Labor has brought forward a legal challenge to the federal government’s price hike to court fees that has seen the cost of divorce applications rise 42%.
The Coalition introduced changes to court fees on 12 July, effective from the very next day, after the senate disallowed similar regulation before parliament rose for its winter recess.
As of 13 July, divorce fees rose from $845 to $1,200, issuing a subpoena went up from $55 to $125, and amending a court application attracted the new fee of $125. The cost for concessional applicants will not be affected.
Labor and the Greens say the fee increase is invalid because legislation says that the government can not re-introduce similar regulation within six months of the original regulation being knocked back.
On Friday morning, Maurice Blackburn lawyers filed proceedings in the federal court on behalf of Labor’s family law spokesman Graham Perrett, which would deem the regulation introducing the fee hike ineffective.
“The legal issue is whether the regulations now in force are, in substance, the same as those knocked back by the Senate. We say they are. And if they are, they are not valid and the government will have to go back and do things properly, including not bypassing the Senate,” Rod Hodgson, head of Maurice Blackburn in Queensland, said.
“Our client, Mr Perrett, also instructed us to write to [attorney general George] Brandis to allow him an opportunity to do the fair thing, and to promptly withdraw this regulation in a bid to rectify this as soon as possible for families, which we did.
“The attorney general has failed, however, to withdraw the regulation, leaving us no option but to file proceedings in the federal court to try and put an urgent stop to Australians having to pay a divorce fee hike that has been disallowed by the parliament,” Hodgson said.
A spokesman for Brandis said the money recouped from the fee increase would “ensure that the courts are placed on a sustainable funding footing”.
“This is shameless hypocrisy from the Labor party who raised more through court fee increases in their 2012 budget, yet returned less of the increased revenue to the courts,” the spokesman said.
“The government is committed to ensuring vulnerable litigants are not unduly impacted by court fee increases. A reduced fee for divorce applications will remain unchanged for vulnerable applicants. Fee exemptions, deferrals and waivers will still apply to vulnerable litigants where appropriate,” the spokesman said.
If Maurice Blackburn’s application is successful, the federal court could decide that the government should reimburse court applicants who have had to pay higher fees for the last fortnight.
That would be welcome news for Canberra-based public servant, Geoff Nichols, who applied for divorce shortly after the new fees came in.
“I got a rude shock,” Nichols said. “I was furious.”
Nichols had been saving for the original $845. “It’s quite painful. You have to make a lot of sacrifices, in a financial sense, during the separation.”
He wrote to his local member, Labor’s Andrew Leigh, expressing outrage over the divorce tax.
Labor and the Greens have vowed to team up in the senate to disallow the new price increase, which they have dubbed the “divorce tax”, but will have to wait until parliament resumes on 10 August before convening.
“In the last sitting, the Senate recognised the extreme unfairness of this measure. Now we see a ruthless government playing politics with our legal system and compromising people’s chance to get the legal certainty they need to re-start their lives,” the Greens’ legal spokeswoman Penny Wright said.
“Regardless of the result of the court challenge, we will move to disallow this divorce tax regulation in the next sitting of parliament. The people affected can’t afford to wait.”
