How Much Do Family Law Matters Cost?
G’day I’m Stephen Page from Page Provan, Family and Fertility Lawyers. Now, you’ll see a lot of stuff on a lot of videos on the website about me talking about fertility law, and you may think, oh, that’s all I do, no, no no, I’ve been doing family law since 1985. I got admitted in ’87, but 1985 when I got out of uni, lo and behold, I’m launching the family law and I’ve been there ever since, and it’s something I love doing.
I love helping people resolve their fights, get on with their lives about money and their kids, and one thing that comes up that just eats away every time without fail is how much it costs. So one of the things that’s happened, and I just want to talk about today is about costs. Most of the time, there won’t be a cost order against you or the other party in family law.
Now, that’s not an absolute rule. I certainly have obtained cost orders. In a parenting matter, 10 years ago, I got a cost order of $200,000 against the wife when I acted for the husband, and a few years before that, I got an order for, I think, about $150,000 against a husband in property proceedings and parenting proceedings, and obtained other cost orders, of course.
But these were big ones and in circumstances where most of the time they aren’t made. Because cost orders under the Family law act are made as a matter of discretion, and the usual rule is each party bears their own costs. Sometimes when matters are delayed, the court will order the party to cause the delay to meet the costs.
Sometimes if offers are made, particularly in property matters, and the other side rejects the offer, and lo and behold, the first party gets a better deal than they put in their offer, they will get a cost order.
I remember some years ago, I had a matter where the other side brought an application which I just thought was silly, and on we trundled about property settlement, where I thought that what the husband was seeking to do, which is to set aside an earlier order made for property settlement.
Because there’d been a minor procedural defect by the lawyer concerned, not me, I might add, but by that lawyer. Therefore, he thought, I can go to the court and ask for something, he was asking for less than he already got.
Well, that was pretty silly, wasn’t it? That’s how I took it, and I pointed this out to his lawyers repeatedly in the matter and what did they do? Kept trundling on. Well, no surprise that the court made a significant cost order in favour of my client, and she got her money. Family lawyers have obligations to clients to tell you about how your matters going, and these obligations arise in two ways.
The first is under the legislation that governs client agreements, or sometimes called cost agreements, between lawyers and their clients, so solicitors and their clients, we must make disclosure. We must tell you how much, in a meaningful way, this matter is going to cost and it’s an estimate.
We can’t be precise in most cases, but the intent is to give it a red hot go so that if you’re burning your cash, you have an idea about how much you’re burning on the way through, and then can make a decision about is this value for money? And how does that amount that I’m spending add up to what my entitlement might be on property settlement?
A late colleague said many years ago that when he gave clients advice about the range between something small and something big that they might be entitled to on property settlement, his clients always remembered the maximum amount they were going to get, not the minimum, and when he told his clients about the range of costs from minimum to maximum, lo and behold, they always remembered the minimum cost, not the maximum.
So maximum entitlement, remembered, and minimum cost, remembered. You’ve got to factor the two together. But there is this obligation to make a full and frank disclosure by lawyers to clients and to keep clients updated. What’s happened, though, is that many solicitors haven’t done that.
They just haven’t, and so what then happened is that what is now the Federal Circuit and Family Court of Australia has taken matters into its own hands, and what it said is that in addition to the obligations of lawyers under state laws, we’re going to impose an obligation under this federal law.
So that at every step of the proceedings, two business days before you have this occasion in court, whether it’s a directions hearing or it’s a family dispute resolution or it’s a reconciliation conference or it’s an interim hearing, or it’s a final hearing, or whatever it is, the lawyer has to advise us to cost.
Now, there’s an exception, the exception is if it’s legal aid. If you’re legally aided, then it gets done at the trial, but not beforehand.But everyone else has to set out how much you’ve incurred, how much it’s likely to be until conclusion, and the point of doing that is so that you know and you can make an informed decision.
What happens with this notice? Not only is it given to the client, but it’s given to the court and to the other parties. So if there’s one other party, it goes to that one other party. If there’s two, it goes to both, and then what happens? Well, when I see the notice from the other side, I go, oh, that’s how much they’ve spent.
Typically, they’ll have spent more, sometimes they’ll have spent less. But I have an idea, and the more that’s spent, typically you think, the higher the chance of settlement. Because if you’re spending that kind of money, you’d rather spend that in compromise with your ex than payment of lawyers.
Some of my colleagues have said that in cases they’ve had, for every dollar that they’ve estimated to their clients as to how much they’ve incurred, the other side have estimated three, so three to one spend. It’s illuminating to see this stuff. But more importantly, if you are in the midst of this, you can follow this through and keep informed.
So you’re not in the dark, you can make informed decisions, including to settle. Recently, I was asked by television Education Network to talk about this issue and it’s about the cost being the weapon of choice before the courts. I spoke at the conference, I prepared a paper, and the paper is on my website, stephenpage.com.au, as well as on the Page Provan website.
Go and have a read of it, it sets all this out in much greater length, I’m afraid to say, than what I’ve said here. As part of the preparation for that paper, I spoke to a registrar, a Division 1 judge, and a Division 2 judge, and they told me how matters were going.
One of the things that struck me in talking to those judges was that when lawyers talk about property settlement matters and give these notices, we must set out the source of funds of the client to pay for those costs. Sadly, that is often honoured in the breach, presumably because clients don’t tell their lawyers what funds they’re using. So have a look at the paper. It’s easy to find.
Good luck. Be careful about how you manage your costs.