Each day, our office receives countless individual questions relating to child custody or the family court process. Among the most common question asked by parties is How much does a custody battle cost in Australia? It is not surprising why this question is so commonly asked given how long child custody or parenting proceedings can last.
We have all heard horror stories from a distant friend or relative who has warned against entering into the Family Court process given the exorbitant amount of legal costs that will follow.
While it is true that litigation can continue for a number of months, or potentially years, there is no reason why litigation cannot be finalised in an efficient and cost-effective manner.
This article will answer the question ‘How much does a custody battle cost in Australia?‘ by providing an analysis of both the litigation and pre-litigation methods of dispute resolution, and further consider how you can save tens of thousands in legal fees.
What are the potential costs?
There is nothing more frustrating to a Family Lawyer then a client who calls for advice, and proceeds to ask ‘how much does a custody battle cost in Australia?‘ prior to any discussion about the particulars of their matter.
The answer to this question is ‘how long is a piece of string?‘.
What is the parenting matter that is being discussed? If you and your former partner have agreed on an informal parenting arrangement and merely seek to formalise this arrangement by entering into Court Orders, the matter could theoretically be wrapped up by the end of the week.
This kind of matter may require the drafting of one or two letters, review of a draft agreement, and an email to the Court for the agreement to be filed. The costs in this scenario are unlikely to cost more than a few hundred dollars.
By contrast, if you and your partner have no agreement and no willingness/capacity to enter into negotiations, costs are likely to be significantly greater.
The costs associated with sending letter after letter after letter to explain why your child must wear green socks on Mondays and Red socks on Tuesdays is likely to increase the duration and fees expended in your matter.
So in seeking to answer the question of ‘how much does a custody battle cost in Australia?‘, it is first necessary to clarify what exactly is being disputed.
What are the issues in dispute?
The second consideration in determining ‘how much does a custody battle cost in Australia?’ is in relation to the number and significance of the issues in dispute.
Parenting Agreements can be very, very lengthy documents. They can cover everything from living arrangements, changeover locations, holiday time, telephone communication to who the child may have contact with, names that the child may be referred to, and what games and music a child my play or listen to.
As a rule of thumb, the fewer the number of issues in dispute, the cheaper your matter will be to run.
That is not to say that you should abandon certain issues for the purposes of savings costs. Rather, you should seek to prioritise the important issues which must be covered in a binding agreement and potentially ignore the issues which can be resolved informally between the parties.
Another strategy is to seek that any agreed issues, or issues where the parties are not far apart, be resolved at the earliest possible occasion.
There are likely to be numerous letters exchanged in relation to the care arrangement and holiday time. While this does require greater attention during negotiations, less complex issues may be resolved in a only a few sentences in the initial letters exchanged between the parties.
Nothing makes me happier than recieving an initial letter from an opposing solicitor which begins with the sentence: ‘the following issues are agreed between the parties…‘.
Any minor issues which are not agreed at the start of litigation should be addressed and resolved at an early stage. This may include the location for changeover to take place, the days in which the children speak to each parent via telephone, and the manner in which direct communication between the parties should take place.
Resolving less complex issues at an early stage will allow the parties to focus their attention on resolving the issues that are more likely to be disputed between the parties. By limiting discussion to the major issues in dispute, you will undoubtedly save significant costs in your matter.
Accordingly, in answering ‘How much does a custody battle cost in Australia?‘ it is important to first clarify and simplify the issues being disputed between the parties.
Where is the dispute being heard?
Child custody battles generally take place in two separated phases. This being the pre-litigation phase, and the subsequent litigation phase.
To answer to the question of ‘How much does a custody battle cost in Australia?‘ will very much depend on the forum in which the dispute is being heard.
Without question, the most expensive way to resolve your matter will be throught the litigation or Court process. This process indicates to a Judge of the Court that you and your partner have been unable to resolve the dispute outside of the Court and therefore require the matter to be determined with reference to the formalities of the Court process.
