Labor is taking Attorney-General George Brandis, QC, to court, to wind back higher fees for people divorcing their partners and going through the Family Courts.
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Senator Brandis recently sneaked through a regulation raising divorce application fees from $845 to $1200 in the Federal Circuit Court and from $1195 to $1200 in the Family Court, despite the Senate disallowing a slightly smaller hike last month.
Labor has vowed to disallow the new regulation, which its family spokesman Graham Perrett has called "an insult to justice" when Parliament resumes next month.
The regulation, which came into effect last week, also raised other family law fees slightly higher than in its initial May proposal. The government has said this was necessary because it could not re-register a previously disallowed regulation.
But lawyers for Mr Perrett and Labor senator Claire Moore argue that the second regulation is the same in substance to the first one, and so still breached the law against re-making disallowed regulations.
They will ask the Federal Court in Brisbane on Friday to declare that the regulation is the same in substance to the original rejected regulation and "has no effect". They also want the court to issue an injunction preventing the Attorney from enforcing it against people before the Family Courts.
If successful, Maurice Blackburn lawyer Rodney Hodgson told Fairfax Media that people who paid higher fees between the July regulation and the court ruling could be identified, and be refunded the difference. He will ask to have the matter heard quickly.
Senator Brandis, he said, had shown "contempt for the parliamentary process".
"That's what [the law] is there for, to ensure that the operation of Parliament is not undermined by having things sneak under the radar ... that the Parliament is not disrespected," he said.
Asked whether the court was an appropriate place for the political fight over Family Court fees, Mr Hodgson said that Parliament, the "correct forum", had been undermined.
"We believe the courts have a role to play in the scrutiny of the process by which these fees have been imposed upon participants in the process."
Mr Perrett's solicitors wrote to Senator Brandis on Wednesday, saying that they intended to file the court application if he did not withdraw the regulation by the next day. They asked him to withdraw it "immediately" if the Governor in Council had "overlooked or misunderstood" the law on disallowed regulations.
"Should the instrument be withdrawn there will be no need for the proposed litigation. However, if there is no agreement, we hold instructions to proceed with the enclosed application with all urgency, due to the wide-ranging impact the instrument will have on a large number of Australian citizens."
A copy of Mr Perrett's court application, setting out the legal grounds for his claim, was attached to the letter.
Among the changes in the second regulation, full divorce fees rise $5 from the original change to $1200, and fees to issue a subpoena also rise by a further $5 on the May proposal, to $125.
The government threatened not to replace retiring judges, cut frontline services and close court registries unless the higher fees – expected to raise about $87 million over four years - remained, saying in the regulation they were "essential" to making the family courts' finances sustainable.
About 60 per cent of the fees would go back to the Family Courts, which are facing a $6 million loss this year.
A spokesman for Mr Brandis called the legal action "shameless hypocrisy" from Labor, which raised more money by increasing court fees when in government in 2012 and returned less of the revenue generated to the courts.
The Coalition did not disallow Labor's court fee increases at that time.
The spokesman said the higher fees ensured "the courts are placed on a sustainable funding footing and enhances the courts' capacity to provide services to families and other litigants".
Vulnerable litigants would still be able to pay reduced fees for divorce applications and fee exemptions, deferrals and waivers would still be in place.
