The legal cost surrounding a family law dispute is normally a major consideration for the parties involved. In our experience, parties in family law matters wish to know as soon as possible how much it will all cost. Even before parties consult a solicitor, the prospective legal cost involved is a source of discomfort and worry and parties are sometimes driven to make decisions about their family law matter without consulting their lawyer because of these concerns.
However, parties are entitled to know from their lawyer the likely cost of their case. The Legal Profession Act (ACT) 2006 (“the Act), imposes on lawyers in the Australian Capital Territory definite obligations about disclosure regarding their legal fees and expenses. Similar obligations are imposed on lawyers in New South Wales pursuant to the Legal Profession Uniform Law (NSW) which was recently enacted in July 2015.
The obligation on the part of a lawyer to make such a disclosure is found in Part 3.2 of the Act and is entitled “Costs Disclosure and Assessment”. The lawyer’s obligation goes beyond disclosing his/her hourly rate or the fees for such things as photocopies, facsimiles and other disbursements.
The lawyer must provide to the client an estimate of the likely total legal costs to the conclusion of the case. If that is not reasonably practicable, the lawyer must provide a range of estimates of the total legal costs and an explanation of the major possible variables. (1)
The disclosure must be made in writing before or as soon as possible after the lawyer is retained. (2)
The lawyer’s obligation about costs disclosure is ongoing as the matter progresses. (3) On reasonable request from the client, the lawyer must provide progress reports regarding the costs surrounding the case. (4)
Family Law Court Events
In family law matters, there are clear stages or “court events” and it would normally be reasonably simple for a lawyer to provide to his/her client an estimate of the total cost up to and including the court event. These stages include:
- An early, amicable, agreement including the transaction to formalise the agreement legally. The vast majority of family law matters are resolved before a Court must make a decision: see our article 95% of Family Law matters settle out of court.
- In the event that no agreement is reached and court proceedings must be commenced, the Court requires early in the life of the proceedings that the parties attend a compulsory mediation session.
- Sometimes, at the commencement of Court proceedings, one or both parties seek interim orders as well as final orders. The interim application (5) may be heard on the first event and it will increase the legal cost to each party. In the alternative, as a matter progresses, a party may seek interlocutory orders (6)
- Sometimes, as the matter progresses a party makes an interlocutory application.
- The final hearing.
In our initial interview at elringtons, our family lawyers provide comprehensive advice to our client. (7) Part of the comprehensive advice includes furnishing:
- estimates of the total costs relating to each possible event in their case;
- their rights and our obligations pursuant to the Legal Profession Act (ACT) 2006; and
- all the additional information that our client must know about the costs surrounding their case including our hourly rates, disbursements, invoice conditions etc
- a retainer document that confirms in writing the total estimate of costs for each stage.
Throughout the life of their case, we invite our clients to communicate with us frequently about the up to date work in progress to ensure that the client is at all times making informed decisions including about the costs related to their case.
For more information or to make an appointment to see one of our family law solicitors in either our Canberra or Queanbeyan office, contact: Carlos Turini – Accredited Family Law Specialist
p: 02 6206 1300 | e: firstname.lastname@example.org
(1) Section 269(1) (d) of the Act. See also the Legal Profession Uniform Law (NSW) 2015 at Part 4.3, Division 3.
(2) Section 271 (1) of the Act.
(3) Section 276 of the Act.
(4) Section 278 of the Act.
(5) Examples of interim applications may be for orders to be made pending the final hearing:
a. That a child to live with one parent;
b. that a parent spend time with a child;
c. that one party pay spousal maintenance;
d. that a party be restrained from disposing of matrimonial assets.
(6) Also interim orders pending the final hearing.
(7) See our three separate articles about our first appointment: