Most people embroiled in family law disputes want to settle matters out of court, and with good reason.
Court proceedings for family law disputes are notoriously long, complex, time-consuming and extremely stressful. And more often than not, very costly.
It probably comes as no surprise that by far the biggest cost in family law disputes – second only to the emotional impact on the family – is the fees that family lawyers charge their clients. And sometimes these costs are high enough to make even the law profession itself shudder.
Recently, a Tasmanian judge who was seconded to hear a family law case in Sydney described the total costs of this particular case as ‘eye-watering’. The husband had spent $530,000 and the wife $330,000.
Understandably, the costs of the proceedings had taken a terrible toll on the wealth of the parties and their ability to provide for their children.
The judge was highly critical of the lawyers for both parties. As a consequence, he referred the case to the Legal Services Commission to investigate whether the lawyers should be disciplined for unprofessional behaviour.
He observed that there seems to be a culture in Sydney of a bitter, aggressive and adversarial approach amongst lawyers. While acknowledging that of course as professionals, lawyers are entitled to charge properly for their work, he remarked that too often they take a belligerent, win-at-all-costs approach, conceding little or nothing to the other side. As a result, their clients, the separating or divorcing couple, are often distressed, anxious, angry and emotional.
It’s the family lawyer’s duty and obligation to encourage a reasonable response that resolves matters.”
“In family law disputes, it’s the family lawyer’s duty and obligation to encourage a reasonable response that resolves matters, rather than promotes conflict”, he said. Lawyers should be trying to minimise costs as well as conflict.
The judge’s comments are a warning to all family lawyers.
The Family Law court system is in crisis. Delays and costs are rising exponentially. The Government has instituted a major enquiry by the Law Reform Commission to review the whole Family Law system.
In the Parramatta courts, there is even a planned trial of a ‘lawyer-free’ tribunal to hear parenting matters. The future participation of family lawyers in the system is under review.
But to be fair, these comments certainly don’t apply to all lawyers.
Most family lawyers try hard to meet the expectations of the court, their clients and the community. Typically, they promote sensible resolutions and equitable responses for a reasonable fee.
In the great majority of cases, their involvement has a positive impact and helps bring about a satisfactory outcome. But if such an outcome is looking unlikely, clients should seek a second opinion and consider changing lawyers or taking other options, such as an out-of-court settlement, which is often cheaper, less stressful, and may have a better result.
Courts should be a last resort; not an invitation to a free-for-all litigation experience at the expense of the clients.
Good family lawyers stick to what they know is best: protecting vulnerable parties and children and trying to bring about the best outcome for separated families.
*Andrew Corish is an Accredited Specialist in Family Law with Corish & Co Specialist Family Lawyers North Sydney. He is trained in Family Dispute Resolution.