Who Pays for Family Court Costs:
A Complete Legal Guide

Opening a family law matter is stressful enough without wondering whether you’ll be stuck with a legal bill you never saw coming.

Many people assume that whoever “wins” gets their costs paid by the other side, the way it sometimes works in other areas of law. In family law, that assumption is usually wrong, and acting on it can lead to a nasty surprise regardless of how your case turns out.

Understanding when costs may be ordered, and how to avoid them, is essential if you’re involved in family law proceedings, and the Attorney-General’s Department publishes general guidance on how the family law system works alongside the court’s own resources.

What Does the Law Say About Who Pays for Family Court Costs?

The Family Circuit and Family Court of Australia has the power to order one party, both parties, or no party at all to pay legal costs. This means the law doesn’t set a single rule that always decides who pays.

The starting point under the Family Law Act 1975 is that each party bears their own legal costs, including their own lawyer’s fees, filing fees, and other expenses linked to their case. This reflects the court’s intention to promote access to justice and avoid discouraging people from pursuing legitimate claims out of fear of an adverse costs order.

One of the most common misconceptions in family law is that a “successful” party automatically recovers their costs from the other side. That’s simply not how it works here. Costs orders are discretionary, not guaranteed, and even where a party is largely or entirely successful, there’s no automatic entitlement to costs.

How Do Judges Decide Who Pays for Family Court Costs in Australia?

Judges weigh a wide range of factors when deciding whether to depart from the general rule. They consider how each party has behaved during proceedings, whether anyone caused unnecessary delays, and whether a party complied with disclosure obligations and court directions.

If one side refused to take part in settlement talks, ignored court directions, or ran an argument with little merit, this can affect the judge’s decision. The court will also look at the strength of each person’s case, and whether reasonable written settlement offers were made and how they compared to the eventual outcome. Failing to properly disclose financial and non-financial contributions, or hiding assets, is another form of conduct courts take seriously when weighing costs.

Other relevant factors include the financial circumstances of each party, and whether either party is receiving Legal Aid, along with the terms of that assistance. In short, the court looks closely at fairness, reasonableness, and conduct, not simply who came out ahead.

A Real Case That Shows Costs Orders Aren’t Automatic

Tekla & Tekla [2025] FedCFamC1A 245 is a genuinely useful case for understanding how seriously courts take this discretion.

In that matter, the Full Court considered an appeal from a costs order made after a property trial. Although the trial judge had ordered the respondent to pay a significant portion of the appellant’s costs, the Full Court intervened because there was no proper evidentiary foundation for the amount. The court made clear that costs orders must be supported by evidence of the actual work done and the reasonableness of the costs claimed, a global figure or bare assertion isn’t enough, and that even where a party’s conduct is criticised, the court still has to assess costs against recognised principles rather than treating an order as a punishment.

Can Both Parties Share Responsibility for Family Court Costs?

Yes. The court can split responsibility between both parties if each contributed to the length or complexity of the case.

When a judge sees that both people played a role in creating the dispute or dragging it out, they may order both sides to share costs. This recognises that family disputes are often genuinely complicated, sometimes neither side is fully at fault, yet the court still needs to decide how costs will be managed. By dividing responsibility, the court aims to be fair while encouraging both parties to act reasonably going forward.

The Three Different Types of Costs Orders

When the court does order costs, it can do so on different bases, and the difference between them matters enormously to how much you’d actually have to pay or could actually recover.

Party and party costs are the default and most common basis. These are limited by scales set out in the Family Law Rules 2021 and only compensate the necessary or proper costs of the litigation. They almost never cover a party’s full legal fees.

Solicitor and client costs allow recovery of a broader category, costs reasonably incurred and reasonable in amount. This typically results in a higher recovery than party and party costs, but still rarely covers the full bill.

Indemnity costs are the most extensive and serious type of order, covering almost all legal costs incurred except those found unreasonable. These are awarded only in exceptional circumstances, and are not ordered simply because one party lost. The court may consider indemnity costs where a case was commenced or continued without reasonable prospects of success, pursued despite clear legal advice it was unlikely to succeed, run for an ulterior purpose like delay or harassment, or conducted in wilful disregard of established law or known facts.

