This regulation is the Family Law (Fees) Regulation 2012.
1.02 Authority
This instrument is made under the following:
(a) the Family Law Act 1975;
(b) the Federal Circuit and Family Court of Australia Act 2021.
1.03 Definitions
Note: A number of expressions used in this regulation are defined in the Family Law Act, including the following:
(a) family dispute resolution practitioner;
(b) Federal Circuit and Family Court of Australia;
(c) financial or Part VII proceedings;
(d) party to a de facto relationship;
(e) recovery order.
In this regulation:
authorised officer, in relation to a power or function, means:
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the following:
(i) an officer of that court authorised by the Chief Executive Officer and Principal Registrar to exercise the power or carry out the function;
(ii) an officer of another court performing the function under an arrangement under section 79 of the Federal Circuit and Family Court of Australia Act 2021;
(iii) an employee of an agency or organisation performing the function under an arrangement under section 80 of that Act; or
(aa) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following:
(i) an officer of that court authorised by the Chief Executive Officer and Principal Registrar to exercise the power or carry out the function;
(ii) an officer of another court performing the function under an arrangement under section 246 of the Federal Circuit and Family Court of Australia Act 2021;
(iii) an employee of an agency or organisation performing the function under an arrangement under section 247 of that Act; or
(b) in relation to a Family Court of a State other than the Family Court of Western Australia—an officer of that court who is authorised by the Chief Executive Officer of that court to exercise the power or carry out the function; or
(c) in relation to the Family Court of Western Australia—an officer of that court who is authorised, by the executive manager appointed under paragraph 25(1)(c) of the Family Court Act 1997 (WA), to exercise the power or carry out the function; or
(d) in relation to the Supreme Court of the Northern Territory or a court of summary jurisdiction of a State or Territory—an officer of that court authorised by the relevant Registrar of that court to exercise the power or carry out the function.
conciliation conference means a conference:
(a) that is:
(i) attended by the parties to a proceeding and a relevant Registrar of the relevant court; or
(ii) attended by the parties to a proceeding and a family dispute resolution practitioner, and the parties are not required to pay any fees of the practitioner in relation to the conference; and
(b) in which the parties try to reach agreement on the matters in issue in the proceeding.
conciliation conference fee means the fee mentioned in item 20 of Schedule 1.
eligible financial or parenting proceedings means:
(a) financial or Part VII proceedings; or
(b) any of the proceedings mentioned in paragraphs (a) to (f) of the definition of de facto financial cause in subsection 4(1) of the Family Law Act.
Family Court of a State means a court to which section 41 of the Family Law Act applies.
Family Law Act means the Family Law Act 1975.
Federal Circuit and Family Court Act means the Federal Circuit and Family Court of Australia Act 2021.
filing fee means a fee mentioned in any of items 1 to 10A of Schedule 1.
hearing fee means a fee mentioned in any of items 15 to 18 of Schedule 1.
interim order application includes:
(a) an application for an interlocutory or interim order; and
(b) an application for an order that will apply only for a specified period during a proceeding; and
(c) an application for an interim or partial property order under Part VIII or VIIIAB of the Family Law Act; and
(d) an application for an interim order that is included in an application that also covers other matters;
but does not include an application for a procedural order.
Note: Example for paragraph (b): An application for an interim parenting order that applies during a proceeding until a final parenting order is made.
Note: Example for paragraph (d): An application for both interim orders and final orders.
liable person, in relation to a fee, means the person who is required to pay the fee under section 2.03.
relevant court, in relation to a proceeding, means:
(a) if the proceeding is in the Federal Circuit and Family Court of Australia (Division 1)—that Division; or
(b) if the proceeding is in the Federal Circuit and Family Court of Australia (Division 2)—that Division; or
(ba) if the proceeding is in a Family Court of a State—that court; or
(c) if the proceeding is in the Supreme Court of the Northern Territory—that court; or
(d) if the proceeding is in a court of summary jurisdiction of a State or Territory—that court.
relevant Registrar of a court means:
(a) in relation to the Federal Circuit and Family Court of Australia (Division 1)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court Act);
(ii) a Senior Registrar or Registrar of that court; or
(b) in relation to the Federal Circuit and Family Court of Australia (Division 2)—the following:
(i) the Chief Executive Officer and Principal Registrar (within the meaning of the Federal Circuit and Family Court Act);
(ii) a Senior Registrar or Registrar of that court; or
(c) in relation to any other court—the principal officer of the court or any other appropriate officer or staff member of the court.
setting down fee means a fee mentioned in any of items 11 to 14 of Schedule 1.
