

3. Regulation 11 (Fee in respect of proceedings for divorce or nullity)

3.1 Omit the regulation, substitute:

Fees in respect of proceedings

“11. (1) Subject to subregulation (7), the following fees are payable in respect of proceedings under the Act:

(a) for a decree of dissolution or of nullity of marriage:

(i) a filing fee of $460; and

(ii) if the proceedings are defended—a hearing fee of $400;

(b) for a declaration as to the validity of a marriage or of the dissolution or annulment of a marriage by decree or otherwise:

(i) a filing fee of $460; and

(ii) if the proceedings are defended—a hearing fee of $400;

(i) for any application (other than an application for consent orders or for registration of a parenting plan or a maintenance agreement)—a filing fee of $250; and

(ii) for an application for final orders that is defended—a hearing fee of $400;

(d) for an appeal under section 96 of the Act from a decree of a court of summary jurisdiction—a hearing fee of $400.

[Notes: 1. The term ‘financial or Part VII proceedings’ is defined in s. 4 (1) of the Act.

2. The fees payable under this subregulation are subject to increase under Part IIAA.]

“(2) The person liable to pay a fee is:

(a) the person initiating the proceedings in respect of which the which the fee is payable; or

(b) if the court, a Judge or a registrar so orders:

(i) another party to the proceedings; or

(ii) each of 2 or more of the parties to the proceedings, including the person initiating the proceedings, in the proportions ordered.

“(3) A filing fee is payable at the time when the application is filed.

“(4) A hearing fee is payable at the time when a date is fixed for the hearing of the proceedings.

“(5) Subject to subregulation (7), a registrar must not accept an application for filing in the office of a court unless any filing fee payable under subregulation (1) has been paid.

“(6) Subject to subregulation (7), if, in relation to an application, a hearing fee payable under subregulation (1) is unpaid:

(a) the court, a Judge, or a registrar may order that no proceedings, or no proceedings other than specified proceedings, are to take place, except by leave, in the matter to which the application relates; and

(b) a person other than the person liable to pay the fee may pay the fee without affecting any power of the court, a Judge, or a registrar to make an order for costs for the fee; and

“(7) A fee referred to in subregulation (1) is not payable if:

(a) the fee has been paid in respect of the proceedings by a person other than the person liable to pay the fee; or

(b) in relation to a fee payable under paragraph (1) (a) or (b)—the marriage to which the relevant application relates has been dissolved or annulled under the Act or the repealed Act; or

(c) the person liable to pay the fee has been granted legal aid, under a legal aid scheme or service established under Commonwealth, State or Territory law or approved by the Attorney-General, for the matter to which the proceedings relate; or

(d) the applicant is, at the time the application is filed or a date is fixed for the hearing of the proceedings (as the case requires):

(i) the holder of one of the following cards issued by the Department of Social Security:

(A) a health care card;

(B) a health benefit card;

(D) a Commonwealth seniors health card; or

(ii) the holder of any other card issued by the Department of Social Security or the Department of Veterans’ Affairs that certifies entitlement to Commonwealth health concessions; or

(iii) an inmate of a prison or otherwise lawfully detained in a public institution; or

(iv) a child under the age of 18 years; or

(v) in receipt of AUSTUDY within the meaning of the AUSTUDY Regulations; or

(vi) in receipt of benefits under the Commonwealth student assistance scheme known as the ABSTUDY Scheme; or

(e) a registrar, having regard to the income, day to day living expenses, liabilities and assets of the person liable to pay the fee, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the person.

[Note: Regulation 16A makes provision in relation to the review of a decision of a registrar under paragraph (7) (e).]

“(8) If:

(a) a fee referred to in subregulation (1) has been paid; and

(b) the fee is not payable under subregulation (7);

a registrar must refund to the applicant, or other person who paid the fee, an amount equal to the amount of the fee.”.

4. Regulation 15 (Institution etc. of proceedings by persons holding certain offices)

4.1 Subregulation 15 (3):

Omit “a child”, substitute “child”.

5. Regulation 16 (Fee in respect of appeals)

5.1 Subregulation 16 (3):

Omit the subregulation, substitute:

“(3) The court fee referred to in subregulation (1) is not payable if:

(a) the appellant has been granted legal aid, under a legal aid scheme or service established under Commonwealth, State or Territory law or approved by the Attorney-General, for the matter to which the proceedings relate; or

(b) the appellant is, at the time of filing a notice of appeal:

(i) the holder of one of the following cards issued by the Department of Social Security:

(A) a health care card;

(B) a health benefit card;

(D) a Commonwealth seniors health card; or

(ii) the holder of any other card issued by the Department of Social Security or the Department of Veterans’ Affairs that certifies entitlement to Commonwealth health concessions; or

(iii) an inmate of a prison or otherwise lawfully detained in a public institution; or

(iv) a child under the age of 18 years; or

(v) in receipt of AUSTUDY within the meaning of the AUSTUDY Regulations; or

(vi) in receipt of benefits under the Commonwealth student assistance scheme known as the ABSTUDY Scheme; or

(c) a registrar, having regard to the income, day to day living expenses, liabilities and assets of the appellant, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the appellant.

