EXPLANATORY STATEMENT

Select Legislative Instrument 2007 No. 294

 

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

 

FEDERAL MAGISTRATES ACT 1999

FEDERAL MAGISTRATES AMENDMENT REGULATIONS 2007 (No. 1)

Section 120 of the Federal Magistrates Act (the Act) provides that the Governor-General may make regulations prescribing 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 and, in particular, prescribing the fees to be paid in respect of proceedings in the Federal Magistrates Court or the service and execution of the process of the Federal Magistrates Court by officers of the Court.

The purpose of the Regulations is to amend the Federal Magistrates Regulations 2000 (‘the Principal Regulations’) to provide for the invoicing of fees for approved users of Federal Magistrates Court services, and to change the amount of certain fees for family law matters.

Schedule 1 to the Regulations inserts new regulation 10A which allows for the payment of fees on invoice by certain users of court services. This change means that an approved user of court services would not have to pay a fee each time a document is filed by, or a service is rendered to, the user. Instead the Federal Magistrates Court would send the user an invoice setting out all the fees incurred during the relevant period. The approved user would have to pay the fees within 30 days after receiving the invoice. The Registrar will have the power to determine which court users may be approved to pay fees in this way, taking into account several factors including the user’s financial history with the Federal Magistrates Court, whether the user provides a guarantee and whether the user is a regular user of Federal Magistrates Court services.

Schedule 1 also contains consequential amendments which ensure that regulations relating to when fees must be paid and what happens if they are unpaid are consistent with the invoicing regulation. The Regulations also provide that unpaid fees are recoverable as a debt due to the Commonwealth.

Schedule 2 to the Regulations amends the amount of certain fees in family law matters. This forms 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 Family Law Regulations 1984 implement fee amendments for the Family 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 are aligned, consistent with a single entry point to the federal family law courts. Secondly, the hearing fees for both Courts are amended to reflect that the Federal Magistrates Court is intended to hear the shorter, less complex family law matters. The separate fees for corporations in the Federal Magistrates Court for family law matters are also abolished. This change ensures consistency between the federal family law courts, as separate fees are not charged for corporations in the Family Court. Separate fees for corporations will continue to apply in general federal law matters.

The Regulations make the following changes to family law fees in the Federal Magistrates Court:

·        the fee for filing a document by which a proceeding under the Family Law Act 1975 about a financial matter or a matter under Part VII seeking final orders is commenced is fixed at $145 (previously $121)

·        the fee for filing, by a person other than the applicant, a document seeking the making of final orders different from those sought by the applicant in a proceeding under the Family Law Act about a financial matter or a matter under Part VII is fixed at $145 (previously $242 for corporations and $121 for others), and

·        the fee for setting down for hearing for final orders of a proceeding or an issue in question in a proceeding under the Family Law Act is fixed at $365 (previously $728 for corporations and $364 for others).

Schedule 2 of the Regulations also updates the reference date for biennial increases in the fees. The date was previously 1 July 2004 and is updated to 1 July 2006. This change clarifies the date for calculating the biennial increase but does not change the effect of the Principal Regulations.

Consultations regarding this legislative instrument were undertaken with the Federal Magistrates Court, the Family Court and the Federal Court.  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 commences on 15 October 2007 to allow time for the Federal Magistrates Court to prepare to implement the changes and provide appropriate notification of the new fee structure.