- Parliamentary Business
- Senators & Members
- News & Events
- About Parliament
- Visit Parliament
Legal and Constitutional Affairs References Committee
Impact of federal court fee increases since 2010 on access to justice in Australia
- Parl No.
- Committee Name
Legal and Constitutional Affairs References Committee
Crossin, Sen Trish
Humphries, Sen Gary
- System Id
Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Table Of ContentsDownload PDF
Previous Fragment Next Fragment
Legal and Constitutional Affairs References Committee
(Senate-Friday, 17 May 2013)
CHAIR (Senator Wright)
- Senator HUMPHRIES
Content WindowLegal and Constitutional Affairs References Committee - 17/05/2013 - Impact of federal court fee increases since 2010 on access to justice in Australia
EMMERIG, Mr John, Member, Federal Litigation Section Executive, Law Council of Australia
FARRAR, Mr Denis, Member, Family Law Section Executive, Law Council of Australia
GASZNER, Mr David, Member, Federal Litigation Section Executive, Law Council of Australia
PARMETER, Mr Nicholas, Director, Civil Justice Division, Law Council of Australia
Evidence from Mr Parmeter and Mr Gaszner was taken via teleconference—
CHAIR: We welcome representatives from the Law Council of Australia. We have two people here in person and two via teleconference. Would you please introduce yourselves?
Mr Emmerig : I appear on behalf of the Law Council. I should indicate that I am a partner in a law firm and not an employee of the Law Council. Mr Denis Farrar also appears for the Law Council. He is also a partner in a law firm and not an employee of the Law Council. Nick Parmeter, on the line, is an employee of the Law Council. Mr David Gaszner is also a law firm partner and also not an employee of the Law Council. Perhaps by way of further introduction and the reason for this particular group, my area of practice for the last 25 years has been Federal Court and High Court litigation. Mr Farrar is a family law specialist and can speak to issues on that area. Mr Parmeter has been involved in coordinating the Law Council's submission. Mr Gaszner has been a contributing author to that submission and his expertise is also across federal litigation level matters—Federal Court and the Federal Magistrate's Court, now Federal Circuit Court—to give you perhaps some broad experience.
CHAIR: The Law Council of Australia has lodged submission 26 with the committee. Do you wish to make any amendments or alterations to the submission?
Mr Emmerig : No.
CHAIR: I now invite you to make a short opening statement, at the conclusion of which I will invite members of the committee to ask questions.
Mr Emmerig : If convenient, I will speak briefly first, and I think Mr Farrar would like to say something particularly about the Family Law side. By way of general introduction, it is perhaps a little surprising that we find ourselves here debating these points and raising the concerns we have raised in the submission about the fee increases. There seems to be, between the Law Council and the Attorney-General's Department, much agreement on basic philosophies—that is, that access to justice is very important; I do not think that is a contentious concept. It begs the question of how it is that we get to this point where we do have such divergent views on the appropriate way to deal with the Federal Court fees for filing and for other processes in that court.
I think it is worth reflecting briefly—I do not propose to go into detail on it, because it is contained in the submission, and I should indicate that I am not an author of the submission although I speak to it today, but it has been contributed to by many people—that there seems to me to be a process problem. There seems to have been a very sad story leading to the Federal Court fee position now. There has been a lack of consultation, which means that for the bodies we represent—and that is all the law societies and the bar associations, and through them essentially 60,000 front-line practicing practitioners—that input has been lost in the process of setting these fees, and I think that is an important problem.
Moving past that, there seems to be another problem, I think, which is important to reflect on before we get to the substance of how you solve or deal with this issue from our perspective. I think there is a characterisation problem. I only briefly caught the end of Professor Legg's discussion with the committee, but that characterisation problem was I think akin to what he discussed. At one level it is a characterisation problem as to what the proper role of the courts is. There seems to be an underlying philosophy that the right outcome is to drive everybody into ADR processes. We think that is a mistake. We think ADR has a very important role to play, but the role and the importance of the courts cannot be understated. People have a right to seek appropriate justice before the courts, and it is important that they are not impeded in doing so.
Linked to that is the important issue of the recognition of the role of the court in our Australian society. We have a concern that perhaps in setting this policy within the Attorney-General's Department there has been a perception that the court should be treated as if it is a department of government and not, as it properly is, a branch of government—one of the three main branches of government. There seems to be a user-pays philosophy which is not consistent with that status as a branch of government. One can understand that in tight financial times people are looking to save money, and cost-cutting is on everyone's agenda, but it seems to me—and I respectfully suggest—that it should be very important to this committee and to parliament generally that great attention is paid in that sort of environment to ensuring that the pressures to cost-cut and recover revenue and so on do not provide or are not used as a vehicle to prevent access to the important instrument of the courts to provide justice to people.
