In the recent past, there has been ongoing controversy and debate about the fees being charged by family lawyers.
One newspaper report has suggested that the government is likely to ban reservation fees (referred to in the article as "cancellation fees" or "disappointment fees") that are charged by some barristers – as part of reforms to the family law system next year.
In a 2017 judgment in Simic & Norton  FamCA 1007, Family Court judge Robert Benjamin was scathing in his criticism of fees charged by solicitors for each party and referred both of them to the Office of the Legal Services Commissioner.
What are the current prevalent rates of charging?
The fees charged by barristers are generally commensurate with their length of experience and level of expertise.
By convention, barristers are grouped into four broad categories.
Upon being admitted as a barrister, they must "read" for a period of twelve months under a more senior barrister – referred to as a tutor.
A barrister in this category is referred to as a reader . There may be restrictions on what work a reader can do.
Readers charge in the vicinity of $2,000 a day in family law matters.
Junior counsel are those barristers with two to five years' experience. Juniors commonly charge between $2,500 to $4,000 a day.
A senior junior barrister is counsel with more than five years' experience as a barrister.
Rates for senior junior barristers start at about $4,000 day.
Queen's Counsel and Senior Counsel
Queen's Counsel (QC) and Senior Counsel (SC) are colloquially referred to as "silks." This is because their robes include a gown made of silk whereas the gown of other barristers is of cotton.
Silks are those barristers who are recognised by the Bar Association as being outstanding advocates and legal advisers.
There is no difference between QCs and SCs. After 1992, the Bar Association decided to change the designation of all new appointments to Senior Counsel from Queen's Counsel.
Family law silks currently charge in the vicinity of $9,000 to $13,000 per day.
Which barrister should I choose?
Ordinary Mums and Dads cannot afford a $13,000 a day silk. However, if their case goes to a final hearing, they will need a specialist advocate – with sufficient skill, knowledge and experience – to represent them.
Some examples of where a more experienced barrister may be crucial in a case include:
- The credibility of witnesses is central to determining the outcome of the case. In such cases, counsel accomplished in the art of cross-examination is essential.
- The case involves complex legal issues such as trusts, equitable interests in property, indeterminate business interests or disputed overseas property.
- Presenting or challenging complex expert evidence.
- The case may turn on the admission or rejection of particularly significant evidence.
At Opal Legal , we regularly brief barristers in hearings and appeals after providing the client with a range of options based on their affordability and the nature of the case.
When can a barrister charge reservation fees?
In their joint submission to the Senate Legal and Constitutional Affairs Legislation Committee, the Law Council of Australia and the NSW Bar Association, explained the rationale for reservation fees:
A barrister is not entitled to charge a "reservation fee" unless it is covered by the fee disclosure and costs agreement with the client. Reservation fees are not charged by all barristers and are intended to promote the administration of justice by ensuring Counsel set aside sufficient time to exclusively prepare for and appear in the client's case, for the duration of the client's matter.
Settlements late in the piece are not uncommon and are actively encouraged by barristers where appropriate to best promote clients' interests. If a barrister is able to obtain further work for the remainder of the unused days, the barrister will not charge for that period. If, however, the barrister is not able to obtain alternative work, the commercial opportunity to generate fees which would otherwise have been generated has been lost. Reservation fees therefore seek to promote access to justice by offering improved certainty and comfort to clients that a barrister will be exclusively available to them for the duration of the matter, while providing greater certainty for self-employed practitioners.
What did Justice Benjamin say?
Simic & Norton was a family law case involving property and child custody. An independent children's lawyer also intervened in the proceedings.
The case finally settled on the seventh day of the hearing. By that time, the husband and wife had incurred a total of about $860,000 in legal costs between them. Justice Benjamin described the quantum as, "outrageous levels of costs for ordinary people involved in family law proceedings".
His Honour also observed:
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. 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.
Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.
So concerned was Justice Benjamin with the amount of costs incurred in that case, that he took the unusual step of referring the solicitors for both parties to the NSW Legal Services Commissioner to ask him to investigate and consider whether the conduct of the solicitors, in terms of their fees and approach, could amount to professional misconduct or unsatisfactory professional conduct.
What does the future hold?
A Joint Select Committee on Australia's Family Law System was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019.
On 5 December 2019, the Federal Government introduced legislation to reform the federal family law courts. Under the legislation, the Family Court of Australia and the Federal Circuit Court of Australia is to be merged into a Federal Circuit and Family Court of Australia (FCFC). The FCFC will comprise two divisions: the FCFC (Division 1) will be the current Family Court, and the FCFC (Division 2) will be the current Federal Circuit Court.
In a joint statement on 23 October 2020, the Law Council of Australia, Women's Legal Services Australia, Community Legal Centres Australia and the National Aboriginal and Torres Strait Islander Legal Services called on the Parliament to abandon this bill.
On the other hand, in November 2020, a Senate committee gave its support for the government's bill to merge the family courts.
Meanwhile, the Joint Select Committee will not present its final report by 7 October 2020, as scheduled. On 31 August 2020, both Houses of Parliament agreed to extend the reporting date to the 25 February 2021.
2021 will be a crucial year for changes to family law. It is likely that significant changes to the family law system will be implemented next year. What final form those changes will take is still unsettled.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.