What Types of Family Court Costs Might You Face?

Costs in a family law matter go well beyond your lawyer’s hourly rate. You may encounter:

• Court filing fees for applications, responses, and hearing or trial listings
• Legal fees for advice, document preparation, negotiations, and court appearances
• Barrister’s fees, if counsel is briefed to represent you at conferences or hearings
• Expert reports, such as family reports in parenting matters, property valuations, or medical and psychological assessments
• Mediation and dispute resolution fees, whether private or through family dispute resolution
• Evidence-related expenses, including subpoenas, transcript fees, and obtaining records

The total amount you end up paying generally depends on how complex your matter is, how long it runs, and whether it settles early or proceeds all the way to a final hearing. Matters involving complex property division, disputes over hidden or undisclosed assets, superannuation splitting, or contested child custody arrangements tend to involve more of these cost categories than a straightforward, uncontested matter resolved through consent orders.

When Costs Are Treated Differently: Contravention of Parenting Orders

There’s one specific area where costs work differently to the general rule. In proceedings alleging a contravention of parenting orders, the court is generally required to order costs against a party found to have seriously breached those orders, unless doing so wouldn’t be in the child’s best interests. This reflects how seriously the court treats non-compliance with existing parenting orders once they’re in place.

How Can a Lawyer Help Reduce Who Pays for Family Court Costs?

A family lawyer can’t control the judge’s decision, but plays a genuinely important role in managing the risk, whether your matter involves property settlement, a de facto relationship, or working out whether spousal maintenance applies to your situation, since costs risk can look different depending on what kind of matter you’re actually running.

A lawyer can help you make realistic choices, avoid pursuing weak claims, and comply properly with court directions and disclosure obligations. They can encourage genuine settlement talks early, which reduces the risk of a drawn-out, expensive hearing, and can help you prepare sensible written offers that may protect your position on costs later, even if the matter doesn’t settle. Getting early legal advice about the realistic strength of your position is one of the single best ways to avoid pursuing an unrealistic claim that drives up costs for everyone involved.

How to Minimise Family Court Costs

While some costs are genuinely unavoidable, how you and the other party approach the dispute has a major impact on the final bill.

You can generally reduce costs by trying mediation or family dispute resolution early, being organised and responsive with disclosure to avoid extra hearings, focusing on the genuinely important issues rather than fighting over every minor point, making and properly considering genuine written offers to settle, and getting early legal advice before positions harden. A cooperative, problem-solving approach usually leads to both lower costs and considerably less stress.

Can You Get Help With Family Court Costs?

If you’re worried about affording the process, several options can ease the pressure.

You may be able to apply for Legal Aid Queensland if you meet their means and merit tests, or use a community legal centre for free or low-cost advice and limited assistance. Some family lawyers also offer limited-scope or “unbundled” legal services, where a lawyer helps with specific tasks, like drafting documents, while you handle other parts yourself, the Queensland Law Society can help you find an accredited family law specialist near you. A reduced or waived filing fee may also be available if you can demonstrate genuine financial hardship to the court.

The Bigger Picture on Family Court Costs

Family disputes are never easy, and cost uncertainty adds real extra stress on top of an already difficult situation. The question of who pays depends on many factors, including behaviour, fairness, and the strength of each person’s case.

While there’s no one-size-fits-all answer, understanding how the court actually approaches costs, and getting advice early on matters like property settlement, de facto separation, spousal maintenance, or a property settlement after a long separation, helps families prepare with far greater confidence. Where domestic violence or financial abuse has affected a matter, this context can also be relevant to how the court weighs conduct and fairness in a costs decision.

Do You Need Support With Family Court Costs?

Are you worried about who pays for family court costs in your situation? At Collective Family Law Group, our dedicated team can provide guidance and support to help you manage the process with clarity.

We understand the pressures that come with family disputes and focus on protecting your interests at every stage. Whether you’re concerned about property, parenting arrangements, separation or divorce, or the possibility of paying another party’s costs, our experienced family lawyers are here to assist you. Contact us today to arrange a confidential consultation and take the next step forward.

This article is general information only and does not constitute legal advice. For guidance specific to your circumstances, speak with a family lawyer.

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