1.03A Expressions used in this instrument that are defined in the Family Law Act and the Federal Circuit and Family Court Act
(1) This section applies if an expression is defined in the Family Law Act and the Federal Circuit and Family Court Act.
(2) When used in a provision of this instrument, the expression has the meaning given by whichever of those Acts is appropriate in the context of the application and operation of that provision.
1.04 Application
This regulation applies to a fee for:
(a) a service requested, or the filing of a document lodged, under the Family Law Act on or after 1 January 2013; and
(b) the filing of an application lodged under the Trans‑Tasman Proceedings Act 2010 on or after the commencement of sections 3 to 110 of that Act.
Part 2—Fees
Division 2.1—Fees—general
2.01 Purpose of Part
For the purposes of section 125 of the Family Law Act, and section 285 of the Federal Circuit and Family Court of Australia Act 2021, this Part sets out matters relating to fees.
2.02 Fees
(1) Schedule 1 sets out the fees payable for:
(a) the filing of a document; or
(b) a service in relation to a proceeding provided by:
(i) the relevant court; or
(ii) an officer of the relevant court; or
(iii) another person acting on behalf of the relevant court.
Note 1: Fees are subject to increase under section 2.13.
Note 2: Fees are not payable in some circumstances: see Division 2.4.
(2) If a document filed in a proceeding includes an application for an interim order and also covers another matter, the fee payable is the sum of:
(a) the fee mentioned in item 9 of Schedule 1; and
(b) the fee mentioned in Schedule 1 for the filing of the document.
(3) If, under section 2.03, a particular fee mentioned in Schedule 1 is payable by more than one person, the only fee that is payable in relation to that particular fee is the highest fee that applies to any of those persons.
Division 2.2—Liability to pay fee
2.03 Persons liable to pay fee
(1) A fee mentioned in Schedule 1 is payable in relation to a proceeding (including an appeal) by:
(a) for the fee mentioned in item 5 of Schedule 1 (filing a response to an application) or item 9 of Schedule 1 (filing an interim order application)—the person for whom the document is filed; and
(b) for the fee mentioned in item 19 of Schedule 1 (issuing a subpoena)—the person who requests that the subpoena be issued; and
(c) in any other case—the person who commences the proceeding.
(2) However:
(a) any party to the proceeding may pay the fee; and
(b) the relevant court for the proceeding, or a Judge or relevant Registrar of that court, may order that another party to the proceeding is liable to pay the fee or part of the fee instead of the person mentioned in subsection (1).
Division 2.3—Exemptions from liability to pay fee
2.04 Persons exempt from paying fee—general
(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1, 2 or 10A of Schedule 1) if, at the time the fee is payable, one or more of the following apply:
(a) the person has been granted legal aid under a legal aid scheme or service:
(i) established under a law of the Commonwealth or of a State or Territory; or
(ii) approved by the Attorney‑General;
for the proceeding for which the fee would otherwise be payable;
(b) the person is the holder of any of the following cards issued by the Commonwealth:
(i) a health care card;
(ii) a pensioner concession card;
(iii) a Commonwealth seniors health card;
(iv) any other card that certifies the holder’s entitlement to Commonwealth health concessions;
(c) the person is serving a sentence of imprisonment or is otherwise detained in a public institution;
(d) the person is younger than 18;
(e) the person is receiving youth allowance or Austudy payments under the Social Security Act 1991 or benefits under the ABSTUDY Scheme.