So, we think there is also, as I said, characterisation problem. There seem to be some other misconceptions behind this whole philosophy that increasing fees will deter cases, and that is a good thing, We say that increasing fees is going to have an impact on low- to middle-income Australians and small to medium businesses. These fees are impacting. There is anecdotal evidence discussed in the submission which is important to reflect on, particularly because it comes from people who deal on a day-to-day basis with the clients who seek to use the justice system.
So there is a range of problems there. There is no real logic that we have been able to discern behind the quantum of the fee increases. It is not linked to CPI or some other ordinary benchmark like that. It puts the Federal Court fees completely out of alignment with the fees being charged by other courts. It makes the Federal Court fees the highest in the country and therefore the most difficult for people to access. Of course, one needs to reflect on the fact that the claims that go before the Federal Court are not simply claims in relation to financial compensation between parties; they touch on one of the most fundamental issues, and that is the right of people to seek relief in relation to government decisions. If you increase the fees at the front end and prevent people from accessing a court that can provide that relief, you are in essence condoning the ability of the government to limit citizens to challenge government decision making—and government decision making is not always right.
We say there are a number of things that should happen. We discussed in the submission a range of impacts. Our primary position is that we would like to see the changes to the filing fees wound back; a different process engaged in going forward for the setting of fees; and a strong statement from the committee in relation to its concern about the current situation and to reflect the importance that it sees for access to justice for citizens to the federal courts.
Those are our introductory comments. I am happy to speak to any part of the submission, but Mr Farrar would like to say something in particular about the very important issue of the impact on people who are involved in litigation in the Family Court.
Mr Farrar : Firstly I would endorse the comments concerning the separation of powers, which seem to be somewhat infringed by the imposition of substantial fees on litigants taking court action. I think paragraph 83 of the Law Council solution echoes what Mr Emmerig has just said. In paragraph 29 of the Law Council submission we refer to a letter from the previous Attorney-General to the Law Council in September last year in which she said the principles on which the fees were based include sending appropriate pricing signals to court users to encourage them to utilise alternative dispute resolution processes where appropriate and ensuring access to justice is maintained.
In family law matters litigants make applications or are involved in proceedings in the Federal Circuit Court or the Family Court of Australia—and indeed also the Family Court of Western Australia, which members might appreciate is a separate statutory court. In all parenting matters, which is the majority of applications that are filed, counselling, ADR, is mandatory before a litigant can commence proceedings. Section 60I of the FAMILY LAW ACT requires that to occur.
The government has spent large sums of money on establishing family relationship centres, which, along with the community based traditional counselling services, provide ADR for potential litigants to try to help them reach agreement without litigation. Those certificates are mandatory but can be waived on the grounds of situations of urgency and where ADR is appropriate for whatever reason, often including domestic violence. When urgent cases come before the court without there having been counselling, the court deals with the urgent situation and then refers the matter to counselling, to ADR, to see if it can be resolved.
Historically—and by that I mean before family relationship centres were established—the statistics under the Family Law Act were that approximately 95 per cent of cases did not go to trial. Interestingly the statistics since the family relationship centres were established would indicate that the same number still exists—that is, about five per cent of couples need a court decision, and that has been the situation historically fairly consistently.
That indicates—and it is the experience of family lawyers—that parties who litigate in parenting matters are people who have been unable to resolve their disputes through the processes of ADR and need a court to do so. It is easy to say that they must be difficult people or that there must be inappropriate behaviour, but quite often they are both worthy parents who just cannot agree on one of the most important aspects of their lives: the arrangements for their children. One should not look at them as a failure, but rather as a couple who need the assistance of the legal process to resolve that which they have been unable to resolve by themselves.
It is true that a number of cases that go to trial involve inappropriate relationships, domestic violence, child abuse and, quite often, overbearing conduct on one party's side, which not only has caused the breakdown of their relationship but has caused them to be unable to resolve their dispute without a judge having to do it for them. In my experience, which is some 38 years, the vast majority of people who litigate are good parents—good people—who cannot resolve what is for them one of the most important issues in their lives.
