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    Legal Correspondence and Family Law Matters

    Jan 28, 2022 11:37:40 AM

    Solicitors are not employed to act as ‘postman’ to vent the anger and vitriol of their clients.

    This oft used quote is from the judgment of Benjamin J in the matter of Simic v Norton [2017] FamCA 1007 (‘Simic’). In this matter, the parties’ legal fees including disbursements totalled an “eye watering” $860,000. The Judge examined the vast volume of legal correspondence between the parties which contributed to the high legal fees and noted:

    Some of those letters were inflammatory and reflected the anger of the parties or one or other of them. The letters were at times accusatory. They were often verbose and at times involved unnecessary tit for tat commentary. Some of the letters served little or no forensic purposes.

    The Judge commented on the duty of practitioners to “ensure that correspondence and communication is necessary, balanced, considered and relevant”, to minimise legal costs and to reduce conflict between the parties. Benjamin J further noted that such high legal costs reduces the value of the overall property pool and also directly affects the ability of the parties to provide for the children.

    The Judge referred the matter to the Legal Services Commission of NSW to investigate whether the costing and approaches taken by both solicitors could constitute professional misconduct or unsatisfactory professional conduct.

    Solicitors have been known to hand this short judgment of only 5 pages to overzealous clients to read in response to their instructions to draft voluminous and inflammatory correspondence.

    The new Family Court and Federal Circuit Court of Australia Rules 2021 (Cth) (‘the Rules’) codify the matters raised in Simic in relation to costs and correspondence, placing obligations on both parties and their legal representatives. Whilst similar provisions could be found in the old rules, the Court has warned that compliance with the new rules and the required pre-action procedures will be heavily monitored.

    The overarching purpose of the Rules is “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”: R1.04(1).

    In relation to correspondence particularly, Schedule 1 of the Rules details that parties must have regard to “the need to avoid protracted, unnecessary, hostile and inflammatory exchanges” and “the impact of correspondence on the intended reader (in particular, on the parties)”. They also must not “raise irrelevant issues or issues that may cause the other party to adopt and entrenched, polarised or hostile position”.

    Family Law matters can be highly stressful and emotional for the parties. Clients should be advised of their obligations under the Rules, in respect of their own individual communications with the other party, and their instructions as to legal correspondence.

    Voluminous, verbose and vehement correspondence will add “‘fuel to the fire’ of conflict rather than dampen it down”, thereby increasing costs and delays. The effect of the correspondence on the other party must also be considered. Given the high rates of family violence alleged in parenting matters and the prevalence of mental health issues among litigants, abusive terms and “gaslighting” language could exacerbate these issues.

    It is important to keep in mind that under the Rules, parties must have regard to the best interests of the child in both parenting and property proceedings. Children may be the unintended recipients of correspondence between the parties, and communications denigrating a parent are not appropriate for children’s ears. High legal costs fuelled by correspondence will also diminish the asset pool and have an impact on the parents’ ability to support and care for the children.

    Parties and solicitors who fail to heed their obligations under the Rules regarding correspondence and communication may suffer serious consequences such as costs penalties. Perhaps it is prudent to consider the intended reader of the correspondence, as not just the other party, but the Judge as well.

    If you have further questions please contact us at info@franklaw.com.au. 

    This is not legal advice. 

    Topics: Family Law Court

    Karen Barber

    Written by Karen Barber