(2) For paragraph (1)(b), the holder of a card does not include a dependant of the person who is issued the card.
2.05 Persons exempt from paying fee—financial hardship
(1) If:
(a) a fee mentioned in Schedule 1 (other than the fee mentioned in item 1, 2 or 10A of Schedule 1) is payable by an individual in relation to a proceeding; and
(b) in the opinion of a relevant Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual;
the relevant Registrar or authorised officer may exempt the individual from paying the fee.
(2) In considering whether payment of a fee would cause financial hardship to an individual, the relevant Registrar or authorised officer must consider the individual’s income, day‑to‑day living expenses, liabilities and assets.
Note: A decision of a relevant Registrar or an authorised officer under this section is reviewable by the AAT: see section 2.14.
2.05A Persons exempt from paying fee—independent children’s lawyer
An independent children’s lawyer appointed to represent a child’s interests in proceedings under the Family Law Act is exempt from paying the following fees in relation to the proceedings:
(a) the fee mentioned in item 9 of Schedule 1;
(b) the fee mentioned in item 19 of Schedule 1.
Note: For the meaning of independent children’s lawyer, see subsection 4(1) of the Family Law Act.
2.06 Reduced fee for filing application for divorce or nullity of marriage order
(1) If:
(a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by a person in relation to a proceeding; and
(b) the person is exempt under section 2.04 from paying any other fees mentioned in Schedule 1;
the person may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.
(2) If:
(a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by an individual in relation to a proceeding; and
(b) in the opinion of a relevant Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual;
the relevant Registrar or authorised officer may determine that the individual may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.
(3) In considering whether payment of a fee would cause financial hardship to an individual, the relevant Registrar or authorised officer must consider the individual’s income, day‑to‑day living expenses, liabilities and assets.
Note: A decision of a relevant Registrar or an authorised officer under subsection (2) is reviewable by the AAT: see section 2.14.
Division 2.4—When fee is not payable
2.07 Fee not payable by liable person if already paid
A fee mentioned in Schedule 1 is not payable by the liable person if another person has paid the fee.
2.08 Proceedings in which fee is not payable
(1) A fee mentioned in Schedule 1 is not payable in relation to the following proceedings:
(a) an application for a divorce order in relation to a marriage that was previously dissolved or annulled under the Family Law Act or the Matrimonial Causes Act 1959;
(b) a proceeding for which an international convention to which Australia is a party provides that no fee is to be payable;
(c) a proceeding under the Family Law (Child Abduction Convention) Regulations 1986;
(ca) a proceeding under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988;
(cb) an appeal under section 47A of the Family Law Act from a decree of a court exercising jurisdiction under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988;
(cc) an appeal under section 26 of the Federal Circuit and Family Court of Australia Act 2021:
(i) from a judgment of a single Judge of the Federal Circuit and Family Court of Australia (Division 1) exercising appellate jurisdiction in relation to a judgment mentioned in subparagraph (v); or
(ii) from a judgment of the Federal Circuit and Family Court of Australia (Division 1) exercising original jurisdiction under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988; or
(iii) from a judgment of the Federal Circuit and Family Court of Australia (Division 2) exercising original jurisdiction under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988; or
(iv) from a judgment of a Family Court of a State, or a Supreme Court of a State or Territory constituted by a single Judge, exercising original or appellate jurisdiction under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988; or
(v) from a judgment of a court of summary jurisdiction of a State or Territory (other than the Magistrates Court of Western Australia) exercising original jurisdiction under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988; or
(vi) from a judgment of the Magistrates Court of Western Australia exercising original jurisdiction under the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988;
(cd) an application for leave to appeal under section 47B of the Family Law Act;
(ce) an application for leave to appeal under section 28 of the Federal Circuit and Family Court of Australia Act 2021 from a judgment of a court exercising jurisdiction under or in relation to the Child Support (Assessment) Act 1989 or Child Support (Registration and Collection) Act 1988;
(d) an application by a person to set aside a subpoena.
