Why do lawyers charge such exorbitant amounts in family law matters?
It’s a compelling question and one I get asked quite a bit.
With present day fees for even the most junior of lawyers starting at around $300 per hour and senior lawyers and partners charging amounts north of $500-600 dollars plus, it can be a financially crippling experience retaining any family lawyer.

And family law cases very often involve at least one party that is vulnerable both emotionally and financially, so the decision to use a lawyer is one that a client makes only because they need expertise and a speedy resolution …so they can avoid being left penniless.

However, penniless is often what hirers of lawyers become.
Going into debt and selling assets to keep large legal bills in check seems to be a regular occurrence and clients are always faced with the prospect of a lawyer bailing out if their gargantuan fees aren’t met.

Even though lawyers seldom share the mystery behind the high fees, they might try to explain those fees to you something like this…
Well, I sacrificed a great deal and did a lot of training to get to the position I am in today as an experienced family lawyer. Some may even use the title “accredited family law specialist” when speaking of such “experience”, even though that simply means a lawyer who’s been around for a while and sat for a short 3 hour accreditation test. (Sorry I had put the length of the test in as one newly minted specialist wasn’t happy with me referring to 3 hours as “short”. Go figure!) 

They might also put their fees down to their on-going requirement to attend costly continual professional development; their indemnity insurance (in case you sue them) and the renewal costs relating to their memberships and practicing certificates.

Additionally, when you walk into that lovely office with the friendly receptionist, the helpful paralegal and the shiny buttoned Chesterfield sofas, you can imagine that too adds to the price point!

But the hourly fee never includes all the “extras” that end up on your toilet roll length invoice. These often include the filing fees, the stationary costs, the postage, and the one that gives me a real laugh- the $4 a page photocopying. And don’t forget every cost, including the lawyers fee, attracts the 10% GST.

So is the product or service that you get worth the cost?

I truly believe in about 30% of matters, where there is a real complexity, difficult negotiations or large property settlements, it is.
As one commentator noted, when you sign a retainer agreement with your lawyer, you are assigning your worries and problems to them – so that you can go home, spend some time with your family and sleep peacefully in the knowledge that your lawyer has in fact ‘got this’.

Meanwhile, that really good lawyer is busting their ass stressing about your deadlines; completing all that tricky paperwork; writing your highly impressive affidavit with all your evidence neatly laid out the way the court requires it; dealing with your uncomfortable phone calls; and doing that negotiating on your behalf so your matter can be resolved.

And when your matter is highly complex and you’re out of your depth, they are worth every penny.

What about the other 70% of cases that I hear about day in day out? These are the people who often turn to me when their lawyer has not done much, or convinced them to fight a losing battle rather than negotiate, or been a poor communicator; or even worse, left them high and dry once the bills can’t be paid.
I have lost count of the people who have a poor impression of these members of my fraternity.

So what’s the best way to avoid the sky high fees? 


The two solutions that come to mind are: 
Fixed fee agreements
or… the most cost effective way-
Self representing with document/drafting assistance and court coaching like we do at The Legal Eagle.

Fixed fee agreements

These agreements mean you don’t have to worry about essentially signing a blank cheque for your lawyer to rack up billable hours. These types of agreements would generally be available for work such as preparing leases and legal wills, conveyancing and divorce applications.
There are various kinds of fixed fee arrangements, including where the client pays a lump sum up front, ‘staged’ payments at various points and ‘capped’ fees where there’s a guaranteed maximum total price for the whole case.
Lewis-Dermody recommends opting for a fixed fee agreement wherever possible, as lawyers can be under pressure from their employer to inflate clients’ bills due to the internal performance targets they’ve been set.
Self Representing
Most people have tremendous capacity to self represent with the right background help and assistance. It can be a little intimidating turning up to court but if all your documents and applications have been prepared by an experienced legal drafter you will feel pretty confident in court. You see getting the docs right is the key because these often relate to what you want from the court (your application and orders) and the evidence (your affidavit) you have to back that application up.
Good legal drafters also tend to be experienced lawyers, yet don’t charge nearly as much as a full service lawyer because they are not officially retained by a client to do court work and give extensive advice.
Finally, there are those cowboy (and girl) lawyers who offer deals that say “no win, no fee”. Seriously Eaglets, avoid these ones like the plague. They are only interested in sure wins and if you do reach their easy win criteria (and they resolve your matter) you will pay such a high percentage fee that they will be laughing all the way to the bank with YOUR settlement money.

Gosh… that’s a nice Chesterfield sofa! $$$$$$

Good solutions
If you need assistance and want to self represent, let us help you.
We take a genuine interest in the outcome you need… and our rates are very reasonable.
Our lawyer Mark has been helping self representers with their documents for over 6 years.
You can make a FREE appointment HERE or drop our wonderful lead paralegal Abbey a line – abbey@TheLegalEagle.com.au

There are so many unsolved mysteries that continue to baffle and bewilder humankind. Who was Jack the Ripper? Where is the lost city of Atlantis? Why was Stonehenge created? Oh and a favourite of mine, who framed Roger Rabbit? However, there is no more perplexing and exasperating mystery to unravel than…What exactly are the “best interests” of the child.

If you’ve been there, and I assume many of you have, you will time and time again hear lawyers, family consultants and Judges all espouse the same tired old mantra. The problem is that experience has taught me there is no real practical way to interpret what those best interests are.

As a consequence of this, much uncertainty prevails. But one thing is for certain and that is the “best interests” principle is to this day used to affect a wide variety of preferences about children’s custody. The fallout in applying this vague expression without clarity or consistency means that one parent often gets the sharp end of the stick. I can assure you these parents are often left gobsmacked by the court’s decisions.

How do you decipher what it means? 
Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself. Should a judge primarily be concerned with the child’s happiness? Or with the child’s spiritual and religious training? Or with their health? Or education? Or with the amount of interruption travel between parents may cause? So much to consider by Judges, all with different styles and opinions, often results in “dog’s breakfast” rulings and orders.

So what does the Family Law Act (FLA) say about “best interests”? Surely the legislation can point parents, lawyers and Judges in the right direction.
Well we know that the FLA requires the court to regard the best interests of the child as the paramount consideration when making parenting orders. And section 60CC of the FLA states that the primary considerations are the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

With regard to violence, the FLA also states that greater weight is given to keeping a child away from violence than having good co-parenting. The problem here is that there are often allegations made in affidavits by both mums and dads against each other in regards to physical and psychological violence towards the children. Deciphering these allegations causes much delay in working out what best parenting outcomes would be. In saying that, I am not against the court taking time to investigate but I am against allegations being used as a tactic by one party, with little evidence to back it up.

Real meaningful relationships involve both parents
So where there isn’t issues with violence, the court should be clear. A “meaningful” relationship with both of the parents should involve, where possible, co-parenting in the true meaning of the word. To be even clearer, where it is possible and circumstances permit, children should be spending considerable amounts of time with each parent every week.

Now some of you are saying, hang on that’s just not physically possible. I hear you, but children adapt to and like routine in their lives and if you both can negotiate a way to ensure reasonable time is spend with the non- primary carer parent by giving them overnights and part (and occasional full) weekends you will have a parenting plan with little opening for complaint. And if you both live near each other splitting weeks can also be doable with good planning and a routine. Children in most cases want to see both their parents, if they are denied that they face emotional health issues and the other parent faces ostracisation and most probably emotional health issues as well.

Additional ingredients and the child’s voice
The FLA, just to confuse parents even more, then lists all the additional considerations the court can (not must) take into consideration. Of these, the ones I feel are most important are a child’s right to express their views on parenting, with greater weight obviously being given to a teenager’s point of view than a 3 year old. For years I have advocated the child’s voice being heard and not through some report a family consultant does after a 20 minute observation session. I mean seriously, children are more articulate today than when I was as a kid. If you’ve got a 6 year old you know what I mean. In their own unique way they can express themselves very clearly. How we move forward in getting a proper forum for children to do this is another conversation.
The other additional consideration I really think is important as a best interests of the child factor is ensuring that child has contact with their extended family. So much love on offer here and from mostly partisan relatives who don’t carry the grudge factor parents sometimes have with each other.