Some of them choose to represent themselves, and that creates stresses not only for the other party, if the other party is represented, but also for the court system because inevitably self-represented litigants impose stresses and consume court resources in a way that properly represented people do not. The Family Law Council issued a report, which is referred to in the Family Law Council published reports, back in 2000. I sat on that committee and I think the comments that were made then are still applicable.
The vast majority of people who go to court need to be there. Our submission is essentially that imposing greater financial impediment upon them in accessing courts is not going to help them resolve the dispute that they have. There is no research, to my knowledge, that would suggest that charging people more is going to mean that they are going to settle their dispute. The reality is that people, if they reach the breaking point in terms of their finances—if the straw that breaks the camel's back is the filing fee—will be unhappy and disgruntled. If you divert them out of the legal system by making it unaffordable that does not mean that their problem is solved. It just means that there are other ways of solving problems than through the appropriate court processes.
The Law Council's view is that access to justice for separating families is essential where other means of resolution have failed. Delayed or obstructed access to the court process generally has detrimental effects for separating families and, in particular, their children. Even where children are not the subject of proceedings, they are often heavily impacted by delay in dispute resolution. For example, future accommodation arrangements for children will be dependent on resolving property matters between their parents.
Many separating families have limited access to liquid funds. The majority of cases that I have been involved in have involved parents who are parties whose assets are their home, perhaps other real estate, superannuation and the other normal accompaniments of modern life, but rarely do they have significant savings. In those circumstances, if the available cash that they have, which they generally guard carefully, is devoted to trying to resolve the dispute with their ex-partner then, at the end of the day, that is denuding them and their future, because in the family law circumstance it is rare that a loser pays a winner's costs.
There is a cost provision in the act, but rarely is it invoked. So each party is faced with paying their own legal fees and any other associated expenses of conducting litigation. By and large, these are people who can ill-afford it. So people go more into debt in order to be able to afford legal fees. Of course, court filing fees are an upfront expense. The payment of legal fees is quite often postponed until the outcome, whereas court fees have to be met immediately. Often a separating couple will not have equal access to income and savings. The spouse without assets or income is likely to be the one who needs to make the application to a court. The limited availability of legal aid means that many people who are in financial hardship or simply have limited income and no liquid assets have no practical means of paying court fees. Many will still not qualify for wavers under the current structure. Thus, for separating persons with no access to cash, any court fee, no matter how small, can represent a real impediment on accessing the legal system. Those are comments from a family law perspective.
CHAIR: Thank you very much, Mr Farrar. Would Mr Parmeter or Mr Gaszner like to make any comments?
Mr Gaszner : I would like to make three very quick points in support of the propositions made by my colleague. I will not repeat any of them. I will pick up on what Professor Legg said when he referred to two of the pillars of support advanced by the Attorney-General's Department for these fees and their significant increase—that is, the concept of pricing signals and unmeritorious cases. With respect, the concept of a pricing signal is a sugar-coated way of saying that if you put the financial barrier high enough people will not come to court, and that is justified by the idea that it is preventing unmeritorious cases from being advanced. There is a fundamental fallacy to that which starts with the fact that nobody has defined what an unmeritorious case might be. I think the Law Council submission demonstrates that there are many quite meritorious cases which, when they encounter this barrier, are not brought to court. They are easy to identify but an unmeritorious case is not.
That said, what evidence is there to support the idea that there is a vast bulk of unmeritorious cases, let alone that they are contributing in any significant way to the cost of providing the courts that are now subject to these significant fee rises? And what evidence is there that the courts are not disposing efficiently in any event, as they always have? Bear in mind that in most areas of the court's jurisdiction there is a loser-pays indemnity for costs, which weighs heavily on the shoulders of the party that loses. It certainly cannot be the case that a party who loses in court or fails to make good their claim is a person who has advanced an unmeritorious case. The case may of course be quite meritorious but it is decided, according to law, that one party loses. The other point is that the risk of this is that, as the Law Council's submission indicated, there are a number of litigants who are now facing the perplexing question of whether they can raise the cost of entering the door of the court. They have to make that difficult choice.
