The $80,000 report and other surprise costs in family law fights

Parents navigating separation and divorce face potentially tens of thousands of dollars in surprise costs if they head to court to resolve disputes involving their children and finances, experts warn, raising the pressure to reach a settlement.

Expensive reports on family dynamics, fees for expert witnesses and document production, and legal costs thrown away when hearings don’t proceed on the scheduled day are among a litany of hits to the hip-pocket.

While the costs are not surprising to lawyers, most parents navigating the Federal Circuit and Family Court for the first time would be unaware of the range of costs they may face.

Two cases, one hearing date

Jodylee Bartal, an accredited specialist in family law and a principal solicitor at Melbourne-based firm KHQ Lawyers, said “perhaps the biggest shock of all” for clients was spending time and money preparing for a final hearing and discovering on day one that it would not proceed.

“The court will sometimes list two matters before the same judge to start on the same day,” Bartal said. It meant parties might find out that day that another case had priority.

Double-listing matters is a longstanding practice which reflects that a case may settle on the first hearing day, enabling another matter to proceed in the busy court.

Bartal said parenting mattered, and cases – particularly those in the “Magellan List” involving the most vulnerable children – would always get priority over purely property or financial disputes.

Clients whose cases don’t proceed that day “will have paid for a barrister … and may have paid for other experts to attend court”, Bartal said.

“Depending on how long it takes for the case to be relisted, some documents may also need to be updated, adding to the costs.”

She said barristers in some states charged “disappointment fees” if the matter did not run.

Family reports

Experts also said the cost of family reports, which are prepared by an expert such as a social worker, counsellor or psychiatrist, were increasing markedly.

The reports examine family dynamics and are used by the court to help determine what is in a child’s best interests.

Michael Tiyce, principal of Sydney law firm Tiyce & Lawyers, said the reports were an important piece of evidence in most parenting disputes and typically cost thousands.

“For a family report conducted by a highly respected clinical psychologist who regularly gives evidence in the court, you would be looking at $35,000-plus, which involves assessment of the parents and child over two days and reading of all the relevant material provided to them,” Tiyce said.

“This price can of course increase depending on the amount of work that is required to be undertaken – for example, if there are multiple children with complex psychiatric presentations and lots of reading of subpoenaed material, I have seen that cost blow out to $80,000.”

The reports are typically written by private experts and the costs are borne by the parties, although some reports are prepared by internal court experts at no cost.

Tiyce said family lawyers were required to provide clients with detailed estimates and cost notices which would usually include these estimates, but “they are still often an unwelcome surprise”.

“It certainly adds to the financial load of conducting parenting litigation but is inevitable in a court and legal system that continues to be chronically underfunded by the government.”

Bartal said family reports were more expensive in Sydney.

“In Melbourne they are between $8500 and $12,000,” she said.

Josephine Sergi, a family law specialist and partner at Melbourne firm Kalus Kenny Intelex, said the costs of private family reports had “significantly escalated in the last five or so years”.

“The court has the ability to order in-house reports be prepared at no cost to the parties; however, these are only reserved for parties with extremely limited resources,” Sergi said.

Short-form reports were required early in parenting proceedings, Sergi said. More comprehensive reports were generally ordered ahead of a final hearing.

“[When] privately obtained, the costs [of the full reports] can well exceed $10,000, and sometimes tens of thousands,” Sergi said.

Transcript

Sergi said the cost of obtaining transcripts of family law hearings, which are required when filing an appeal, could add up to thousands of dollars a day.

“The cost of a transcript is one of a number of deterring factors for people when considering proceeding with an appeal, although it is generally not the one deciding factor,” Sergi said.

Daily hearing fee

There are also court fees for filing the case and hearings. Bartal said the party who filed the proceedings, known as the applicant, was responsible for paying the “setting down fee” of between $820 and $1115 for a defended final hearing, and a daily fee of the same amount for each day from day two onwards.

Valuations

Bartal said that valuing a business for family law purposes was another costly area.

“The costs can be even higher where the valuer is asked to value the business at two different points in time, for example, at separation and at the present date,” Bartal said. “A business valuation will typically cost upwards of $15,000.”

Witness, subpoena costs

Sergi said that “fees to appear at court to give evidence can also be charged by expert witnesses such as private family report writers or valuers, again potentially creeping into the thousands of dollars”.

Issuing a subpoena to compel a person or organisation to produce documents to the court could also prove an expensive exercise. Sergi said those costs might also add up to thousands.

Bartal said the fee to issue a subpoena was $70 and the minimum “conduct money” paid to the named person was $25. But they might request additional funds to cover their reasonable expenses of complying with the order.

An accountant who was subpoenaed to produce a decade’s worth of documents in one matter Bartal was involved in had requested $50,000 in fees to produce them because of the difficulty involved in retrieving them from archives.

How to avoid the costs

While lawyers can limit some costs, such as by exploring other options to obtain documents rather than issuing subpoenas, many costs can only be avoided if the cases are resolved outside court.

But in some disputes, including in cases involving family violence, it may not be possible to reach an out-of-court agreement.

“I always encourage clients to negotiate or mediate,” Bartal said. “The costs associated with family law proceedings aren’t just financial; the emotional and time costs can be just as harmful.”

Sergi said costs were often higher “in cases where one party is less co-operative throughout the matter than the other, leaving that party to have to pursue expensive avenues to obtain the information required for the court to determine what is appropriate in a matter”.

“While there are avenues for costs to be claimed against the non-cooperative party, it is not always the case these will be recovered,” she said.

Tiyce noted some of the costs incurred might produce a long-term saving.

“Often a family report will be a catalyst for a settlement because the recommendations that are contained within that document would likely be persuasive to a judge and lawyers will tell their client that,” he said.

“[The] benefit of reaching a resolution goes well beyond the issue of costs. Agreements that parties reach between themselves are more likely to be tailored to their particular circumstances and those of their children, and more likely of working successfully than a decision that is imposed on them.”

The high cost of family law proceedings are in federal MPs’ sights. Zali Steggall and Monique Ryan have called on Prime Minister Anthony Albanese to set up a national inquiry into the family violence crisis amid calls for an urgent injection of funds for legal assistance services.

Ryan said last month that her constituents in Melbourne’s Kooyong “often tell me about their difficulties with financial burden and the family law system after leaving violent or coercive relationships”.

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