[Note: Regulation 16A makes provision in relation to the review of a decision of a registrar under paragraph (3) (c).]”.

5.2 Subregulation 16 (4):

Omit “for the reason specified in paragraph 3 (a), the Principal Registrar shall”, substitute “under subregulation (3), a registrar must”.

5.3 Add at the end:

“(5) In this regulation, ‘appeal’ includes ‘cross appeal’, and ‘appellant’ includes ‘cross appellant’.

[Note: The following note is taken to be inserted after subregulation 16 (1):

‘[Note: This fee is subject to increase under Part IIAA.]]’.”.

6. New regulation 16A

6.1 After regulation 16, insert:

Review by Administrative Appeals Tribunal

“16A. (1) Application under the Administrative Appeals Tribunal Act 1975 may be made to the Administrative Appeals Tribunal for review of a decision of a registrar under paragraph 11 (7) (e) or 16 (3) (c).

“(2) If a registrar makes a decision under paragraph 11 (7) (e) or 16 (3) (c) refusing to waive a fee, a registrar must, within 28 days, give the applicant written notice of:

(a) the decision; and

(b) the applicant’s right, under subsection 28 (1) of the Administrative Appeals Tribunal Act 1975, to request a statement setting out the findings on material questions of fact, referring to the evidence or other material on which those findings were based, and the reasons for the decision.

“(3) Failure to give notice of the matter set out in paragraph (2) (b) does not affect the validity of the decision.

“(4) In this regulation, ‘registrar’ does not include the registrar of a court of summary jurisdiction.”.

7. New Part IIAA

7.1 After regulation 21, insert the following Part:

“PART IIAA—AUTOMATIC VARIATION OF FEES

Biennial increases

“21AA. Despite any other provision of these Regulations, a fee prescribed by regulation 11 or 16 is increased, in accordance with this Part, on each biennial anniversary of 1 July 1996.

Calculation of increase

“21AB. (1) In this regulation:

‘fee’ means a fee prescribed by regulation 11 or 16;

‘CPI number’ means the All Groups Consumer Price Index number (being the weighted average of the 8 Australian capital cities) published by the Australian Statistician;

‘relevant period’ means any of the following periods:

(a) the 2 year period commencing on 1 July 1996;

(b) after that period—each 2 year period commencing on a biennial anniversary of 1 July 1996.

“(2) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, a fee is taken to increase, on 1 July immediately following the end of the period, in accordance with the formula:

fee x latest CPI number

earlier CPI number

where:

‘earlier CPI number’ is the CPI number for the last March quarter before the beginning of the relevant period; and

‘fee’ is the fee in force during the relevant period; and

‘latest CPI number’ is the CPI number for the last March quarter before the end of the relevant period.

“(3) If, apart from this subregulation, the amount of a fee increased under subregulation (2) would be an amount of dollars and cents, the amount is to be rounded to the nearest whole dollar and, if the amount to be rounded is 50 cents, rounded down.

“(4) Subject to subregulation (5), if at any time, whether before or after the commencement of this regulation, the Australian Statistician publishes for a particular March quarter a CPI number in substitution for an index number previously published by the Australian Statistician for that quarter, the publication of the later index number is to be disregarded for the purposes of this regulation.

“(5) If, at any time, whether before or after the commencement of this regulation, the Australian Statistician changes the reference base for the Consumer Price Index, then, for the purposes of the application of this regulation after the change is made, regard shall be had only to numbers published in terms of the new reference base.”.

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NOTES

1. Notified in the Commonwealth of Australia Gazette on 30 August 1996.

2. Statutory Rules 1984 No. 426 as amended by 1985 No. 183; 1986 Nos. 140 and 393; 1987 Nos. 85 and 175; 1988 Nos. 42, 44, 164 and 165; 1989 Nos. 8, 53, 74, 155, 205, 235 and 326; 1990 Nos. 294 and 373; 1991 Nos. 401 and 447 (disallowed by the Senate on 3 March 1992); 1992 Nos. 33, 160, 287, 376 and 404; 1994 Nos. 86 and 343; 1995 Nos. 297, 400 and 419; 1996 No. 71.