(2) A fee mentioned in Schedule 1 is not payable in relation to an objection to a subpoenaed document being inspected or copied.
(3) A fee mentioned in Schedule 1 is not payable in relation to a proceeding under the Family Law Act about any of the following:
(a) rescission of a divorce order;
(b) a parenting plan;
(c) child maintenance;
(d) a recovery order;
(e) a custody order, residence order, or an order that a child lives with a person, made by an overseas court;
(f) a custody order, residence order, or an order that a child lives with a person, made by a court in Australia and enforceable overseas;
(g) a maintenance order made by an overseas court;
(h) a maintenance order made by a court in Australia that is enforceable overseas;
(i) spousal maintenance;
(j) leave, under section 102A of that Act, for a child to be examined;
(k) an application for enforcement of an order;
(l) contravention of an order;
(m) contempt of court;
(n) an application for an injunction under section 114 of that Act;
(o) costs;
(p) a procedural matter.
Division 2.5—Payment of fees
2.09 When fee must be paid
Filing fee
(1) A filing fee for a document must be paid before the document is filed.
Setting down fee
(2) A setting down fee for a hearing in relation to a proceeding must be paid as follows:
(a) if the hearing day is within 28 days after the day when the hearing day is fixed—within the period, or at the time, approved by the relevant Registrar or authorised officer of the relevant court for the payment of that fee;
(b) in any other case—no later than 28 days before the hearing day.
Hearing fee
(3) A hearing fee for a hearing in relation to a proceeding must be paid as follows:
(a) if the hearing day is more than 2 business days after the day when the hearing day is fixed—no later than close of business for the relevant court on the day that is 2 business days before the hearing day;
(b) in any other case—no later than 9.30 am on the hearing day.
Conciliation conference fee
(4) A conciliation conference fee must be paid as follows:
(a) if the conciliation conference is within 28 days after the day when the conference is fixed—before the conference commences;
(b) in any other case—by 28 days before the day the conference will occur.
Fee for other service
(5) A fee for a service:
(a) mentioned in an item in Schedule 1; and
(b) not otherwise mentioned in this section;
must be paid before the service is provided.
2.10 Deferral of payment of fees
(1) Section 2.09 does not apply if a relevant Registrar or an authorised officer of the relevant court for a proceeding defers the payment of a fee mentioned in Schedule 1 in relation to the proceeding.
(2) The relevant Registrar or authorised officer may defer the payment of a fee under subsection (1) if, in the opinion of the relevant Registrar or authorised officer:
(a) for a filing fee for a document (other than the fee mentioned in item 5 of Schedule 1)—the need to file the document is so urgent that it overrides the requirement to pay the filing fee before the document is filed; or
(b) considering the financial circumstances of the person liable to pay the fee, it would be oppressive or otherwise unreasonable to require payment of the fee in accordance with section 2.09.
(3) If the payment of a fee is deferred, the fee must be paid:
(a) within 28 days after the day the payment is deferred; or
(b) within another period approved, in writing, by the relevant Registrar or authorised officer for the payment of that fee.
Note: If a setting down fee in relation to a hearing is deferred and the hearing does not occur, the setting down fee is still payable in accordance with this subsection.
(4) A fee may be deferred more than once.
(5) The relevant Registrar or authorised officer may impose conditions on the deferral of the payment of a fee.
Note: A decision of a relevant Registrar or an authorised officer under this section is reviewable by the AAT: see section 2.14.
2.11 What happens if fee is not paid
(1) This section applies if the payment of a fee is not deferred under section 2.10.
(2) If a person is required to pay a fee mentioned in Schedule 1 in relation to a proceeding before the filing of a document or the provision of a service for which the fee is payable, the document must not be filed or the service must not be provided until the whole fee is paid.
(3) However, the relevant court for the proceeding, or a Judge or relevant Registrar of that court, may allow the document to be filed or the service to be provided despite the fee, or part of the fee, not being paid.
(4) Subsection (5) applies to a conciliation conference fee, a hearing fee and a setting down fee.
