Sunday, 16 August 2015

Divorce filing fees stay down- for now at least

"Those magnificent men in their flying machines,
they go up tiddly up up,
they go down tiddly down down.": Those Magnificent Men in Their Flying Machines


A great quote to describe the  way that family law filing fees have been going.

Before 25 June they were down. They were going to go upppity up, up on 1 July: substantially. Then the Senate stepped in on 25 June and disallowed the increase. They remained tiddly down, down.

That might once have been the end of the matter as the Legislative Instruments Act 2003 provides that when a regulation is disallowed by the Senate, that instrument cannot be reintroduced for 6 months.

The Government was not to be outdone. On Sunday 12 July 2015, when the Senate was in recess, the Government hiked the fees again uppity up, up- to take effect the following morning, Monday 13 July. However, just to make sure that the Government didn't get stuck by the Legislative Instruments Act, the fees were hiked up by an extra $5.

The fee hike was substantial:

  • A $355.00 increase in the full Application for Divorce fee in the Federal Circuit Court of Australia from $845.00 to $1,200.00. This increase matches the full Application for Divorce Fee in the Federal Circuit Court to the Family Court of Australia, which has increased from $1,195.00 to $1,200.00;
  • An $85.00 increase in the fees for an Application for Consent Orders from $155.00 to $240.00;
  • A $70.00 increase in the fees for issuing subpoenas from $55.00 to $125.00; and
  • A new filing fee will be payable for the filing of amended applications or subpoenas in the sum of $125.00.
I do not recall in 30 years of practice that chaos like this has happened from a fee hike. Those who lodged their fees by post were rejected because the amount was too little. Suddenly solicitors were demanding more money from disgruntled clients for the filing fee, because the Government had made the changes without any notice.

The ALP and the Senate were not to be outdone.

The first step was to challenge the tiddly, up, up in the Federal Court. ALP members Graham Perrett and Senator Claire Moore were in the Federal Court seeking to get the fee hike set aside, suing Attorney-General George Brandis in the process, and to go tiddly down, down. If they had been successful, then any reduction in fees by the Senate overturning the fee hike would have had to be refunded by the Commonwealth government.

They were not successful, the Federal Court deciding that fee hike was different from the previous uppity, up, up.

In the meantime the Senate came to the fore again and disallowed the fee hike. Unless the Government introduces yet another, different fee hike, the fees remain as is, the 25 June rate, for the next 6 months with the divorce filing fee at $845, not $1200, for example.

Watch this space to see what happens next!

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