Naturally, there are a lot of other well meaning additional considerations but they are additional and often overcrowd and turn into a mystery what those core “best interests of the children” should be about.
What we really need for simplicities sake is an agenda centred around great co-parenting and the preservation of contact with a child’s extended family. People may not stay as couples forever, but their children deserve a family for life.

If you are interested in my feelings on dodgy child consultants and ICLs click HERE

And for ideas on the “perfect parenting plan” click HERE.

At The Legal Eagle we have lots of free resources in family law please come and visit our very popular site.

DO YOU NEED HELP?
We also provide low cost assistance to self representers and people who have had enough of sky high legal bills.
You can make a free appointment to find out more HERE.

One of the most heart wrenching events a parent can face is the failure of an ex to return a child back to the parent the child lives with. This parent is known as “the primary carer”.
Whether it’s an hour late from an agreed exchange time, a day visit that turns into a weekend or in the worst cases, a child who is taken overseas and never returned, there is nothing more upsetting that not knowing where your child is and whether they are safe. To me, unless there are prevailing circumstances in these matters that deal with abuse, it is nothing more than modern day kidnapping.

The adage that possession is nine tenths of the law can be applied in a round about way to circumvent these upsetting events. If you are the primary carer, you must be very watchful of that possession and responsibility you have been granted by the courts. And by “watchful” I will give you another well known saying… if you give someone an inch they will take a mile.

KEEP PROPER RECORDS
So as the primary carer, you must be rigorous from day one in terms of policing the orders that the court have given regarding shared parenting. If the parent receiving access does not abide by the orders and starts to stretch their access beyond what is allowed you need to immediately communicate with that parent that it is not on. You do this by putting your disproval in writing by email or letter. Try not to send an sms as the other methods are more official and I feel carry more weight if there comes a time when you need to up the ante in a court. Keep any breach by the other parent in a diary or log book that also backs up your correspondence. If they have a lawyer, write to them as well about the breach explaining exactly what happened and that repeat offences are not acceptable.

The reason why you need to do this should be obvious. Court orders about parenting come about from a long and often expensive process and they are written with the child’s best interests in the foreground. If you are the primary carer, you owe nothing to your ex to “cut them some slack” when they take an extra hour or day to return the child. The same can be said to parents who tamper with the other parents access rights.

And when you get into the habit of doing this, the other party will take that mile and leave you with an anything goes situation with the shared parenting. Both of you had an opportunity prior to going to court to work out a less formal and more flexible agreement with parenting, but once you have orders that moment has passed.
Cut no slack!

I say you need to be quick to enforce orders not for possessive reasons but for reasons relating to the children. Children like and need ROUTINE and court orders provide the template for that routine which cannot be changed. Changing a child’s daily routine and timetable is disorientating and can affect their normal social and school schedules.
Beyond their parents, kids have friends to interact with, school work to do, sports and hobbies they enjoy. So while they may not mind spending extra time with one of you… there will be a price to pay somewhere else.

RECOVERY ORDERS

Where the situation has gotten out of hand and a child has not been returned, there are remedies you can seek and have applied by the court to the offending parent. Again, with these things you should not allow too much time to pass if your own attempts to find out where your child is have amounted to nothing.
With recovery orders there are different processes for applying for this order. Primarily, it depends on whether you have a current parenting order or a parenting case pending in the Court.
If there are no parenting orders in place you will need to file an initiating application seeking parenting orders at the same time as applying for a recovery order. You will also need an affidavit providing the evidence to support your application. If you need help with these applications The Legal Eagle can assist at a much lower cost than a “full service” lawyer.

