lawyers are required to keep their clients informed about costs associated with their case.
The Family Court has devised a Scale of Costs which itemizes what lawyers are allowed to charge.
A lawyer has to provide in writing the client an explanation of how costs are calculated. This should include an estimate of costs and how party/party costs might be applicable and if the services of an additional lawyer are required. If an expert witness is required this should be included in the costing.
It is possible that there might be additional fees which are not included in the Family Court’s Scale of Costs. The lawyer will need to draw up a Costs Agreement with the client to account for these additional costs.
The client must be provided with the Family Court’s brochure called ‘Costs Notice
This article includes the rights, duties and responsibilities of the lawyer and the client including all costs associated with the provision of a lawyer’s service. What a lawyer can charge for party / party costs is included too, as well as the process for disputing an account.
If a lawyer receives an offer to settle once a property case has commenced the lawyer must immediately inform his or her client of the actual costs that have both been paid and are currently owed up to the receipt of the offer to settle and an estimate of remaining costs to finish. The client then is in the situation of properly considering the offer to settle.
When a court event is about to take place the client must be provided in writing a notice of the actual costs which have been both paid and are still owing including the amount for the court event, an estimation of any future costs which should include any other future court events. This written notice should be presented to the other party’s representative
The Family Court Act section 117(1) identifies that each party is responsible for the payment of their costs. However, the Court has the power to make costs order if the circumstances justify masking such an order. Section 118 of the Act indicates the circumstances when a costs order might be made.
A party who is seeking costs must inform the person from whom they are seeking costs from and the Court is required to give each person a reasonable chance to be heard when it comes to the costs application. Costs orders can be lodged at any time throughout the proceedings.
Solicitor / Client Costs
After 1 July 2008, The Family Court will not regulate solicitor/ client costs, for fresh applications after 1 July 2008. Costs Agreement and other issues about the payment of solicitor to client costs will be monitored by the state/ territory regulatory body.
For any cases that have been lodged before 1 July 2008, the Family Court will still continue to regulate the solicitor/ client costs, unless a client retains the services of a new solicitor after 1 July 2008 or in situations where the solicitor and client reach an agreement that the Rules that deal with the regulating of costs should not be applicable any longer to their specific financial relationship.
The provisions laid down for the calculating of costs for cases before 1 July 2008 can now be found in Schedule 6 of the 2004 Family Law Rules. The procedure as outlined by the Family Court for handling Solicitor/ client disputes over costs are as follows:
- The client asks for a bill of costs that has to be itemized and the solicitor must meet the request.
- The client lodges the “Notice Disputing Itemised Costs Account” Family Court form.
- A Settlement Conference is arranged
- An Assessment hearing if required takes place
Costs – The Federal Circuit Court of Australia
The Federal Circuit Court of Australia Rules 2001, Part 21, handles cost issues in the Federal Magistrates Court. It has its set costs which are recorded in Schedule 1 of the Rules.
- On application made by a respondent, the Court could order the applicant to provide some security that the Court considers appropriate for the respondent’s costs of the proceedings: r 21.01(1) FMCR;
- Any party can make an Order for Costs application at any point in a proceeding or before 28 days following a final order, or within any additional time period permitted by the court: r 21.02)(1) FMCR;
- The Court can set the maximum amount that can be recovered on a party/party basis through either an order lodged at the first court date or through an application made by one of the parties: r 21.03(1) FMCR.
- The court can vary the maximum amount specified if, according to the court’s viewpoint, there are particular reasons and it benefits justice by doing so: r 21.03(3) FMCR;
- If the cost of an application, motion or any other proceeding is reserved, the cost reserved will proceed the event unless other orders are made by the court: r 21.04 FMCR;
- If the proceedings end up being transferred from the Family Court to the Federal Magistrates Court or even from the Federal Court and the no order for costs has been made court from where the proceeding has transferred the court can then make an order for any costs which include costs before the transferral took place: r 21.05(2) FMCR;
- The court can lodge an order for costs against the lawyer or any agent or employee if either of them caused costs to another person as a result of any delay, improper conduct or negligence.
- The lawyer may be found to be in default
- If a hearing cannot take place because the lawyer has not attended, or has sent someone else to attend the hearing, or has failed to handle documentation as required including valid evidence which has stopped the hearing proceeding. The lawyer will be given a chance to be heard before an order for costs is made.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.