If you are thinking of engaging a lawyer, one of the things you will want to know is how much they intend to charge. The Family Law Act has a Schedule that sets the amount that lawyers can charge for various items of work – such as attendance at court, drafting a letter, or reading a document.
Most lawyers who specialise in Family Law charge above what is known as the scale fee. The scale fee can be charged by a young solicitor who has little experience in Family Law. A more experienced specialist lawyer generally has the benefit of their years of experience in Family Law and most regularly attend conferences, webinars or seminars to keep up with developments in the law and/or practice. They have invested many years and the dollars in improving their expertise and they seek to charge a specialist fee in return.
In order for a lawyer to charge above the scale fee, they are required to enter into a costs agreement with their client. The costs agreement must set out the rate at which the lawyer will charge for various items of work. Many costs agreements just specify an hourly rate for the time that the solicitor spends working on the file. When providing you with their costs agreement, the lawyer will also provide you with the following brochures:
- Marriage, Families & Separation;
- The Central Practice Direction;
- Property and/or parenting pre-action brochures;
- Duty of Disclosure; and
- Rule 6.06 (if a property matter).
When providing a costs agreement, the solicitor will generally provide an estimate of fees for the future conduct of the matter. The more complex the proceedings, the more vague will be the estimate of fees – in the sense that it will cover a wide range of possible total fees, as the total time that the solicitor will spend on the matter is hard to predict and is very often dependent on how the other party approaches the matter.
Generally, you will be asked to sign the costs agreement with your solicitor before they start doing any work on your matter. Once you have signed the costs agreement, you will be provided with a signed copy.
Whether you have a costs agreement or not with your lawyer, in proceedings before the Federal Circuit and Family Court, lawyers are required to provide their clients with what is known as a Costs Notice on each occasion that the matter is before the court. A Costs Notice is required to contain certain information, as follows:
- The total costs that have been charged to date by the lawyer
- The total that has been paid to date in relation to the costs charged, including the source of funds for the amount paid
- The total value of work in progress that has been done, but not yet charged for
- The estimate of fees for the next discrete stage of the proceedings (for example, for attendance at a mediation)
- The estimate of fees for completion of the proceedings, if they proceed all the way to final hearing.
A Costs Notice is a good way of keeping track of the amount of legal costs that are being incurred or are likely to be charged for the conduct of the case. Each party in the case is required to serve each other party with a copy of their Costs Notice as well, which can sometimes be a helpful tool in settlement discussions.
You should feel free to ask your solicitor about the costs implications if ever you find yourself in a situation where you have two options moving forward – you should be aware of the cost of each option and your solicitor should be grateful that you recognise that they will charge for the amount of work they do, depending on which option is selected.
Written by
Stephen Rugendyke
Special Counsel
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