Comparing Mediation and Court Costs in Family Law

Some family law matters are resolved through mediation, others are decided by the Court.  In parenting matters,  parties must try mediation (or Family Dispute Resolution) before they can proceed to the Family Court, except in limited circumstances.  In property matters, parties must take genuine steps to resolve their finances (this commonly involves mediation or other attempts at negotiation).  If mediation doesn't work, parties may then take their matter to Court.

The costs assciated with the different processes are outlined below.  

A Comparison: Mediation Fees vs. Family Court Costs

Mediation Fees

Mediation (or Family Dispute Resolution) is a low-cost way to resolve parenting and property matters.  In almost every case, mediation can occur at a fraction of the cost of going to Court. One of the reasons why mediation fees are low, is that the process can be run quickly and efficiently without the need for parents to obtain and pay for extensive documentation.  In fact, parenting mediations are often run without the parties having to produce any documentation at all.  Parents also do not have to pay for a lawyer to attend (they can bring a lawyer if they wish, but many choose not to).  Through mediation, parents have the help of a neutral third party (a mediator) to facilitate communication, negotiate a mutually acceptable resolution, and draft a Parenting Agreement, often for less than $1,000 per person.

Family Court and Legal Costs

By contrast, navigating the Family Court in Australia can be complex and costly.  The cost of proceeding to Court is determined by the type of application, complexity of case and whether lawyers are briefed.  Court costs are broadly divided into three categories – (1) Legal Costs (e.g. the amount you pay your solicitor and/or barrister), (2) Filing Fees (e.g. the Initiating Application for Parenting Orders, Initiating Application for Financial Orders or An Application for Divorce), and (3) Additional Costs (eg the Set Down fees for hearing, expert reports etc). 

It is the first category – legal costs – that are often the most significant and difficult to control when proceeding to Court.  For a few parents, legal aid funding may be available to cover some of the costs.  However, this funding is limited as it it subject to a rigorous means and merits test.  It is possible to represent yourself at Court, but many people find briefing a lawyer helps them stay on track and reduces the emotional impact of the dispute.  

If you intend to be legally represented in the Family Court, it is important that you speak to your lawyer at the outset about the types of fees that will be charged and the likely estimate of costs.   Solicitors may offer fixed-fee initial consults, but ongoing services are usually billed hourly and includes time preparing for Court as well as actual Court time.  Solicitors commonly bill for emails, phone calls, travel,  and drafting and reviewing documents.  In high conflict and complex matters, costs can balloon fast.  Some lawyers brief barristers (particularly for trials or interim hearings), and disbursement costs (e.g. photocopying) will often be passed straight to you.

In the Family Court, the general rule is that each party pay their own costs, regardless of the outcome (section 117(1) of the Family Law Act 1975. ) This means that even if you win, you might not recover your legal fees. Conversely, if the Court thinks your conduct was unreasonable, you could be ordered to pay your co-parent’s costs, even if you had a legitimate case. The discretion for the Court to order costs is in section 117(2) of the Family Law Act 1975 and requires consideration of the financial circumstances of the parties (including any legal aid grants) as well as the behaviour of the parties (including any unreasonable conduct, non-compliance and/or failure to agree to reasonable settlement offers).  The Court can make a costs order on a party-party or scaled basis (where limited amounts are paid) or an indemnity basis (where potentially every dollar paid by the successful party may be reimbursed). 

Conclusion

There are some matters that should proceed to Court, for example, where mediation is inappropriate and/or there are significant safety risks.  If this is your situation, it is important that you talk to you lawyer to get an accurate estimate of costs and a clear understanding of the litigation strategy.  For other matters, mediation is a great option and can often save you a lot of money.  At The Dispute Resolution Space, we offer low-cost, fixed fees.  You can learn more about our fees here.