Family fee guidelines

Application of the stage of matter model for solicitors in Commonwealth matters

1.1 – If there is a change of solicitor, the model applies as if there were no change of solicitor and payments will be made on a pro-rata basis for work completed for each stage.

1.2 – If a legally aided client loses contact with the solicitor, payment for the work completed will be on a pro rata basis to be negotiated with Legal Aid NSW.

1.3 – If contact is re-established, funding already provided will be taken into account when considering any further funding.

1.4 – The hearing length of a trial will be estimated taking into account the estimate given by the court.

1.5 – If a matter is listed for hearing (final or otherwise) and not reached by the court on the date set, additional funding must be negotiated.

1.6 – Court attendance includes waiting time and appearance in court but excludes travel time.

1.7 – The fee for taking judgment is payable if the judgment is listed on a separate day.

Definitions in cost management

In this guideline:

• a family law or child support matter includes any dispute that involves the same parties about the same or substantially the same issue, if there has not been a material change in circumstances or if any such change would not materially affect existing orders
• costs cap means the costs limitations on a grant of legal aid as set out in this guideline at 2.1
• costs of a matter means the total costs paid by Legal Aid NSW in a family law or child support matter in which legal aid has been, less any contributions collected by Legal Aid NSW from the legally aided person and any costs recovered by Legal Aid NSW.

The costs management principles in this guideline apply to all grants of aid made by Legal Aid NSW for Commonwealth family law matters.

2.1 Limit on costs

Under a grant of legal aid, payment of the costs of a matter under the Legal Aid NSW usual fee scales for a party in a family law or child support matter, regardless of whether legal aid in the matter is provided in-house by Legal Aid NSW or by an external service provider, is limited to $15,000.

The limit on costs does not apply to grants of aid to independent children's lawyers.

Interpreter and translator fees and rural travel and accommodation are not included in the costs of a matter for the purposes of the costs cap.

2.2 If costs likely to exceed limit

Legal Aid NSW may increase the costs cap for a particular grant of aid if, in its opinion, undue hardship would otherwise be caused to an applicant for aid taking into account the following

• whether the applicant for aid has incurred significant additional costs due to a special circumstance
• whether it would be unreasonable to expect the applicant to adequately represent himself or herself due to a special circumstance
• whether the costs of the applicant have increased significantly through no fault of the applicant
• the number and complexity of issues in dispute
• the likelihood of risk to a child's safety or welfare.

Before making a decision under this guideline Legal Aid NSW must have considered whether it is possible to contain costs by

• providing legal assistance for the matter in-house, or
• considering whether alternative means of funding are appropriate, including negotiating a fee package that is not in accordance with the Legal Aid NSW usual fee scales with an external services provider.

2.3 Increasing the cost cap

Any decision made by Legal Aid NSW to increase the costs cap for a particular grant of aid should be subject to strict limits on costs, and the nature and extent of the additional cost should be determined by Legal Aid NSW or agreed between Legal Aid NSW and the external service provider having regard to the following factors

• advice from the court and the parties about the estimated length of time required for the hearing of the matter
• the number and nature of witnesses who must be called or cross-examined, and
• whether the other parties to the matter have legal representation.

2.4 Costs in recovery order and location order matters

Legal Aid NSW should treat proceedings for a recovery, location and/or Commonwealth information order relating to the location and/or recovery of a child as a new matter for the purposes of family law costs management.

A grant of aid for recovery, location or a Commonwealth information order

• should usually be limited to $2000, and
• should only be made on the condition that the applicant for aid seeks a costs order against the respondent to the court application, unless that party is also in receipt of a grant of legal aid.

2.5 Costs recovery in parentage testing cases

A client receiving a grant of legal aid for parentage testing must seek an order from the court for the costs of the testing, unless the other party to the proceedings is also receiving legal aid.

2.6 Costs capping and recovery in enforcement proceedings

A grant of aid under for enforcement proceedings

• should usually be limited to $2000, and
• should only be made on the condition that the applicant seeks a costs order against the respondent to the court application, unless that party is also in receipt of a grant of legal aid.

2.7 Costs recovery in property settlement matters

If the applicant is represented in a property dispute matter (in combination with another family law matter) Legal Aid NSW will seek full recovery of costs as determined under s 46 of the Act. In the event the applicant retains the real property the debt is to be secured by means of a charge over the property and a caveat lodged.

2.8 Costs in appeal matters

Legal Aid NSW must take the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) into account before granting aid for an appeal.

Legal Aid NSW should treat an appeal as a new matter for the purposes of family law costs management.

3.1 – An additional hour (up to 5 hours in total) is available where there are exceptional circumstances that extend the mediation time. Exceptional circumstances include:

• where a party is Aboriginal
• where a party has a cognitive impairment
• where a party requires an interpreter, or
• where there are more than three parties to the proceedings.

4.1 – Where a hearing concludes on the first day then only the "first day" fee will be paid.

4.2 – Where the hearing concludes early but on a subsequent day, the fee will be calculated on a "first day" and then "subsequent day" basis paid up to and including the date of conclusion.

4.3 – Funding will not be approved to brief Counsel in interim hearings.

4.4 – Funding will not be approved to brief Counsel in a local court except in particularly complex or exceptional cases.

4.5 – Funding will not be approved to brief Counsel for hearings that do not exceed one day.

4.6 – Funding will not be approved to brief Counsel by an independent children's lawyer unless the hearing time exceeds one day and the matter raises complex issues of fact or law or there are other exceptional circumstances.

