This Digest is prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments.
This Digest was available from 20 September 1996.
Family Law Amendment Bill 1996
Date Introduced: 11 September 1996
House: House of Representatives
Commencement: Royal Assent
To allow the Governor-General to make regulations imposing fees
for voluntary counselling and mediation services provided by the
Family Court of Australia. This is a Budget measure.
The Family Court of Australia was established under the
Family Law Act 1975. The Act introduced the concept of
'no-fault' divorce, and emphasised resolving disputes by
conciliation and mediation rather than by litigation. According to
the Court's Annual Report for 1994-95, only about 5%(1) of
cases are litigated.
At the moment, all counselling is provided free by the Court.
According to the Annual Report 1994-95, in that financial
year, the Counselling Service dealt with 32,378 cases - an increase
of 7,800 over the previous year.(2) About half of all counselling
was voluntary and held before the parties filed for divorce.(3)
According to the Family Court, most of the voluntary counselling
was aimed at settling issues like property and maintenance rather
than at reconciliation.
The imposition of a new fee for voluntary counselling was
foreshadowed in the Budget. The Second Reading speech for the
Family Law Amendment Bill 1996 confirms that the fee will
be $40 an hour. It is important to note that this Bill does not
impose the fee, it clears the way for the fee to be imposed by
regulation. The Attorney-General's Portfolio Budget Statements
1996-97 said the fee would be charged from 1 January 1997(4).
This is confirmed in the Bill's Explanatory Memorandum.(5)
The Government expects the fee will raise $0.835 million in
1996-97 rising to $1.9 million in 1998-99, the first full financial
year in which the measure will take effect.(6) The Second Reading
speech explains the rationale for levying the charge this way.
One of the major considerations favouring the imposition of fees
in this area is the fact that the Commonwealth funds the Family
Court to provide counselling and mediation services and also funds
community based service providers which provide similar services.
The community based sector provides these services for a fee to
those who can afford to pay. Those who cannot afford to pay are
exempt from fees.
The demand is such that it is not possible for all to have
access to the Family Court's services, in these circumstances it is
inequitable that a service is provided for a fee to some, often
residents of rural and remote locations, but others, purely on the
basis of geography, receive a similar service for free.
This voluntary counselling fee is just one of a number of
cost-cutting, revenue-raising measures imposed on the Court in the
Cost cutting measures include:
- a 2 per cent reduction in running costs - $1.2 million - due to
the 2% increase in savings demanded through the efficiency
- a cut to running costs of $2 million - to meet the Government's
- the Court's share of the portfolio savings imposts - $0.526
- funding cuts of $1.65 million to programs initiated under the
previous Government's Justice Statement.
The Bendigo and Mackay Counselling Sub-registries have already
closed as a result of these financial measures.
Revenue raising measures include two new fees imposed from 1
- a $250 fee for applications for matters other than divorce, eg
maintenance, property or custody orders; and
- a $400 one-off fee for setting down a matter for a full hearing
in the Family Court.
The fee for filing for divorce has risen - from $368 to
Other federal courts, too, have had their fees overhauled.
According to the Attorney-General's Portfolio statement,
the fee increases will bring cost recovery in Commonwealth courts
and tribunals to approximately 30% - the average of the States and
Schedule one, item 2 adds a new section
125(ca). This allows the Governor-General to make
regulations setting fees for voluntary counselling or mediation
services. The new section says 'fees are to be payable in respect
of the use of the counselling or mediation facilities of the Family
Court in situations other than where a Court orders or directs a
person to attend the counselling or mediation'. The Bill also
extends the Court's existing power to grant exemption from fees to
the proposed counselling and mediation fee [new section
Is there a loophole?
Lawyers and some of their clients may be able to avoid the fee
by altering the procedural way in which they approach divorce.
Instead of having voluntary counselling before filing for divorce,
they may elect to postpone counselling until after the initial
paperwork is done, and then rely on a judge or registrar to make
the necessary order or directive. (Under the amendment, counselling
is free if directed or ordered by the court.).
The court has the power in a number of situations to order or
direct counselling. There are at least two which may provide a
The section which may provide the widest avenue for those
seeking a loophole is probably section 62F. Under
62F(2), a court may, at any stage of proceedings
involving a child under the age of 18, order the parties to attend
a conference with a counsellor:
(a) to discuss the care, welfare and development of the child;
(b) to try to resolve any difference between the parties
affecting the care, welfare and development of the child.
This section is drafted very broadly. Arguably any issue between
a divorcing couple with a child could impact on the care, welfare
and development of the child. Furthermore, an order to attend could
be made right at the start of the divorce process, once the divorce
application for divorce was filed.
According to figures being prepared for the Family Court's
annual report for 1995-96, 59.1% of divorces involve children.
Therefore, more than half of the couples seeking a divorce could
use this avenue if they chose.
Section 19B(1) empowers the Family Court, with
the consent of the parties, to send any or all matters in dispute
to a mediator.
For many couples, mediation may achieve the same outcome as
counselling or conciliation. However, the process is difference. It
is less interventionist than a conciliation conference, and some
couples, for example if domestic violence is an issue, would be
screened out as unsuitable.
Order 24 rules 1(1) and 1(1A).
Until recently, Order 24 rules 1(1) and
1(1A) may also have provided an escape hatch.
Order 24 rule 1(1) says the Court or a
registrar may order parties to attend a conciliation conference if,
in the opinion of the court or the registrar, it would be
advantageous to do so.
Order 24 rule 1(1A) says that if an order under
section 79 of the Act (that is, an order in
relation to property) is being sought, the Court or a registrar
must order the parties to attend a conciliation conference.
However, following the High Court's decision in Harrington
v. Lowe on April 24 1996, confidentiality is no longer
guaranteed at those conferences. Therefore, less use may be made of
Order 24 conferences.
Whether lawyers and clients will be able to use these sections
to avoid paying for voluntary counselling may depend to a certain
extent on the judges. A judge's attitude may depend on whether he
or she believes the provision of free counselling services is
essential to fulfilling one of the court's basic aims - solving
disputes by conciliation and mediation rather than litigation.
Section 14 of the Act could provide some
support for that view. It sets outs the Act's objects in relation
to primary dispute resolution:
The object of this Part:
(a) to encourage people to use primary dispute resolution
mechanisms (such as counselling, mediation, arbitration or other
means of conciliation or reconciliation) to resolve matters in
which a court order might otherwise be made under this Act,
provided the mechanisms are appropriate in the circumstances and
proper procedures are followed; and
(b) to ensure that people have access to counselling:
(i) to improve relationships covered by this Act; and
(ii) to help them adjust to court orders under this Act.
The Second Reading speech says no decision has yet been made on
how the fee would be imposed - whether it would be upfront or
collected at an hourly rate. Nor is there any indication as to who
- one or both of the parties - would pay the fee. It could become
just another financial issue - albeit a comparatively small one -
for the parties to wrangle over before the Family Court.
- Family Court of Australia Annual Report 1994-95,
- ibid, p48.
- ibid, p48.
- The Attorney-General's Portfolio Budget Statements
- Family Law Amendment Bill 1996 Explanatory Memorandum,
- The Explanatory Memorandum.
- op cit, Attorney-General's Portfolio Budget
Bronwyn Young Ph. 06 277 2699
18 September 1996
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Last updated: 19 September 1996
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