Legal costs in family law matters

This fact sheet answers frequently asked questions about legal costs in family law matters in the Federal Circuit and Family Court of Australia (the Court).

Usually, parties who are involved in family law proceedings pay their own legal costs. However, there are exceptions to this. The Court may order one party to pay the legal costs of another.

How does the Court make a costs order?

The rules about costs are set out in Part 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules 2021).

Unless the Court otherwise orders, the amounts payable for a costs order are set out in:

• in Division 1, the scale of costs in Schedule 3 to the Family Law Rules 2021; and
• in Division 2, the scale of costs in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 or the scale of costs in Schedule 3 to the Family Law Rules 2021

The Court may depart from either scale.

Where costs are ordered according to the scale, this is known as party-party costs.

Sometimes, the Court may order that a specific amount of costs be paid, or may apply another method for determining the amount of costs.

In exceptional circumstances, the Court may depart from the scale and order that another party pay all of a party’s costs reasonably and properly incurred. This is called indemnity costs.

Costs in contravention proceedings

Division 13A of the Family Law Act 1975 sets out how costs are awarded in contravention proceedings that affect children.

If the Court decides that a 'more serious' breach of an order has occurred, it must order costs against the person breaching the order, unless it would not be in the child's best interests. If the Court dismisses a contravention application, or finds that no action is required, and such a finding has been made previously, it must consider ordering costs against the person who filed the contravention application.

Taxation of costs

Where costs have been ordered to be paid, other than in a fixed amount, the party who is entitled to the costs being paid must serve an Itemised Costs Account on the party liable to pay the costs. If there is no dispute, the party liable then pays the amount as ordered.

If the party liable to pay costs seeks to dispute the Itemised Costs Account, they may file a Notice Disputing Itemised Costs Account. The parties must then make a reasonable and genuine attempt to resolve the costs dispute.

If the parties are unable to resolve their dispute, either party may file the Itemised Costs Account and the Notice Disputing Itemised Costs Account with the Court. The Court will then fix the first court date for the determination of the costs dispute.

The first court date is ordinarily a settlement conference, where the parties are given an opportunity to resolve the matter; however it may also be a preliminary assessment, where a registrar of the Court will give a preliminary assessment of the amount of costs to be paid; or an assessment hearing. If the matter does not resolve at the settlement conference or as a result of the preliminary assessment, the dispute will proceed to an assessment hearing. At this point, any dispute with respect to any item in the Itemised Account will be addressed by requiring amended or further documents to be filed as well as evidence of the costs claimed (such as file notes or process server invoices).

At the assessment hearing, a judicial registrar of the Court will determine the amount payable pursuant to the costs order, and also for the costs incurred as a result of the assessment where appropriate. At the end of the hearing, the Judicial Registrar must make a costs assessment order and give a copy to each party. At an assessment hearing, the Judicial Registrar may do a range of things including hear from witnesses, receive affidavits, and order a document be produced. 

This process is known as taxation (or assessment) of costs.

What are indemnity costs?

Where the conduct of a party warrants it (and only in exceptional circumstances), the Court can award all legal costs and disbursements that a party reasonably and properly incurred. These costs are known as indemnity costs.

How do I apply for costs?

You can file an application with the Court seeking a costs order. In some situations you can make an oral application for costs on the day of your court hearing. For more information about applying for a costs order speak to court staff or obtain advice from a lawyer.

How can I dispute the fees charged by my lawyer?

If you are not happy with the fees charged by your lawyer, you should first explain your concerns to your lawyer and attempt to resolve the dispute.

The Court is not responsible for overseeing private fee arrangements between a lawyer and client. These are known as solicitor-client costs.

If you wish to dispute the fees charged by your lawyer, you need to contact the law society or institute in your state or territory.

For Division 2 – Schedule 1: Scale of costs in family law and child support matters

For Division 1 – Schedule 3: Scale of costs in family law and child support matters

Part 1 – Costs allowable for lawyer’s work done and services performed

Costs – lawyer’s work

Part 2 – Costs allowable for counsel’s work done and services performed

Costs — counsel’s work

Part 3 – Basic composite amount for undefended divorce

Costs — undefended divorce

Part 4 – Basic composite amount for request for Enforcement Warrant or Third Party Debt Notice

Costs — Enforcement Warrant or Third Party Debt Notice

This fact sheet provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court.

0123V1