Do family lawyers deserve their fees?

Thursday, 21 September, 2023

Ever heard anyone tell you they were surprised how little their family lawyer ended up costing them?

No, me neither.

What do we pay for?

Family lawyers have a singular value proposition – they solve family-related legal problems.

We know what they do and we have high expectations that they will be able to do a better job of it than we would ourselves. They are masterful within a system traditionally perceived as highly complex to navigate.

As far back as 2009, George Brandis, then shadow Attorney-General said,

"Unless you are a millionaire or a pauper, the cost of going to court to protect your rights is beyond you.” George Brandis

During his term as Attorney-General, Mr Brandis made several attempts to increase the existing Family Court fees, so I can only assume it is the lawyer’s fee component he was referring to as out of reach for most Australians.

In defence of lawyers

When we sign a letter of engagement with a family lawyer, our problem fundamentally becomes their problem. We expect them to be across all facets that may be relevant to our case, to formulate the appropriate case theory, apply all relevant laws, complete the necessary documentation and in complex matters, to recall past cases and obscure interpretations of the law, so as to sway the outcome in our favour. To date, advancing technology has offered only minimal assistance.

Not only must they do all of this for our matter, but for a number of other clients they are working with concurrently. This requires considerable brain power backed up with years of training and professional experience.

Many would consider the work life of a family lawyer to be stressful. They work long hours, often outside standard business hours, preparing case theories for people who are distressed, possibly at the most emotionally challenging juncture of their life, and who often have unrealistic expectations of what family law will allow.

Surely, we should expect to pay handsomely for this kind of service.

On top of the considerable cost and time it takes to acquire a law degree, law graduates must complete many hours of supervised practical training, often for little remuneration, before they are admitted to practice.

The barriers to entering the market as a practising family lawyer in your own firm are high

A young lawyer wishing to start their own practice and buck the system with more affordable fees is likely to be faced with prohibitively high practice start-up costs; licencing costs, malpractice insurance, business overheads, staffing costs and expenses associated with keeping the sensitive information they collect private and secure.

Family lawyers seldom have the benefit of a client with repeat business, few have marketing flair and the cost of new client acquisition is high. Whilst focussed on attracting new clients, they are taken away from their core purpose of generating fees.

So the time, effort and money it takes to build a constantly evolving client base to sustain business can cripple a new practice.

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These start-up barriers mean newly qualified lawyers, who may have dreamt of starting their own firm and charging affordable rates, find themselves employed and tied to the higher fee structure of larger firms.

With all this in mind, why do we begrudge hard-working family lawyers their fees?

Their quotes are not worth the paper they are written on

In which other industry do you get to quote a fee then end up charging more than three times that amount without batting an eyelid – or, often, without even achieving an outcome?

I regularly have people approaching me through Divorce Resource who have spent their savings on legal fees without getting any closer to resolution.

Here's a recent example:

"I was told it was a simple parenting matter, that I was being extremely reasonable in asking for far less contact than the court would normally permit, the law was in my favour and it should be wrapped up within 6 weeks. I was quoted $3000 in fees and had to pay half up front. After paying over $12,000 I’d achieved absolutely nothing more in terms of contact with my daughter than when I engaged the lawyer. And, it has gone from a “simple parenting matter” to one that now potentially involves child psychologists, family report writers and more appearances in court. The mother has become even more difficult to communicate with about my daughter.”

Some law firms are starting to answer the resistance to their high fees by quoting set price divorces and bundled packages which they seldom adhere to. There are usually ‘unforeseen’ circumstances which are not included in the package price and clients routinely end up paying far more than the expected total. One NSW law firm I spoke with said it was part of their strategy to upsell add-ons from the loss-leader set price packages.

In the case above, it was unforeseen that the mother would not be intimidated by a family lawyer, would opt to take the matter before the court and would choose to defend her position as a litigant in person.

They don’t do discounts

In most other industries, seasonal discounts and loyalty incentives to gain or retain ongoing business are commonplace, yet this is a rarity in law firms. It seems that discounted fees are purely the domain of those few clients eligible for Legal Aid.

Discounting seems to be beneath the rare air of the legal fraternity. This is enabled by a reluctance from clients to elect to go with a lower priced family lawyer. It stands to reason that experience comes at a cost premium and you will pay more for a lawyer who has practised for longer. Sometimes this premium is justified but in many family law matters, it isn’t.

In situations where the actual facts relevant in family law are straightforward but there is emotional tension between the two parties, even an experienced lawyer is unlikely to steer it towards a timeous agreement and a junior lawyer would eventually achieve the same outcome for a significantly lower fee.