One of the things that is clearly a problem for the courts and it clearly contributes to the cost of maintaining the courts and providing the services is the number of unrepresented litigants. That is a vexed problem for the court. There is plenty of evidence to indicate that an unrepresented litigant, with all the extra care that must be taken by the court and the difficulties of assisting an unrepresented litigant to unfold a case in a way that perhaps an experienced practitioner might do in a fraction of the time, contributes significantly to the cost of the court system. In terms of some of the people that Mr Emmerig, for example, has talked about, and they are the smaller corporations—although they are not necessarily those that fall into the category that rates as a private individual—there will be a difficult choice to be made as to the cost of accessing the court and being resourced to be able to pay daily hearing fees and so on versus the cost of obtaining competent representation. I am not suggesting that the fees are so high that it might always be or will frequently be a real barrier, but it is certainly a real deliberation. The last thing that the Federal Court system and particularly the Federal Circuit Court system needs is an increase in unrepresented litigants, because that is one thing that will definitely increase the cost of providing the services of those courts.
A final very quick point is that the Law Council's paper also makes it clear, and I think Mr Emmerig touched on it briefly, that a lot of what seems to underpin the Attorney-General's response and indeed the philosophy generally in this area is the idea that we are talking about interparty's litigation in situations where people are claiming damages. Again, the Law Council's paper, I think, brings out very strongly that there are a vast number of other areas of the court's jurisdiction where that is not the case. They include, of course, bankruptcy, insolvency, migration, fair work and other areas of jurisdiction in respect of which citizens are bringing important public matters, very often, to the court and now have to face having this extraordinary burden of the cost of entering the door.
CHAIR: Thank you for that. Mr Parmeter, did you have anything? I am conscious that I want to leave time for questions.
Mr Parmeter : I have nothing further.
CHAIR: Thank you, Mr Parmeter.
Senator CROSSIN: Good morning. I want to explore whether the Law Council is involved in the setting of these court fees or whether it is just something that is done in negotiation between the courts and the department and whether practitioners or experts like the Law Council have any input into this at all.
Mr Emmerig : I think Mr Parmeter would be best placed to speak to that point.
Mr Parmeter : I guess the simple answer is that the Law Council and the profession is not involved in setting fees. In relation to the most significant recent fee increases in 2010 and in January 2013 the Law Council was not consulted in relation to the 2010 increases and, I believe, neither were the courts, but I think the department would need to confirm whether or not that is the case. In relation to the 2013 increases the Law Council was consulted in the course of an inquiry or a review, which was carried out by the Attorney-General's Department in June and July 2011, but the Law Council's input into that was limited to its commentary on the impact of the 2010 fee increases. We were not invited to provide submissions or input into the design of the changes which were introduced in January 2013.
Senator CROSSIN: In your submission, if I am correct, from about the 50th paragraph you cite numerous examples of where you believe the fees are either too large or there is an anomaly in the way in which they are applied. Are the ones you cite the most obscure or that you think are impractical?
Mr Parmeter : I do not think the examples that have been raised in paragraph 50 of our submission are obscure. I think they are probably some of the most important, but we have really raised them by way of example. For example, the increase in the divorce fee was cited and raised by members of the Law Council's family law section as a particularly important issue. There are concerns about the fees in relation to conciliation conferences. In relation to our general comment on the fee increases across the board, basically, if you take the fee increases in 2010 and 2013 together we regarded the size of the fee increases over that period to be quite extraordinary. In many cases the fees have doubled and in some cases they have tripled. I would say we have really raised these points by way of example, but our more general point remains that if you take into account the period over which those fees were raised and the size of the fee increases we think that the fee increases were excessive and probably unjustified.
Senator CROSSIN: What is the way around this then? Is there a need to set up some sort of independent tribunal that would make an assessment here or should the department consult experts in the field rather than just have arbitrary increases? Unless we try and find a solution to provide some justification for how fees are handled, I am not sure we are going to find a way through this dilemma here where some anomalies have been highlighted to us and there is some unfairness. This morning we had witnesses who said they thought the process about applying for court fees vis-a-vis pro bono work needed to be reviewed. What is the solution here from the Law Council's point of view?
Mr Parmeter : We gave this some consideration before coming to speak to the committee today. I will hand over to Mr Emmerig, who might be able to outline some of the thoughts that we had.
Mr Emmerig : Before doing that I might add another part of the answer to the question you first asked about consultation. I observed that in the Attorney-General's submission to the committee it says on page 9 that 'the federal courts were closely consulted in the development of the fees package', which is the 2013 fees package. It does not, of course, say that the Federal Court agreed with the changes that were proposed. I just put that there for completeness; it is also relevant to the answer to your second question.
