Federal Court decision on divorce fee hike challenge due next week, Government faces repaying more than $1m
The Federal Government is faced with the prospect of having to pay back potentially more than $1 million in divorce application fees in a case being heard in the Federal Court.
A decision is expected next week on whether the Federal Government’s increase in Family Law Court fees, including a 42 per cent increase in the fee to file an application for divorce – from $845 to $1,200 – will be declared void.
The case has been brought by Queensland Labor MP Graham Perrett and Senator Claire Moore and joined by three applicants for divorce.
They argue the regulation introduced by Attorney-General George Brandis on July 13 to increase fees was substantially similar to the one rejected by the Senate on the last sitting day before the Winter break – June 26 – in violation of the Legislative Instruments Act, which prevents the executive arm of Government enacting regulations that are “substantially similar” to any voted down by the Parliament.
The Senate rejected the original regulation, then almost immediately, while the Senate wasn’t sitting, the Attorney has brought back a new regulation – extra fees on top of what happened, rejecting what happened. It is arrogance and it is disrespect for all of us.Senator Claire Moore
Senator Moore said the Senate’s hands were tied until Parliament resumed on August 10 and in the meantime, people were paying the extra fees.
“The Senate rejected the original regulation,” Senator Moore said.
“Then almost immediately, while the Senate wasn’t sitting, the Attorney has brought back a new regulation – extra fees on top of what happened, rejecting what happened.
“It is arrogance and it is disrespect for all of us.”
Senator Moore said it was “a straight savings measure for Government”.
“It’s actually disrespect for the Senate and disrespect for the community because when that regulation came up … we rejected it,” she said.
Mr Perrett said the increases, which went up another $5 from the first regulation to the second regulation, were too onerous.
“It was like a 40 per cent increase,” Mr Perrett said.
“You’re attacking people at their most vulnerable time, their darkest hour – he’s treating the court system as a cash cow.
“If he put all of the money into access to justice and front-line judicial initiatives that would be great.
“But instead, 80 cents in the dollar is going to consolidated revenue, going to [Federal Treasurer] Joe Hockey to spend in Government projects he sees fit.”
Hopes people might get money back: lawyer
Matthew Littlejohn, from instructing solicitors Maurice Blackburn, said the hope was if the court declared the regulation void, that people would be able to get their money back.
“These fees has resulted in an increase of $67,000 per day extra in fees being taken, every day the courts have been open,” Mr Littlejohn said.
“If you put the two pieces of legislation side by side and look at them, the $5 in the second one isn’t substantially different – they are the same in substance.
“In the first one, you had a massive increase in fees.
“In the second one you had a massive increase but a little bit more.”
In court, Richard Lancaster SC, appearing on behalf of Senator Brandis, said the $5 difference was substantial.
“It’s not an immaterial increase,” Mr Lancaster said.
“Two million dollars over four years is very far from immaterial.”
Senator Brandis said the majority of the money would be pumped back into the legal system.
“It’s actually a smaller increase that was imposed by the previous Labor government but it is nevertheless a hike,” he said.
“But we have to invest money in the family law system.
“Most of the money yielded by this change will be reinvested back into the family law system so we can address issues like cost and delay, which have bedevilled that system.”
After hearing submissions from both sides, Justice John Dowsett adjourned the case and told the court he hoped to deliver a judgement early next week.