Forget everything you have seen on television. A Judge does not simply turn up at a hearing, hear two sides of a story and make a final decision before lunch time. Rather, the Court process takes months and months of preparation.
This means that you will have to prepare and file a number of extensive documents, including a parenting questionnaire and affidavit. In addition, your affidavit will likely contain a large volume of evidence and annexure material. You will also further be expected to prepare a number of different affidavits throughout your matter to address the changes that have occurred as the matter progresses. You may further be required to prepare and file affidavits on behalf of witnesses and experts.
The costs involved in preparing a matter for a contest hearing is not cheap.
The Court aims to hear the majority of matters within 12 months from the date that they are filed. That is the majority of matters. There are others which will continue for significantly longer than this period and can remain in the Court system for years without any sign of being ready for a Final Hearing.
Should your matter proceed for 2-3 years, the answer to the question ‘How much does a custody battle cost in Australia?‘ is simply, more than you can afford.
The goal of all litigants (regardless if Court proceedings have been commenced or not) should be to resolve the matter as quickly as possible by way of amicable agreement. Where this is not possible, the parties should aim to progress the matter to judicial determination in an efficient and cost-effective manner.
Mediation or Dispute Resolution:
The overwhelming majority of matters do not proceed to a final hearing. Even those that are filed in Court are most likely to be resolved by way of Consent Orders or at Mediation prior to any final hearing.
Mediation allows parties to retain greater control over the resolution of their matter. It becomes possible to draft, review, and re-draft proposed terms of settlement which are make both parties happy. By contrast, at a final hearing, the Court may ulimtately make its own decision with little consideration to the preferences of the parties themselves.
Mediation generally occurs over half a day (3-4 hours) to a full day (7-8 hours). Although the costs may seem significant for a full-day Mediation, they are unquestionably much lower than the costs associated with the preparation and attendance at a final hearing.
It is for this reason that our office always seeks to exhaust all opportunities to resolve a matter by way of legal correspondence or attendance at Mediation. The costs for a successful resolution at Mediation are incomparable to the costs associated with litigation.
Conclusion – How to Reduce Legal Costs
If you are reading this article, chances are that you are already on the right path to reduce your legal costs simply by virtue of the personal research and enquiry already being undertaken by you.
Ultimately, there is only so much that you can do to reduce your legal fees. If your former partner wishes to engage in an endless custody battle where voluminous legal correspondence is exchanged between the parties, then there is little you can do but play the game while doing your best to resolve important issues while ignoring those which do not require great attention.
Accordingly, the first step to reducing your legal fees is to limit the issues in dispute to only matters of sufficient importance. Similarly, where certain issues cannot be ignored but are not overly complex in nature, you should aim to have them resolved at the earliest possible occasion.
Next, try to exhaust any Mediation or dispute resolution opportunities prior to filing in Court. Even if this is not initially possible, once proceedings are commenced, you should continuously welcome any opportunity to attend a Mediation conference for the purposes of finalising the matter without requiring the final determination of a Judge.
Finally, manage your thoughts and affairs in a comprehensive and logical manner. It is not uncommon for fees to increase greatly simply because a matter requires repeated telephone calls across between you and your lawyer. Rather, it may be beneficial to document all of your questions or thoughts and have them discussed in one single telephone call or email compared to multiple separate calls/emails.
Despite years of experience resolving parenting and child custody disputes for countless clients, I still have no clear answer to the question ‘How much does a custody battle cost in Australia?‘. Simply because there is no clear answer.
The question of costs to run a matter will depend on the individual circumstances of your matter and the degree of agreement or disagreement between yourself and your former partner.
Although there might not be a straightfoward answer to how much does a child custody battle cost in Australia, there are a number of answers to the question of how you can reduce the costs associated with a child custody battle.
By following the tips addressed in this article, you are guaranteed to significantly reduce the amount you will spend throughout your matter while ensuring that you reach the overall goals that you hope to achieve.
Do you have any other tips to save costs in a child custody battle? Write them below.