Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
A Tasmanian Family Court judge has released a damning judgment reprimanding two lawyers from opposing law firms for charging outrageous fees in family law proceedings.
Justice Robert Benjamin is based in Hobart, but for this matter, he was in the Sydney registry of the Family Court where he heard the matter of Simic & Norton in late 2017.
Justice Benjamin began his judgment by stating:
“In the Sydney Registry of the Family Court I have observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation,” he said.
The Family Court judge was clearly frustrated that his concerns were unheard when he had previously expressed his feelings about the litigious culture of Sydney family lawyers.
“Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know.”
The judge went further to state that he had read all of the correspondence between the two lawyers, and that the language used was inflammatory and did nothing to defuse the situation of either party.
Some of the letters served little or no forensic purposes,” he said.
“Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.
The lawyers involved were referred to the Legal Services Commissioner of NSW where an assessment will be made as to whether their actions would fall under professional misconduct.
Breakdown of Costs
The mother spent about $352,744 in legal costs
The mother was able to afford this as earlier on in the proceedings there was an interim order awarding her $265,000 by way of partial property orders.
These funds were the primary source for payment of her legal fees to date.
This means that the mother made a decision to incur further legal fees in order to pay her current and future legal fees.
The father incurred legal costs of about $506,000.
Together, the mother and father will spend close to $860,000 to resolve their dispute.
Family Lawyers have an inherent responsibility to find ways to reduce costs and conflict for their clients.
Lawyers have a duty to the court to act ethically and responsibly at all times, a duty to their clients to advise them in their best interests, and arguably a duty to the children of their clients, who rely on the wealth, assets and support of their parents to provide for them until they are self-sufficient.
The huge burden of the legal costs means that the parties will not be able to pass that wealth or support to their children.
This is contrary to the central mantra of the Family Law Act 1975 – that the court will make decisions based on what is in the best interests of the children.
Power of the Court
The Legal Services Commissioner of New South Wales will conduct a confidential investigation as per section 462 of the Legal Profession Uniform Law (NSW).
S. 462(1) 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 (2).
Justice Benjamin’s referral of both solicitors to the Legal Services Commissioner shows the grave concerns that the court and the judiciary have about the current state of affairs by family law practitioners in Sydney.
The Legal Services Commissioner receives all complaints about legal practitioners in New South Wales.
Upon receiving a complaint, the Legal Services Commissioner oversees the investigation of complaints and assists in resolving the matter.
If the investigation leads the Commissioner to do so, the Commissioner may take disciplinary action against a solicitor or barrister or start proceedings at the NSW Civil and Administrative Tribunal.
Alternatives to Court
Mediation is becoming increasingly a more popular option for parties to resolve their disputes outside of court, avoiding huge legal costs and lengthy delays.
Family Law Mediation is used to assist parties to resolve conflicts about property and children after the breakdown of a relationship.
Lawyer assisted mediation is faster than the Family Court System, with some people managing to finalise their matters within one day.
Click here for more information about Family Law Mediation.