It seems to us that it is very important that people who have a relevant perspective to this issue are involved in some form of effective and transparent consultation process when the fees are adjusted. Without wishing to be exhaustive, one could imagine that those people would include: the Law Council, because of the large number of lawyers that are involved in these matters; the Federal Court; associations linked with pro bono work; legal aid; and Family Court specialists who work in that particular discipline. And there may be a need for some other experts who deal with other areas such as immigration, insolvency and so on; maybe they could be caught by other bodies. But I do consider that there does need to be a wide pool of people who need to be involved in the process and it has got to be a lot more transparent than it is right now.
One of our key planks in our submission is that there does not seem to be any rational or evidential basis for the quantification of the increases. That is of concern to us. We do recognise the need for fees for reasons we discuss and which the Attorney-General's Department states, which is that there does need to be some level of entry point to add the appropriate safeguards and focus and to avoid frivolous and vexatious use of the important facilities.
Senator CROSSIN: Some witnesses this morning put to us that when they are doing some pro bono work they still have to go through the paperwork and the processes in the court for an exemption for fees. They thought that that process itself should be reviewed and that if someone fronts up to the court and they are being represented on a pro bono basis then perhaps the court fees should be automatically waived, rather than all that paperwork being filled out and all the process gone through and an exemption usually being granted at the end of the day anyway. Do you have a comment about that and are there any other process problems that you think need to be reviewed?
Mr Emmerig : The Law Council has a very strong commitment towards supporting pro bono efforts. Anything that can simplify that process for the pro bono provider and also for the court would be welcome. Mr Farrar may want to talk to this as well, but I should indicate that one of the impressive and encouraging things I have seen, in particular in the last decade, in legal practice in this country is the increase in attention by the profession to pro bono work. It is a momentum that needs to be supported. Anything that makes it simpler and more efficient would be very, very welcome.
Mr Farrar : It is one thing to take on board a matter knowing you will not be paid for it. We all do it, and we do it for a variety of reasons. Sometimes it is done systematically through a pro bono policy of the individual firm. Sometimes it is done on an ad hoc basis because a person with a problem clearly cannot afford legal assistance or to pay you but needs your help. I guess that at any given time I might have half a dozen clients who fit that category. It is one thing to give my time and that of my firm for nothing; it is another thing to be charged money for filing an application. The legal system in many ways works on an honour system. If I say to a public official, 'I am not charging my client for this,' one would have thought that should be sufficient for them to accept that the filing fee should be waived.
We do a certain amount of legal aid work, and I have been the President of the Legal Aid Commission. I have worked in legal aid. I have been involved in legal aid issues for the last 30-plus years. One of the main gripes of the legal profession about legal aid and legal assistance schemes is the red tape you have to go through for very little money. Many people are happier to do the work for nothing than to have to deal with the red tape involved in the legal assistance schemes that we operate in. So a waiver of filing fees in a simplified manner would be very welcome.
Mr Emmerig : There is no doubt that there are some current protections, and they are valuable for people who need that pro bono assistance—those who are the very least well able to look after themselves or do not have the resources to do so. Encouraging more would be very welcome. It is also important to recognise that that threshold is very low. One of our key planks in our submission is that the impact of the filing fees really kicks in very close to that margin with low-income people and then extends substantially through the system from that point onwards. That is a big issue. Where you draw the boundary in pro bono is very much a matter for personal judgement when it done by a law firm as opposed to being a legally aided arrangement, where different criteria apply. But it really is something to be encouraged, and simplicity of process would be extremely welcome.
Senator CROSSIN: That is all I have.
Senator HUMPHRIES: I have just a couple of questions. You say in paragraph 24 of your submission:
The new flat fees introduced to replace the previous system of fee waivers and exemptions had created a significant administrative cost burden for each of the federal courts and, in many cases, impeded the provision of justice …
That arises out of the review of the 2010 filing fee charges that was done by the Attorney-General's Department, I think. Can you just explain what you mean and what the finding of that review was in that respect. How did the introduction of flat fees cause an increase in the administrative cost burden of the federal courts?
Mr Emmerig : Yes, happily. In fact, it may be better for Mr Gaszner or Mr Parmeter to address that directly. David, perhaps you are the best person.
Mr Gaszner : Yes. Nick, do you want to say something first?
Mr Parmeter : I think I could not say anything that would not be better expressed by you, David, but I will just indicate that what we meant by that, in terms of the impact, was that the finding of that inquiry as we understood it, including from seeing the submissions of the federal courts to that inquiry, was that there was a significant cost burden associated with the removal of fee waivers and exemptions, and that cost burden effectively had to be borne by each of the courts. There was, I suppose, significant disquiet about that. I will hand over to David, who might be able to elaborate on that.
