When making a costs order in Family Law matters, a Judge of either the Federal Circuit Court or Family Court of Australia, hearing the cost application will exercise his or her discretion. When making a costs order in Family Law matters, a Judge of either the Federal Circuit Court or Family Court of Australia, hearing the cost application will exercise his or her discretion.
The Family Law Act 1975 is clear that each party shall bear their own costs, unless the Court considers there are circumstances that justify the Court making an order for costs. The Court will take into consideration things such as:-
- The financial circumstances of each of the parties to the proceedings;
- Whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
- The conduct of the parties to the proceedings;
- Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
- Whether any party to the proceedings has been wholly unsuccessful in the proceedings;
- Whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
- Such other matter as the Court considers relevant (which is a catchall consideration).
The financial circumstances and/or the inability of a party not to be able to pay for the other party’s costs are not a reason for a Judge not to make a cost order against that party.
When considering an application for a cost order, the judge will take into account all of the above matters however, one single matter may be determinative. This is not to suggest however that any of the above considerations are more important than the other.
The weight to be placed by a Judge when making a cost order is, as with all other areas of Family Law, discretionary.
If a cost order is made then it is a matter for the successful person to pursue that cost order should it not be paid by the unsuccessful person. This is done by way of enforcement proceedings. Later this week we will cover the Enforcement Proceedings process.
Should you need assistance from a Family Lawyer, call Kate Walker, Accredited Specialist Family Lawyer on 1800 891 691.