In Australia, each parent usually pays their own court costs in child custody cases, but this isn’t always the final outcome. Under the Family Law Act 1975 (Cth), the Federal Circuit and Family Court of Australia (FCFCOA) has discretion to order one parent to pay the other’s legal fees if fairness requires — for example, where there’s a significant financial imbalance, unreasonable behaviour during proceedings, or repeated non-compliance with court orders. In other words, who pays court costs in child custody cases depends on each parent’s conduct, financial capacity, and the overall justice of the situation.
The Default Position: Each Parent Pays Their Own Costs
As a rule, the FCFCOA expects both parents to bear their own legal and court expenses. This includes:
- Court filing and hearing fees prescribed under the Family Law (Fees) Regulations 2022
- Solicitor and barrister fees, disbursements, and expert witness costs
- Administrative expenses, such as service of documents, transcript fees, or interpreter costs
This approach is based on the notion that family law proceedings aim to resolve disputes in the best interests of the child, not to punish or reward parents. Cost neutrality also helps ensure that parents are not deterred from seeking fair outcomes due to fear of financial penalty.
When the Court Can Order One Parent to Pay?
The Court can order one parent to pay the other’s legal costs when fairness or justice requires it. Under section 117(2) of the Family Law Act 1975 (Cth), this happens when a parent’s conduct, financial situation, or actions during the case make cost-shifting appropriate.
For example, a judge may order one parent to cover costs if:
- There’s a major income imbalance — one parent earns substantially more and the other cannot afford to participate effectively in proceedings.
- A parent acts unreasonably — such as ignoring court directions, refusing mediation, or prolonging the case without valid reason.
- The case was unnecessary or vexatious — if one party brings claims with little merit or causes avoidable litigation.
- Court orders were breached — repeated or deliberate non-compliance can result in a cost penalty.
In these circumstances, the Court uses its discretion to promote fairness and discourage misuse of the legal process. Each decision is case-specific — the aim is not to punish, but to ensure both parents have equal access to justice while protecting the integrity of the proceedings.
What Court Costs Usually Include?
Court costs in child custody cases include all the necessary legal and administrative expenses associated with taking a matter to court. In Australia, these costs typically cover:
- Court filing and hearing fees — set under the Family Law (Fees) Regulations 2022, payable when submitting or responding to applications.
- Lawyer and barrister fees — professional charges for preparing documents, providing advice, and representing a parent in court.
- Expert reports — costs for specialist assessments such as family reports, psychological evaluations, or property valuations.
- Mediation and conference fees — where the court directs parties to attend dispute resolution sessions before trial.
- Document service and administrative costs — including process serving, subpoena fees, and transcript requests.
These costs are financial, not emotional — meaning parents cannot recover compensation for stress or lost income. The Court focuses solely on quantifiable expenses directly related to the custody proceedings.
Factors the Court Considers in Cost Orders
When deciding whether to make a cost order, the FCFCOA evaluates several legal and practical factors, including:
- Financial capacity – The ability of each parent to meet their own legal costs without causing hardship.
- Conduct during proceedings – Whether either party acted in good faith, followed procedural rules, and made genuine attempts to resolve the dispute.
- Outcome of the case – Although success can influence cost orders, the Court prioritises fairness and proportionality over “winner takes all” outcomes.
- Efforts to settle early – A parent who unreasonably refuses settlement offers or mediation risks an adverse cost order.
- Complexity of the matter – More intricate or high-conflict cases may justify broader cost considerations.
Each factor is weighed within the overarching principle of the child’s best interests, ensuring that cost decisions do not undermine the welfare of the child or the fairness of proceedings.
Negotiating or Sharing Court Costs
Parents can reach their own agreement on cost sharing through consent orders or written agreements before or during proceedings. Courts typically uphold such arrangements if they are fair and voluntary.
However, the Court retains power to vary or override cost agreements if one parent is unfairly disadvantaged or if enforcement would contravene the child’s best interests.
Legal practitioners often advise documenting any cost-sharing arrangement clearly to avoid future disputes. Speaking with a professional who can find a family lawyer experienced in custody disputes can help ensure any agreement complies with family law standards.
Financial Hardship and Fee Relief
If one parent cannot afford court costs, several options may be available:
- Fee waivers or reductions under the Family Law (Fees) Regulations for low-income or concession card holders
- Legal Aid assistance for eligible applicants
- Deferred or instalment payment plans approved by the Court
- Application for partial costs contribution from the other parent in cases of genuine financial hardship
These measures ensure that financial difficulty does not prevent a parent from pursuing or defending custody rights.
Role of Mediation in Reducing Costs
Mediation and family dispute resolution are key mechanisms under the Family Law Act for minimising litigation costs. Parents who resolve matters through mediation avoid multiple court hearings, expert report fees, and the uncertainty of judicial discretion.
Courts also look favourably on parties who attempt early resolution, often considering it a positive factor when assessing costs.
FAQs
Before diving into the most common legal questions, it’s worth clarifying that cost responsibility in child custody cases isn’t always straightforward. Many parents assume that the “losing” party automatically pays, but Australian family law prioritises fairness, not punishment. Each case depends on conduct, financial circumstances, and the Court’s assessment of what’s just and equitable. The following FAQs address the most frequent concerns parents face when navigating who pays court costs — and how judges actually decide.
Can a judge order one parent to pay all the court costs?
Yes. The Court may do so if a parent has acted unreasonably, ignored directions, or holds a significantly higher financial capacity. Such orders are discretionary and case-specific.
Are court costs tax deductible in child custody cases?
No. Legal and court costs incurred in family law matters are generally considered private expenses and not deductible under Australian tax law.
Can parents decide who pays court costs without going to trial?
Yes. Parents may agree on cost distribution through consent orders or a written agreement. Courts typically respect such agreements unless they are manifestly unfair.
What happens if one parent cannot afford legal representation?
The Court may consider financial hardship in making cost orders or refer the parent to Legal Aid or community legal services. Fee waivers may also be available.
Do mediation or settlement attempts affect cost outcomes?
Yes. Courts reward cooperation and good faith negotiation. A parent who refuses to participate in mediation or reject reasonable offers may face cost consequences.
Conclusion
In summary, each parent is generally responsible for their own legal costs in child custody disputes, but the Court has discretion to order one parent to contribute to or cover the other’s costs if fairness demands it. This often occurs when there’s a significant financial imbalance, persistent non-compliance, or conduct that unnecessarily prolongs proceedings. The Court’s focus remains on equity — not punishment — and on ensuring both parents can access justice while prioritising the child’s best interests.
If you’re uncertain about your legal or financial obligations in a custody dispute, professional advice is essential. LegalFinda connects you with experienced family lawyers across Australia who can assess your situation, explain potential cost outcomes, and help you prepare for court with confidence.
Get legal guidance through LegalFinda today and protect both your rights and your child’s wellbeing.
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