(5) If the fee, or part of the fee, is not paid in relation to a proceeding:
(a) the relevant court, or a Judge or relevant Registrar of that court, may order that no proceeding, or no proceeding other than a specified proceeding, is to take place except by leave; and
(b) a person other than the person liable to pay the fee may pay the fee without affecting any power of the relevant court, or of a Judge or relevant Registrar of that court, to make an order for costs for the fee; and
(c) the relevant court, or a Judge or relevant Registrar of that court, may vacate the day scheduled for the hearing or conciliation conference.
Division 2.6—Miscellaneous
2.12 Refund of fee
General
(1) A person is entitled to a refund of an amount in relation to the payment of a fee mentioned in Schedule 1 if the person pays more than the person is required to pay for the fee under this regulation.
(2) The amount to be refunded is the difference between the amount paid by the person and the amount that the person is required to pay for the fee.
(3) A person is entitled to the refund of the amount paid by the person as a fee mentioned in Schedule 1 if:
(a) the fee had already been paid by another person; or
(b) the fee was not payable under this regulation.
Setting down fee
(4) A person is not entitled to the refund of the amount paid by the person as a setting down fee for a hearing in relation to a proceeding if the first hearing day fixed by the setting down, or a hearing day fixed in place of the first hearing day, does not occur.
Hearing fees—hearings not commenced
(5) A person is entitled to the refund of the amount paid by the person as a hearing fee for a hearing that has not commenced in relation to a proceeding if:
(a) the person notifies the relevant Registrar or an authorised officer of the relevant court, in accordance with subsection (6), that the hearing will not occur or will occur only for the purpose of making formal orders; and
(b) the hearing does not occur or occurs only for the purpose of making formal orders.
(6) The person must notify the relevant Registrar or authorised officer in writing:
(a) if the hearing day was fixed less than 10 business days before the hearing day—at least 2 business days before the hearing day; and
(b) in any other case—at least 10 business days before the hearing day.
(7) Despite subsection (5), a relevant Registrar or authorised officer may refund a hearing fee for a hearing that has not commenced if:
(a) the person who paid the hearing fee has not notified the relevant Registrar or authorised officer in accordance with paragraph (5)(a) and subsection (6); and
(b) the relevant Registrar or authorised officer is satisfied that the reason the person has not notified the relevant Registrar or authorised officer is not the fault of the person; and
(c) the hearing does not occur or occurs only for the purpose of making formal orders.
(8) For subsections (5) and (7), formal orders means orders finalising the proceedings that were to be the subject of the hearing.
Hearing fees—hearings commenced
(9) A person is entitled to the refund of the amount paid by the person as a hearing fee for a hearing day for a hearing that has commenced if:
(a) the proceeding is settled or discontinued before the hearing day; or
(b) the hearing day does not proceed for some other reason.
Note: Example: If a person pays hearing fees in advance for 20 hearing days, but the proceeding finishes after 10 hearing days, a person is entitled to a refund of the hearing fees paid for the unused hearing days.
Conciliation conference fee
(10) A person is entitled to the refund of the amount paid by the person as a conciliation conference fee in relation to a proceeding if the proceeding is settled or discontinued before the conference is held.
Note: A decision of a relevant Registrar or authorised officer under subsection (7) is reviewable by the AAT: see section 2.14.
2.13 Annual increase in fees
(1) The amount of each fee mentioned in Schedule 1 is increased on 1 July 2022, and on each 1 July following that day.
Fees other than reduced fees
(2) Subsections (3) and (4) apply to a fee mentioned in Schedule 1 other than a fee that is described as a reduced fee.
(3) If, in a relevant period, the latest CPI number is greater than the earlier CPI number, the fee is increased, on 1 July immediately following the end of the period, in accordance with the formula:
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where:
earlier CPI number is the CPI number for the last March quarter before the start of the relevant period.
fee is the fee in force at the end of the relevant period.
latest CPI number is the CPI number for the last March quarter before the end of the relevant period.