They have no interest in your repeat business

Once a family law matter is resolved, or in many cases, the lawyer is disengaged due to a lack of available funds to continue, the business relationship ends and the average family law firm has no interest in retaining you as a source of potential business in the future.

Perhaps it is this that leads to a lack of attention to detail, a willingness to entertain ongoing threads of unnecessary communication and no desire to discount fees or provide loyalty incentives to existing clients.

This may also explain the unacceptably high price at which disbursements are often charged. In the exceptional event that costs are awarded in family matters, the rate of compensation for photocopying is set at 75c per page. Some firms are charging significantly above this amount. By way of comparison, the cost of photocopying at the Family Law Court is only 20c per page.

Misleading ‘advice’

Remember that “simple parenting matter” that escalated to three appearances in court over an eight-month period and accumulated costs of $12000 without achieving any more time with the clients’ daughter than the mother was previously allowing? To progress the matter required the involvement of a child psychiatrist and family report writer at a cost in the vicinity of $10,000.

I doubt if the initial advice had been “this will take the best part of a year and you are unlikely to progress the matter to an outcome without engaging specialists and please be aware costs may run over $20,000,” that the client would have proceeded.

I know, family lawyers are only acting upon the instruction of their client. And , in this case, a distraught father definitely did instruct the lawyer to proceed with the matter. However, experienced family lawyers have seen enough parenting cases to know that this case followed a fairly typical progression of how a large percentage of parenting cases where there is no imminent danger to the child but significant angst exists between the parents. In my opinion, this lawyer should have been advising their client accordingly, and making more of an effort to progress the matter through an accredited mediator rather than proceeding to court.

The $12,000 worth of fees, which effectively achieved zero return on investment, would have gone a long way towards investing in his daughter’s future or creating memories in the time he did have with his daughter. And, perhaps without the antagonism caused by court appearances, the mother would have acquiesced a lot earlier.

Are the clients at the crux of the problem?

Perhaps we are asking, and expecting, too much of family lawyers.

At the beginning of this article, I wrote about a family lawyer's value proposition – they solve family-related legal problems.

This is true and most lawyers work hard to provide a good value service in doing so. However, many of the issues clients are taking to family lawyers with the expectation of resolution are not legal problems.

More often, and particularly in the early stages of separation, they are emotional problems; breakdowns in communications, unmet expectations, compensation sought for hurtful behaviour and resentment, differences in parenting style, an inability of one or both spouses to accept the separation or the confronting realities of co-parenting. Or, financial problems: disagreements over asset valuations, complex tax structures that need to be dismantled, loss of earning capacity, accusations of financial wastage, business activities that have gone awry or disagreement around matters relating to the care and financial support of children.

Before you rush to a family lawyer, you may well be better off to spend some time and money with a professional counsellor addressing your emotional issues and with a finance expert to determine your financial options. In doing so, you will be in a more rational and informed frame of mind coming to the negotiating table. The result is that you will present to a family lawyer as a much better quality of client who is less likely to require as much of their time to resolve your actual legal issues.

The Split Kit and our resource book, "The First Steps through Separation and Divorce" have been specifically designed to help you to prepare yourself during the early stages of separation.

Can you dispute Family Law legal fees?

If you feel your family lawyer has overcharged you, the first step should be to have a frank discussion with them about your concern in an attempt to have the amount reduced. Good luck with that.

There is no point in raising the issue of costs with the Family Court. Private fee arrangements between a lawyer and client, known as solicitor-client costs are not overseen by the court.

If you don’t get a satisfactory result after talking with your lawyer, you will need to contact the law society or institute in your State or Territory who will look into the matter on your behalf.

Can you ask an ex-partner to pay your legal fees?

In family law matters, any party involved in proceedings is responsible for paying their own legal costs.

An obstructive ex-partner, particularly those appearing as a self-litigant, can cost the represented party a huge amount in legal fees as their lawyer responds to reams of correspondence or appears in court only to find the other party unprepared and the case unable to proceed.

Whilst this doesn’t seem fair and it is reasonable for the represented party to feel ripped off and ask to be compensated for the other party’s incompetence, it is only in exceptional cases, the Court may order one party to pay the legal costs. This is known as party-party costs.

A successful application to award costs in family matters is indeed the exception, as borne out in a study conducted by The Law and Justice Foundation of NSW: Applications for costs were made in 18% of cases included in the study with costs awarded in only about 2% of Family Court cases.

Divorce Cost Australia

Published by, Christine Weston
Founding Director and Creator of Divorce Resource

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