Mr Gaszner : It is difficult to say much more than that. That is the information that we had from the courts—that effectively the burden of administering this was greater than any benefit that might have been derived. That is in an environment in which the courts, of course, are under enormous pressure to produce efficiency dividends. They, of course, have only a couple of areas in which they can apply those dividends—they have buildings, people and technology—and it was a curious irony that they had to introduce administrative systems that involved more time, people and shuffling of paper in order to administer that system. Beyond that, I do not think we can say much more than is captured in the submission itself.
Mr Emmerig : If it is convenient to the committee we could provide perhaps a supplementary response.
Senator HUMPHRIES: We can play it through here. I was just hoping you could summarise it for me. The other point made in the submission concerns forum shopping: people moving out of the federal court to a state court that is cheaper. To what extent is that an issue? There would not be many matters where you would have a mutual jurisdiction between the two levels of courts, would there?
Mr Emmerig : With respect, I would say there are a very substantial number of matters where you do actually have the opportunity to go federally or to the state courts. They do so often in relation to commercial matters—insolvencies and so on. Very rarely is a commercial matter litigated in this country that does not involve the option to go between the jurisdictions. One of the points made in the submission in relation to forum shopping is that federal court fees are raised, then there is a movement towards the state courts, then the state courts' fees are raised to either meet parity or to deter from state courts back to federal courts, and we start this rather unvirtuous cycle of fee increases, which compounds the problem of access to justice. We do not think it is an appropriate response to have the fees operate to push people into other jurisdictions on affordability grounds. We think that is a problem. That is essentially one of the forum shopping things. But, yes, there is actually a large opportunity to move between courts, or, more accurately, to choose between courts.
Mr Farrar : Having read the submission from my friends in the Federal Court sphere, it occurs to me that the local courts of the states and territories retain family law jurisdiction under the Family Law Act, albeit, since the Federal Circuit Court, formerly the Federal Magistrates Court, was established, it is pretty much a dead letter. But I am going to check the legislation, because I believe that anything other than a divorce, I think, can be filed in the state magistrates courts, as you, Senator Humphreys, would probably recall doing in a past life.
Senator HUMPHRIES: Indeed.
Mr Farrar : I do not know what the filing fees are there, but I am sure they are quite significantly less, if they exist at all.
Senator HUMPHRIES: I am sure they are.
CHAIR: Given the implications of the movement of matters to state jurisdictions, I am not sure whether we have invited state jurisdictions to have any input into the inquiry we did, but it might be something about which we hear more from them.
We are out of time, but I have one more question. The submission highlights various anomalies—an apparent lack of some kind of rational approach to why these particular fees have been raised. One example you give is the introduction of a higher filing fee of $500 for applications that involve both children and property matters. You make the very succinct point that it is unclear how charging a higher fee for matters involving children could in any way be justified by justice policy considerations. What do you mean by that? What are the implications of that kind of fee increase?
Mr Farrar : I suppose the philosophy behind charging anything significant, other than a token fee, perhaps, is hard to glean, if it is not a money-making exercise. If it is a money-making exercise the processing of an application involving parenting and financial matters, as distinct from one only of those two, is no greater. In other words, the work behind the scenes in the registry or in the court is not enhanced by the fact that additional orders are sought in regard to children. So one wonders what the philosophy behind it is, if it is not simply to make more money out of it.
CHAIR: Do you see any concerning implications of that? Is there a risk that that would deter applications involving property, for instance?
Mr Farrar : Yes, it is. In relation to children, there is particular relevance to the fact that whilst, as I said earlier, there is a mandatory ADR before filing, many parenting applications commence in situations of urgency—something has happened that requires one or other party to have the legal status of primary custodian or whatever we want to call it. If you seek an interim order you have to pay an additional filing fee on top of the filing fee for the initiating application. I think it is another $300, but I could stand corrected about that. It is in the schedule attached to our document.
The additional expense is on top of the filing fee, so straight away you are looking $305 plus another $150-something. If your original application includes financial matters—'One may as well put the whole box and dice before the courts,' is quite often the attitude—then you are over $600 just to pay to start the thing rolling so that you can have your child returned from holidays when the other parent refused to return them. Those sorts of situations are fairly common.
For people whose primary motivation is to maintain a proper parenting arrangement for their children the financial impost is quite debilitating. Most of them cannot afford it.
CHAIR: We will leave it there because we have run out of time but I thank you very much for your very thorough submission in this.
Proceedings suspended from 11:06 to 11:17