Family Court asks Lawyers to consider their fees

19th December 2017

By Pip Walker

Are you thinking of separating? Do you want to ensure common sense prevails through your separation and that legal fees are only incurred where necessary? Are you concerned you will dissipate significant assets just by stepping into a family lawyer’s office?

In a decision handed down in the Family Court on 11 December 2017 the presiding Judge criticised the collective costs incurred by the husband and wife of $860,000 in their parenting and property proceedings labelling them “outrageous”.

Justice Benjamin explained in his decision in Simic & Norton 2017 FamCA (11 December 2017) that he has “observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation” and made specific reference to the responsibility of lawyers acting in these matters to ensure that the action taken by them is a “fair, reasonable, competent and proportional professional service”.

Given that the collective legal fees incurred were close to $1,000,000, His Honour said that in this case, investigation was warranted.

As family lawyers, we work with people who are usually in a situation they do not want to be in or have not foreseen. Separation is out of our client’s control, and clients can find themselves lumped into a complicated process which they are not at all familiar with. Family lawyers are in a unique position to assist people with disputes that could not otherwise resolve because of our particular knowledge, skill set and problem solving abilities. Given the nature of the territory, family lawyers are in a position of responsibility that they must take very seriously.

While family law litigation is sometimes necessary, there are many strategies family lawyers (and their clients) can utilise in order to avoid unnecessarily entering into Court proceedings, or minimising costs once Court has commenced. A couple of the options are the following:

Mediation

Mediation is an opportunity for the parties to discuss options for settlement with the benefit of an independent third party who can both facilitate discussions and provide reality testing for what could happen in that particular case. In specific cases, the parties may agree to an evaluative process whereby the mediator gives an opinion as to the merits of each party’s arguments and potentially a view on the likely outcome.

Ordinarily, the parties each attend a mediation with their respective lawyers. Mediation can be very effective for parties who do not wish to engage with the Court process but have particular important issues that require discussion and legal intervention. For example, the particulars of how property can be divided, mechanics of complicated orders required and or specific needs or requirements that must be considered for the best interests of the parties children to be provided for.

Mediation can occur in “shuttle” form where the parties would prefer not to be in the same room as one another and the mediator simply moves between two rooms and facilitates the conversation.

One mediation session can explore many issues during the allocated time. By contrast if the same issues were only dealt with via legal letters, both parties would incur significant fees and may not reach a result.

The costs of a mediator can be shared equally, or paid by one party or the other.

Roundtable Conference

Roundtable Conferences are a discussion between the parties along with their lawyers.

Roundtable Conferences suit particular matters, one example would be where the parties have a modest asset pool or, where there are defined disputes between the parties that do not necessarily require an independent party to resolve.

One of the benefits of a Roundtable Conference is that it is relatively low cost as the parties do not need to pay the costs of a mediator.

While Mediation and Roundtable Conference are two good examples of ways to minimise legal costs in a family law matter, in some cases, neither of these approaches will be appropriate. The best action for a particular case will always be to determine the strategy having regard to the specific facts, the means and attitudes of the parties and their respective representatives.

Irrespective of how much money is involved in a dispute, people (rightly so) have things they would much rather prioritise spending their money on than legal fees. I am sure the parties in Simic & Norton would happily receive their $860,000 back into their bank accounts.

 

Doolan Wagner Family Lawyers dedicated team works with their clients and undertakes a genuine cost benefit analysis of each possible approach to their matter when providing family law advice. If you wish to reach the best outcome for your particular matter having regard to your budget, we encourage you to contact us to discuss your matter today.

Doolan Wagner Family Lawyers is located in St Leonards on the North Shore of Sydney and are just a short walk from St Leonards Train Station and the Crows Nest shops. Doolan Wagner Family Lawyers service clients all over the Sydney Metropolitan and Northern Beaches areas. Call us today on 94370010 or enquiries@familylawyersdw.com.au 

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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