Concerns over Obscenely High Legal Costs in Family Law Proceedings in the Sydney Registry of the Family Court of Australia
Simic & Norton [2017] FamCA 1007 (11 December 2017)
The parties in this family law case settled parenting and property proceedings during a seven-day hearing, but the child support issue was not resolved as no notice was given to the Child Support Registrar. The mother had paid $286,000 in legal costs and was estimated to pay an additional $120,000, while the father had incurred $331,765 in legal costs and was estimated to pay $165,000 more. The court found the legal costs to be excessive, and some of the solicitor correspondence included in the exhibits was considered inflammatory and unnecessary.
Facts:
The case involved disputes over parenting arrangements, property adjustment, and a possible child support departure application. The child support matter could not be resolved due to a lack of notice. The parenting issue was settled during the hearing, and the property issue was resolved on the seventh day of the hearing. Both parties had competent counsel, and while the court could not comment on the appropriateness of their fees, each party provided cost statements to the court as required by the Family Law Rules 2004.
The mother had paid $286,000 in legal fees to date, with an estimated further cost of $120,000. She had been advanced $265,000 by way of partial property orders to pay for her legal fees. The father had incurred $331,765 in legal fees and had paid $256,175 towards those fees to date, with an estimated additional cost of $165,000. These costs totaled approximately $860,000, which the court deemed "outrageous" for ordinary people involved in family law proceedings.
During cross-examination, the mother's counsel questioned the appropriateness of some of the letters exchanged between the solicitors. The letters were often inflammatory, accusatory, and involved unnecessary commentary. The father admitted that his solicitor had sent multiple letters to the other party's solicitor on some days.
Applicable law:
Legal Profession Uniform Law (NSW) s 462(1) - provides that a relevant person must not disclose to any other person, whether directly or indirectly, any information obtained in the execution or administration of this Law or the Uniform Rules unless permitted to do so under subsection.
Analysis:
The judge emphasized that solicitors should not act as mere messengers for their clients' anger and should ensure that all communication is necessary, balanced, considered, and relevant. The judge believes that in this case, it is possible that one or both of the solicitors acted unprofessionally and did not provide fair, reasonable, competent, and proportional services to their clients.
The judge notes that the family law courts have received complaints about the high costs of legal proceedings, which can be devastating to the financial circumstances of the parties involved. The judge believes that legal practitioners have a duty to minimize costs and reduce conflict, especially when children are involved. In this case, the parties spent a total of approximately $860,000 in legal costs and disbursements, which has taken a toll on their ability to support and provide for their children.
Conclusion:
The court registrar forwarded documents to the Legal Services Commission of New South Wales, requesting an investigation into whether the solicitors for both the applicant and respondent in a family law case engaged in professional misconduct or unsatisfactory professional conduct. The investigation will consider whether the legal work undertaken was necessary, reasonable, fair and proportionate to the issues at hand, with the court granting access to all documents on the court file.
Case: SIMIC & NORTON [2017] FamCA 1007
Judgment of: Benjamin J
Counsels:
COUNSEL FOR THE APPLICANT: Mr Batey & Ms Beck
SOLICITOR FOR THE APPLICANT: Mr D of X Firm
COUNSEL FOR THE RESPONDENT: Ms Gilles
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M of Y Firm
