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Family law costs – who pays?

By February 26, 2021February 23rd, 2024No Comments

If you are successful in family court, can you ask the court to make the other party pay your legal costs? In some areas of law, courts regularly make costs orders in favour of a successful party. However, in the family law jurisdiction, things are slightly different. Normally, each party in a proceeding has the responsibility to pay their own family law costs. But under section 117 of our Family Law Act 1975, it’s also possible to ask the court to use its discretion to award costs.

Sometimes people think that costs are something of a punishment, like a penalty or damages. The family court does have the ability to impose fines (and even jail terms) punitively for serious contraventions of orders. However, costs orders are usually intended to be for compensation of legal expenses.

If the court is assessing whether to make an order for costs, it takes a number of specific factors into account. These are listed in the Act. Essentially, the courts will consider the financial circumstances of each party, whether they receive Legal Aid, each party’s conduct during proceedings, whether the proceedings were taking place because of the failure of a party to comply with the court’s previous orders, whether any party was wholly unsuccessful in the proceedings, whether any party made a settlement offer, and any other matters that the court finds relevant (a broad catch-all).

These factors enable the court to ensure that parties are practically able to satisfy a costs order, and also act as a deterrent to parties to conduct their proceedings in any way that drags things out and increases legal costs for the other party.

It isn’t necessary to prove all factors—each factor is considered individually and together. The judge weighs and balances all the factors before arriving at a discretionary decision.

In a recent case in the family courts, pseudonymised as Jaynes & Rundle,  a father unsuccessfully sought an order for costs after the mother’s appeal against final parenting orders was dismissed.  Although the father was able to show that the mother’s conduct was a factor, and submitted that the parties’ differing financial circumstances were not enough of a reason not to award a costs order against the mother. He also argued that the mother had been wholly unsuccessful in her appeal in the parenting matter, and therefore that she should bear the costs.

However the court noted the father’s stronger financial circumstances. While he did pay child support for the parties’ child, the mother (who was unemployed) submitted she was “primarily financially responsible” for the child’s expenses. The father did not dispute this in any submissions in reply.

And although the mother had been unsuccessful in her appeal, and there was the issue regarding her conduct, in this case the judge balanced all the factors and determined that “the mother’s financial position and the mother having the primary care of the parties’ child outweigh the other considerations”.

In line with the family court’s mandate of looking out for the best interests of children above all, the effect of any costs order on children is clearly an important factor that can outweigh other considerations.

This is also seen in the area of parenting contraventions. If a parent has breached court orders, the family courts do have the power to make a costs order against them, but there is an exception in section 70NFB(1)(a) that states that courts are not required to make a costs order where it would not be in the best interests of the child concerned to make that order.

The key takeaway would appear to be that before you make an application to a court for a costs order against the other party, carefully consider the factors that the courts must take into account.  If children are involved, assess whether the court making a costs order could be seen as impacting on their care, because this could outweigh other factors that you feel are in your favour.

You can read the above-mentioned judgment here.

At Alliance Family Law we do our utmost to keep our clients’ costs down and guide our clients towards an out-of-court settlement wherever possible to avoid the costs of litigation.

If you need assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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