Costs in property and maintenance cases

What are legal costs?

Legal costs are the expenses you pay in your case. They include what you pay your lawyer and other expenses related to your case, called disbursements.

Professional costs

These are the fees your lawyer charges for their work and expertise. They include things like:

• reading and preparing legal documents
• representing you in court
• taking phone calls
• writing emails.

Disbursements

These are the expenses your lawyer has paid for you. They include:

• photocopying
• court filing fees
• postage
• travel costs
• agents’ fees – the costs of the work done by a lawyer for another lawyer
• experts’ fees, for example, the preparation of expert reports.

For more information, see Dealing with my lawyer.

Each person pays their own legal costs

Usually, each person pays their own legal costs in a property settlement case. However, the court can order one person to pay some or all of the other person’s legal costs. This is called a costs order.

Apply for a costs order

You can apply for a costs order:

• at any time during your case, or
• within 28 days after the court makes final orders
• within 28 days after the other party (ends) discontinues their case.

How to apply

To do this, you need to complete:

• an Application in a Proceeding, and
• an Affidavit - Family law and child support.

If you are asking for indemnity costs and have a costs agreement with your lawyer, you must tell the court about the terms of your agreement.

What the court will consider

When deciding whether to make a costs order, the court will consider:

• each person’s financial circumstances
• whether someone is receiving legal aid
• the behaviour of each person throughout the case
• whether your case happened because someone did not follow a court order
• whether someone was completely unsuccessful
• any written offers to settle the case
• anything else the court thinks is important.

If you can prove any one of these factors, the court can make a costs order. But that does not mean an order will be made. No single factor automatically means a costs order will be made. The court will carefully consider all of these factors before deciding whether to make a costs order.

Some factors may be more important than others. The court will decide how important each of these factors are.

Financial circumstances

The court will look at each person’s financial circumstances to work out:

• if you have the capacity to pay costs
• if a costs order will cause serious financial hardship
• if one person has a lot more money or financial resources than the other
• If a court order affects your ability to pay costs, for example, an order to pay the other party money or a maintenance order.

The court can make an order for costs against someone, even if they can’t pay.

Grant of legal aid

The court can make a costs order either for, or against, a person with a grant of legal aid. 

Legal aid does not include help given under the Family Violence Cross Examination Scheme.

Conduct of both parties

The court will look at how each of you acted during the case to see if either of you caused unnecessary legal costs. For example, if a person:

·       didn’t share the documents and information relevant to their case

• deliberately and significantly undervalued their assets, forcing the other person to pay for valuations to get the true value of the assets
• refused to negotiate or make an offer of settlement
• delayed the court case
• gave false or misleading evidence about their financial circumstances
• included lots of irrelevant information in their affidavit or oral evidence, such as referring to numerous old, trivial events in great detail that are not important to the case
• made late changes to their grounds of appeal and did not give enough notice to the court and the other person that they would make these changes.

Not following court orders

If someone doesn’t follow your property or maintenance orders, the court may order them to pay the other person’s legal costs.

The court will consider whether:

• it was on purpose
• there were circumstances beyond the person’s control
• the person has a history of not following court orders.

This is most common situation where the court will make a costs order against a person.

If a person is not successful at all

The court can order a person to pay costs if they are not successful at all.

The court must finish hearing a person’s application before it can make a costs order for this reason. The court cannot make an order against a person if they end (discontinue) their case early. However, the court may be able to make a costs order for a different reason.

If a person appeals final orders and loses the appeal, the court may see this as an important factor when deciding whether to make a costs order.

Offers to settle

The court will look at whether someone made a written offer to settle your case and what the terms of that offer were. It will consider:

• the context of when the offer was made
• what the person who received the offer knew about each person’s financial circumstance
• whether the offer was clear and easy to understand – there is no obligation on the person receiving the offer to clarity any terms
• how close the terms of the offer are to the final orders.

The closer the terms of an offer are to the final orders, the more important this is. However, just because the terms of the offer were the same or better than the final orders, this doesn’t mean it was unreasonable to reject the offer.

The court will look at when the offer was made and what each person knew about the other person’s financial circumstances.

The court will consider this to be less important if:

• the person didn’t understand their financial circumstances, or
• their financial circumstances are so complex that it would have been premature to accept an offer.

Other relevant matters

The court can consider anything else that may be relevant to deciding whether to make a costs order. This may include whether the application was frivolous or vexatious. A frivolous application is an application that is not serious. A vexatious application is made to annoy or embarrass the other party.

It does not include the difference in legal fees that you and the other person are charged by your lawyers.

Making a costs order

The court may make a costs order if the circumstances justify it. The court can choose whether to make an order. It decides each case based on its own circumstances.

When the court will make an order

The court can make an order:

• on its own, or
• if you or your ex-partner apply for an order.

Usually, the court may make an order where:

• a person doesn’t follow the pre-action procedures
• a person doesn’t follow the case management procedures
• a person doesn’t follow the rules, regulations or a procedural order
• a person refuses to follow a final court order
• a person ends (discontinues) their case.

What order will the court make

The court can make a costs order:

• for a specific amount
• on a particular basis, for example, party-party or indemnity basis
• for an amount calculated using a method stated in the order
• at the rates set out in the rules.

A costs order may cover part or all of the court case.

Usually, the court will make an order for party-party costs.

When deciding what order to make, the court may consider:

• the importance, complexity or difficulty of the issues in your case
• whether you and the other person acted reasonably during your case
• the ordinary rates of legal fees
• whether a lawyer’s conduct has been improper, unfair, unreasonable or disproportionate
• the time spent following the pre-action procedures and the length of your case
• whether expenses are fair, reasonable and proportionate.

The purpose of a costs order is to refund a party for their legal costs. It is not to punish the person ordered to pay costs.

Types of costs orders

There are two types of costs orders:

• party-party costs, and
• indemnity costs.

Party-party costs

Party-party costs are the most common type of costs order. They are also known as ordered costs.

Normally, party-party costs only cover some of a person’s legal costs. They do not cover every dollar spent.

If the court makes an order for costs but doesn’t what amount must paid or how to work this out, the person will have to pay party-party costs.

Indemnity costs

Indemnity costs cover most of a person’s legal fees. They usually don’t include costs that are unreasonable or excessive. They are less common than party-party costs.

The court only makes this type of order in exceptional circumstances. This may include situations where a person:

• should have known their case was not going to be successful – the court will presume they had an ulterior motive or a wilful disregard of the known facts
• knowingly makes false allegations
• engages in misconduct that costs the time of the court and other person
• prolongs the case by making unfounded claims
• refuses an order to compromise.

The court chooses whether to make an order for indemnity costs. The court doesn’t have to make an order, even if there are grounds for one.

For more information, see Legal costs in family law matters on the Federal Circuit and Family Court of Australia website.

Last updated: August 2026