Rishika Pai, a lawyer with Watts McCray, has this month answered questions on five recent family law decisions of the Full Court, Family Court and Federal Circuit Court. The decisions included:

  • Camden Pty Ltd v Laue – which dealt with the jurisdiction of the Family Court of Western Australia.
  • Bodilly v Hand – which concerned spouse maintenance payments.
  • Higgins v Higgins – which discussed the issues of “gifts” and “loans” in a property matter.
  • Bond v Child Support Registrar – which considered the treatment of trust distributions in a child support matter.

Rishika also answered questions on the controversial case of Foley & Foley. In that case His Honour Justice Benjamin provided some comments about barristers’ cancellation fees in family law matters.

On barristers Cancellation Fees His Honour said “The nature of cancellation fees is at some levels to charge for time not used, presumably on the basis that the day is lost to the barrister, during which time he or she could undertake another hearing. In this context, I would have little difficulty in barristers charging reasonable and fair fees for preparation work which was actually done; that is entirely reasonable.

However I have grave difficulty in endorsing, as fair and reasonable or proportionate, terms in fee agreements which provide for barristers to be paid for doing nothing.”

His Honour also said “Cancellation fees are likely to be claimed by the most experienced and best regarded of the family law barristers and they in turn are likely to be the busiest of those practitioners. Their work is not all appearance; it inevitably includes advising, conferences, preparation and research. There is little or no reason why these busy barristers cannot apply the time lost on other matters. In terms of fairness it ought not be visited upon often inexperienced litigants as they find their way through the emotional and complex world of family law and relationship breakdown.”

His Honour is not alone in such sentiment and he quoted a number of other judges in his judgment including a decision of Deputy Chief Justice Faulks in K & V when the then Deputy Chief Justice said “In my opinion the practice of charging cancellation fees in family law matters at least is not to be encouraged and I urge individual barristers and the various Bar Associations to review their practices.”

Keep a lookout for Rishika on Television Education Network’s Sound Education Family Law Audio Program which has now been released.

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