Vexed, riled, irked, ticked, honked, ****** – Jed Bartlett, fictional US president used these words to describe how he felt when the Republican Convention was rubbishing his two presidential terms.
This pretty much sums up the way that I felt this moring when we found out that the Attorney-General had used a “back door” in legislation to put in place a fee increase in the Family Law Courts that had been voted down by the Senate prior to the winter break.
Below is my letter to Mr Brandis setting out my view of the the Federal Government’s actions.
Shame Mr Attorney, Shame!
The Hon. George Brandis QC
Attorney-General of the Commonwealth of Australia
PO Box 6100
CANBERRA ACT 2600
Dear Mr Attorney
INCREASE TO FEES PAYABLE UNDER THE FAMILY LAW ACT
I write to place on record my deep concern regarding the changes to the fees under the Family Law Act for users of the services of the Family Court and Federal Circuit Courts.
It appears that from the information provided to members of the Family Law Section of the Law Council of Australia on 13 July 2015 and notwithstanding the fact that the Senate had, in my view quite wisely, voted to disallow the regulations increasing fees for the Family Law Courts, the Government used a regulation-making power under section 125 of the Family Law Act 1975 and section 120 of the Federal Circuit Court of Australia Act 1999 to, for want of a better expression, “back door” the change in fees that the Senate had disallowed.
It would appear that your government has not heeded the view of your Senate colleagues and their role as the State’s house of review in disallowing the making of such changes to fees.
When the Federal Magistrates Court of Australia (now Federal Circuit Court of Australia) was brought into existence in 1999, the aim of the creation of the Court was to provide a cheap, less formal and more accessible form of access to Courts for litigants.
I have been practising for long enough to recall the filing fees of the Federal Magistrates Court being initially set at an amount of approximately $208 for the filing of an Application for Divorce.
Under the changes which were registered in the Federal Register of Legislative Instruments on a Sunday (12 July 2015) this cost has now increased to an amount of $1,200.
The inclusion of new fees that have previously not been charged is, in my view, nothing but a money-making approach aimed at gouging clients who require the use of the Family Law Courts to finalise their proceedings.
The charge levied in relation to filing an amended document is wholly unjustified in circumstances where that document is simply entered into the CaseTrack system, sealed, and returned to a practitioner or litigant for service.
For some of my clients, this is a fee increase that they cannot tolerate. It is extremely hard for me as a practitioner to justify how the fees have been increased so much over the last five (5) years.
It appears to me as a practitioner of approximately fifteen (15) years’ standing and an Accredited Specialist in Family Law that your government appears to be penalising people who require access to the Court system after having exhausted other avenues such as family dispute resolution and mediation.
Rather than adequately and appropriately funding the Court and providing it with proper resources, it would appear that you are simply implementing a user pays system which is unfair and is in no way, shape or form able to be considered an appropriate way of litigants accessing justice.
The approach of your government in relation to the funding of the Family Law Courts and associated services, including National Legal Aid, family dispute resolution centres and community legal centres is, in my respectful submission, further evidence of your government being out of touch with community standards.
As part of my practice, I will be informing clients as to the manner in which the fees have been changed and the disingenuous way that your government has sought to deal with this issue.
The arrogance of your government and your department is, with due respect, breathtaking.
As a fourth generation National Party voter and a second generation legal practitioner, I can only surmise that your government clearly has no clue about the pressures that litigants face in accessing the court system or the pressure that solicitors as small business owners are under as a result.
ANDREW MCCORMACK BA. LL.B
Accredited Family Law Specialist