(4) The amount of the fee worked out under subsection (3) is to be rounded to an amount of dollars and cents and then further rounded as follows:
(a) if the amount is $50 or more—the amount is to be rounded to the nearest amount that is a multiple of $5;
(b) if the amount is less than $50—the amount is to be rounded to the nearest whole dollar;
(c) if the amount to be rounded is 50 cents, the amount is to be rounded down.
Reduced fee
(5) If:
(a) a fee (the first fee) is increased and rounded under subsections (3) and (4); and
(b) the item in Schedule 1 that mentions the fee also mentions a reduced fee;
the reduced fee is increased, at the same time as the first fee, in accordance with subsection (6).
(6) The increased reduced fee is one‑third of the amount of the first fee (as increased and rounded under subsections (3) and (4)), rounded down to the nearest multiple of $5.
Other rules
(7) If the Australian Statistician publishes for a particular March quarter a CPI number in substitution for a CPI number previously published by the Australian Statistician for that quarter, the publication of the later CPI number is disregarded for this section.
(8) However, if the Australian Statistician changes the reference base for the Consumer Price Index, then for the application of this section after the change is made, regard must be had only to CPI numbers published in terms of the new reference base.
(9) In this section:
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.
March quarter means a period of 3 months ending at the end of March.
relevant period means a financial year starting on or after 1 July 2021.
2.14 Notice of decision and AAT review
(1) A relevant Registrar or an authorised officer must give a person liable to pay a fee mentioned in Schedule 1 a notice in accordance with this section if the relevant Registrar or authorised officer makes a decision about the payment of the fee under section 2.05 or 2.10 or subsection 2.06(2) or 2.12(7).
(2) The relevant Registrar or authorised officer must give the notice to the liable person within 28 days after making the decision.
(3) The notice must set out:
(a) the decision; and
(b) a statement that the liable person may apply to the Administrative Appeals Tribunal for review of the decision; and
(c) reasons for the decision.
(4) Paragraphs (3)(b) and (c) only apply if the decision is:
(a) to not exempt a person from paying a fee; or
(b) to not defer the payment of a fee; or
(c) to not refund a fee that has been paid; or
(d) to not determine that a person may pay a reduced fee.
(5) The liable person may apply to the Administrative Appeals Tribunal for review of the decision.
(6) Failure to comply with paragraph (3)(b) does not affect the validity of the decision.
2.15 Debt due to Commonwealth or State
(1) Any fee mentioned in Schedule 1 that is not paid in accordance with this regulation is recoverable by the Commonwealth as a debt due to the Commonwealth.
(2) However:
(a) if the fee is payable in relation to a proceeding in a Family Court of a State, the fee is recoverable by the State as a debt due to that State; and
(b) if the fee is payable in relation to a proceeding in a court of summary jurisdiction of a State or Territory, the fee is recoverable by the State or Territory as a debt due to that State or Territory.
Part 3—Application, saving and transitional provisions
3.01 Application provision in relation to the Federal Circuit and Family Court of Australia Legislation (Consequential Amendments and Other Measures) Regulations 2021
(1) The amendments of this regulation made by the Federal Circuit and Family Court of Australia Legislation (Consequential Amendments and Other Measures) Regulations 2021 apply in relation to the liability of a person to pay any of the following fees:
(a) a filing fee for filing a document on or after 1 September 2021;
(b) a setting down fee for a hearing if the hearing day is fixed on or after 1 September 2021;
(c) a hearing fee for a day, or a part of a day, if the day (or part of the day) is fixed on or after 1 September 2021;
(d) a conciliation conference fee for a conference fixed on or after 1 September 2021;
(e) any other fee under this regulation for a service provided on or after 1 September 2021.
(2) To avoid doubt, the repeal of the definition of magistrate applies in relation to a proceeding that began before, or begins on or after, 1 September 2021.
Note: This means that the rate of a fee payable on or after 1 September 2021 in respect of a hearing before a Judge of the Federal Circuit and Family Court of Australia is that stated in the relevant table item in Schedule 1, even if a fee was paid before that day in respect of a service provided by a magistrate.