Government Introduces Controversial New Regulation To Increase Family Law Fees
Monday 20 July 2015 @ 11.42 a.m. | Judiciary, Legal Profession & Procedure | Legal Research
A regulation to increase fees in the Family Court of Australia and the Federal Circuit Court (FCCA) was registered by the Government last week. The Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015 (Cth) would increase divorce fees in the FCCA by $355 to $1200, and increase other existing family law fee categories by an average of 11 per cent.
The regulation has stirred up contention among the parties as the Senate disallowed part of an earlier regulation that made slightly smaller fee increases. Schedule 2 of the Federal Courts Legislation Amendment (Fees) Regulation 2015 was disallowed by the Senate on 25 June, which was the last day of parliamentary sittings before a six-week recess. By introducing the new regulation in this recess, the Government has ensured the Senate cannot disallow it until Parliament returns in August.
The move also has the potential to raise procedural questions. As The Guardian Australia pointed out, “a question mark remains over the legality of the new regulation.” Under section 48 of the Legislative Instruments Act 2003 (Cth), once a legislative instrument has been disallowed, another legislative instrument that is “the same in substance” must not be made for another 6 months, and will have “no effect”. According to The Guardian, a spokesperson for Brandis said the regulation was not “the same in substance” because the fees are higher than those originally listed in the June regulation (by $5).
Why are the regulations controversial?
Opponents to the first regulation described it as a “divorce tax” that could affect access to justice. The Greens’ legal affairs spokeswoman Penny Wright told the Sydney Morning Herald that it was “completely inappropriate to use family breakdown as a cash cow for the government”, and that the fee increases would make it more difficult for domestic violence victims to get divorces, saying the fee increases were “targeting people in need right when they are most vulnerable”. The Law Council of Australia also expressed their concerns about the original fee increases, with the Chair of the Law Council’s Family Law Section, Mr Rick O’Brien, saying in a press release:
“The changes to family law fees are particularly cynical when there is no option for divorcing parties other than to apply to the court, and even when they reach an agreement there is a fee imposed for consent orders. The fact that the revenue raised is not being fully invested back into the underfunded Family Courts simply makes it worse…This is a heavy blow to access to justice in this country and a continuation of an unfortunate failure to acknowledge the damage to the justice system of excessive court fees, or to consult effectively with the courts and the legal profession. Many people on middle-to-low incomes may now find it simply too expensive to enforce their rights through the courts, which will undermine the rule of law and the proper administration of justice.”
The Community and Public Sector union president also expressed concern about the impact of new fees on court staff, saying to The Guardian they had been “caught off guard” about the fees being reintroduced:
“The family court staff already have a very stressful and difficult job, given the often painful family issues dealt with by the court… Staff and families using the court do not need the added stress of being hit with unexpected extra charges.”
The Government, on the other hand, says that the increase in fees is essential to making the court system sustainable. According to the Sydney Morning Herald, the Federal Circuit Court is facing a $6 million loss this year. The paper quotes the Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015’s explanatory statement, which says:
“Given the structural deficits currently facing the family courts, the only alternatives would be to cut frontline court services, close registries and not replace judges, which would severely undermine access to justice.”
The Sydney Morning Herald has reported that the FCCA is currently short six judges, with one more expected to retire this year and one new replacement lined up. The paper says “[i]t is understood that the government considers not replacing judges as a last resort to save money if the higher fees are disallowed.”
However, Labor has vowed to disallow the new regulations as soon as Parliament resumes, with family law spokesman Graham Perrett saying that the threat was “an insult to justice”.
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