It’s important to remember that the Court is not a child recovery agency. If the Court makes an order authorising or directing another person to find, recover and deliver the child, you must give a copy of the order to that person. In most instances, this will be the Australian Federal Police (AFP).
The “recovery” can come in many forms.
For example, the Court may make an order which allows or requires a person to return the child to you at a designated time and place but when it’s clearly more serious the court can make an order to authorise or direct police officers, to take appropriate action to find, recover and return a child.
Additionally, a recovery order can in some cases provide directions about the day-to-day care of a child until the child is returned or delivered.
These orders can also prohibit the person from again removing or taking possession of the child. In such cases, the order can even authorise the arrest (without warrant) of the person who again removes or takes possession of the child.

CHILD STILL NOT FOUND?

In some situations, you may ask the Court to issue other orders to help locate the child; for example:
♦ A Location Order – if a parent breaches a parenting order and cannot be found, a court may make a location order. A location order requires a person or government agency to provide the court with information about a child’s location.

For example, Commonwealth information orders are a type of location order. This allows access to all sorts of records to find a child from taxation, medicare to school enrolments.

♦ A Publication Order – allows the media to publish details and photographs of the missing child and the person they are believed to be with. However, each case is different and the terms of the publication order can vary.
This orders is usually a last resort.

And don’t forget that when the child is returned to you, you must notify registry staff at the Court as soon as practicable.

OVERSEAS ABDUCTION

Parents wanting to move overseas have a responsibility to consult with the other parent and seek consent to move. If the parent is agreeable, arrangements can be made for the child to see that parent as agreed between them. If the other parent does not agree then the relocation cannot occur and a court order must be obtained from the court to allow the move.
Relocation cases, whether in Australia or for overseas, are difficult because the court recognises the importance of allowing both parents to have an active role in the raising of the child but acknowledges that parents should have the freedom to move around and get on with their lives either to form new families or take up new job opportunities.
In determining a relocation application, a Judge will consider various matters, including the current relationship the child has with each parent.
Presuming the child has a loving, close relationship with both parents, to alter those arrangements and allow the child to move away will significantly affect the ability of the parent with whom the child does not live to maintain the relationship.
And that ain’t fair for either the the parent affected or the child.
We have had a number of cases recently where parents have left the country and not returned with the children. It is a nightmare for the parent who is abandoned and a difficult process to get recovery as you are dealing with third party countries.
These parents have often been hoodwinked into allowing travel and signing travel agreements and handing over passports to the offending parent. Again, possession becomes nine tenths of the law. My solution ALWAYS travel as a family unit and don’t sign dodgy travel agreements with the other parent.
If suspicious about one parents future travel plans with the child, put the child on a watch list (see below).
If one parent has flown the coup and you are concerned about your child’s welfare and safety, report the matter to your local police immediately.
Contact the Australian Federal Police for advice on placing your child’s name on the Family Law Watchlist. Your child may not have yet left Australia and it may be possible to prevent them being removed from Australia.
Seek legal advice. You will need a court order to place your child on the Family Law Watchlist. Obtaining recovery orders for your child may also be of assistance.

If your child has been taken to a country that is a member of the Hague Convention on the Civil Aspects of International Child Abduction, the Australian Central Authority may be able to assist you. For a list of member countries, visit the Hague Convention on the Civil Aspects of International Child Abduction page.
If your child has been taken to a country that is not a member of the Hague Convention, you may be able to get assistance from the Consular Branch of the Department of Foreign Affairs and Trade. The service operates 24 hours a day and can be contacted on 1300 555 135.
Here’s some addition information about international parental abduction:
https://www.ag.gov.au/FamiliesAndMarriage/Families/InternationalFamilyLaw/Pages/InternationalParentalChildAbduction.aspx

No-one should have to go through the loss of a child by devious means and that requires you to play your part by being diligent with how the child’s time is spent with the other parent.
If your getting a raw deal from the primary carer which is different to your orders you need to put this in writing to the other parent.
If you have no deal you need to make an application to the court.
And if your child has been “kidnapped” you need to notify police immediately and also seek the help of the court.
Don’t forget we are here to help you if you need assistance with your applications and documents.
Visit our APPOINTMENTS page for further info.