Alliance Family Comment: Our clients are expressing extreme frustration at the uncertainty around Family Court fee changes. At a time when they are dealing with one of the most stressful situations they will ever face, this is an unwelcome distraction and they just wish the government could get their act together. From a business perspective there is no easy way to explain the toings and froings on this issue to our clients – and that it is nothing to do with us; we just can’t offer fixed price disbursements at the moment. Nicola Berkovic tries to makes sense of the sequence of events in her recent article.
Nicola Berkovic reports in the Australian on 25 August 2015:
Law firm Maurice Blackburn has filed another legal challenge to the Abbott government’s controversial divorce fee hike.
The Federal Court two weeks ago refused to strike down a regulation made by Attorney-General George Brandis imposing a fee hike to family law fees.
A similar regulation had been knocked over by the Senate just two weeks before the second regulation was made.
Today, Maurice Blackburn filed an appeal on behalf of a Brisbane woman who was forced to pay the divorce fee while the increase was still in place.
The increase, since disallowed by the Senate, raised the fee for a divorce from $845 to $1200.
If the woman’s appeal is successful she will succeed in forcing the government to refund money paid by family law litigants before the fee increases were disallowed by the Senate.
The increase raised about $67,000 a day while in place for almost a month.
The appeal could also make it harder for Senator Brandis to try again to raise family law court fees.
Senator Brandis is believed to be considering options to raise family law court fees a third time. The increases, which also raised the cost of a subpoena and other family law court fees, were expected to raise about $65 million over four years.
While the majority of this was to be handed to the stretched Family and Federal Circuit Courts, some of the fees were to be returned to consolidated revenue to repair the budget bottom line.
Labor frontbencher Graham Perrett and senator Claire Moore filed the initial, unsuccessful, Federal Court challenge to the second fee increase, arguing it was ‘the same in substance” as the increase already disallowed by the Senate. The Brisbane woman, who paid the increased divorce fee, was also a party to that appeal.
The first fee increase, in June, had increased the divorce application fee to $1195. Just two weeks after this measure was disallowed by the Senate, the government raised the fees again by an extra $5.
In rejecting the Labor challenge, Federal Court judge John Dowsett ruled that for a legislative instrument to be invalid, it needed to be “in substance or legal effect, identical” to a measure previously disallowed by the Senate.
He said the $5 additional increase to the fees while “small” was not ‘insubstantial”.
This decision gave Senator Brandis scope to again lift the fees by a similar, but not identical amount, even though the measure has twice been rejected by the Senate.
Mr Perrett, who is not a party to the appeal, today said it raised “an important matter of principle”.
“This is a tax designed to exploit people during their darkest days,” he said.
“It is an absolute disgrace that the Abbott Government is forcing families which are suffering to suffer even more.
“These are not services that should be used to increase consolidated revenue.
“It is important that this law is clarified so that there can be certainty about the meaning of this long accepted legislative safeguard surrounding our parliamentary processes.”
Maurice Blackburn lawyer Matthew Littlejohn said the appeal was important for the families affected by the fee hike.
“Whilst we respect the earlier decision of the Court, we feel this is an important matter that needs to be appealed for people across Australia who were forced to pay these fees while they were also grappling with the pain of a divorce,” Mr Littlejohn said.
“This is particularly important given reports the Attorney may again be considering a hike in Family Court fees by regulation, despite the Senate having now disallowed this regulation twice.
“Continuing to try to force these fees on families is not only unfair, it again raises significant concerns about access to justice.”
Mr Littlejohn said the appeal was also important in standing up for the processes of the Parliament.
“The Attorney-General believes that he can reintroduce regulation after regulation with only minimal changes each time,” Mr Littlejohn said.
“We believe that is unfair, and also shows disregard for the Senate.
“We’re asking the Full Court of the Federal Court to re-examine whether that is the correct interpretation of the law.”