7.1 – Legal aid is generally not available to fund court-ordered drug testing in family law matters.

7.2 – Legal Aid NSW will only consider funding for court-ordered drug tests where:

• the subject of the drug test order is a legally aided party in a parenting matter, and
• the report will materially affect the outcome of the matter and is the only risk factor in consideration, and
• the report is necessary to finalise the matter, and
• where an Independent Children’s Lawyer is involved, they support the need for a one-off drug test.

8.1 – Where an in-house Solicitor Advocate is briefed by an in-house solicitor in family law court proceedings, the fee that applies is counsel’s fee.

8.2 – Where an in-house solicitor is claiming notional fees for the Solicitor Advocate, they should be claimed at counsel fee rates.

1. Lump sum fees – establishment and placement phase

The lump sum fee includes but is not limited to all

·       preparation time, including drafting and reading court documents, including subpoena material

·       court time (including mentions and one interim application), and

·       conferences with the client and witnesses.

1.2  Payment of additional fees for the establishment and placement phase

The payment of fees in addition to the standard lump sum fee for establishment and placement phase will only be paid in exceptional circumstances.

Legal Aid NSW may be satisfied there are exceptional circumstances in matters where:

1.2.1       The Crown Solicitor’s Office is briefed

1.2.2       The proceedings are on foot for longer than 18 months without being listed for final hearing, or

1.2.3       There is a contested establishment hearing

1.2.4       After the filing of care plans, the Secretary’s position changes and/or orders are sought by DCJ that are materially different to those in the Care Plan

1.2.5       There are more than five parties, excluding DCJ, or

1.2.6       The client experiences significant difficulties in communicating with their lawyer and participating in the proceedings due to any of the following:

• Intellectual disability (supported by evidence of a formal diagnosis)
• Physical disability
• Receiving services as an inpatient at a mental health facility (voluntarily or involuntarily) or being subject to a Community Treatment Order, or
• Illiteracy.

Note: When considering whether there are exceptional circumstances under guideline 1.2.6, lawyers are required to identify the evidence of a significant difficulty and make short submissions as to how this difficulty materially or substantially impacts the client’s ability to communicate with them and/or participate in the proceedings. Examples include:

• A client has a significant difficulty in communicating with their lawyer due to an intellectual disability and can only participate in conferences/proceedings with the assistance of a support person who attends all client appointments and Court appearances to support the client’s participation
• A client cannot read or write, and the lawyer must read all documents to the client
• Due to a physical disability, a lawyer must travel to meet with the client at their home to facilitate their engagement in the proceedings.

Note: Legal Aid NSW may consider other exceptional circumstances on a case-by-case basis.

What is not considered exceptional circumstances?

Exceptional circumstances would not include:

• Any work of an administrative, secretarial or clerical nature, or
• Any costs or time related to the administration of the grant of legal aid.

2.  Lump sum fees for preparation for final hearing

The fee for preparation for the final hearing includes but is not limited to all:

·       preparation time

·       drafting and perusing evidence, including subpoena material

·       briefing counsel

·       conferences with the client and witnesses.

2.1 Payment of additional fees for preparation for final hearing

The payment of fees in addition to the standard preparation fee for final hearing will only be paid in exceptional circumstances.

Exceptional circumstances must be considered in the context of care matters listed for final hearing.

Legal Aid NSW may be satisfied there are exceptional circumstances in matters where:

2.1.1       The Crown Solicitor’s Office is briefed

2.1.2       Competing expert/s (not including the Court Clinician) are required to give evidence at the final hearing, or matters involving complex forensic or medical evidence including matters where the key issue in dispute relates to an unexplained injury suffered by a child the subject of or connected to the proceedings

2.1.3       An independent legal representative has significant concerns about the final orders proposed by the Department of Community and Justice (DCJ), and that are agreed to by all the other parties

2.1.4       After the filing of care plans, the Secretary’s position changes and/or orders are sought by DCJ that are materially different to those in the Care Plan, or

2.1.5       There are more than five parties, excluding DCJ.

Note: Legal Aid NSW may consider other exceptional circumstances on a case-by-case basis.

What is not considered exceptional circumstances?

Exception circumstances would not include:

·       A final hearing listed urgently or at short notice

·       Adjournment of the final hearing

·       Any costs or time related to the administration of the grant of legal aid, or

·       Work of an administrative, secretarial or clerical nature.

3.      Briefing counsel in the Children’s Court

Legal Aid NSW will only approve funding for counsel if satisfied the matter is complex.

Legal Aid NSW may consider that a matter is complex in the Children’s Court where:

• It raises novel issues of law, or complex issues of fact
• It is listed for final hearing for 5 days or more
• It involves an expert/s giving evidence at the final hearing, or
• The Crown Solicitors Office is briefed.

4.     Solicitor Advocate Fee Rate

The solicitor advocate rate will only be paid in care and protection matters where:

• It is a matter that has or would be approved funding for counsel in accordance with Guideline 3, and
• The solicitor has been unable to secure counsel to appear at the final hearing, or
• The solicitor with carriage of the matter is willing and has the requisite expertise to appear as solicitor advocate at the final hearing.

Note: If approved, solicitor advocate rate will be paid instead of (not in addition to) the standard fee for solicitor attendance at the final hearing.

Legal Aid NSW will approve funding in addition to the standard lump sum fee for the establishment/placement stage, where a matter is listed before the Conversations List at the Children’s Court in Dubbo.