Who Pays Your Legal Costs?

Question2

Costs in Family Law Proceedings

In Family Court matters, the general position is that each party pays their own legal costs.

The Court does however, have the discretion to make an Order for costs, if the circumstances justify it in doing so.

In making a costs Order, the Court will consider:

  • The financial circumstances of each of the parties;
  • Whether any party is receiving Legal Aid;
  • The conduct of the parties;
  • Whether the proceedings were necessitated by the failure of a party to comply with previous Orders of the Court;
  • Whether any party has been wholly unsuccessful;
  • Whether either party has made any offer in writing to the other party to settle the proceedings and the terms of any such offer; and
  • Such other matters that the Court considers relevant.

Party and Party Costs

There are three scales of Costs Orders:

  1. Lowest – “party and party”;
  2. Mid range – Solicitor and own client; and
  3. Highest – indemnity.

In the Federal Circuit Court, the amount payable under a party and party costs Order is set out in Schedule 1 of the Federal Circuit Court Rules 2001. The Court has discretion to depart from the scale by ordering that costs be paid in a specific amount, adopting the Family Court scale or by applying some other method.

Costs in Contravention Proceedings

In contravention proceedings that affect children, there are specific provisions that govern how costs are awarded.

If the Court dismisses a contravention Application or finds that no Application was required, it must consider ordering costs against the Applicant.

Where there has been found to be a contravention without reasonable excuse, the Court must order costs against the person breaching the Order, unless it would not be in the child’s best interest.

Costs in Parenting Cases

Contrary to the general principle that each party bears their own costs, the Full Court of the Family Court in 2012 said in Hawkins v Roe:

“Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one is clearly motivated by self-interest rather than the best interest of the child, then a Judge may well conclude that there are circumstances justifying an Order for costs.”

Most recently, costs were ordered in the case of Maker & Jets (No.3). The proceedings were necessitated by the Mother’s failure to comply with the previous Orders; the Mother had been wholly unsuccessful in the proceedings with other considerations being allegations of dishonesty, adverse findings about her conduct, a complete absence of preparedness to compromise in the face of unambiguous expert evidence; and the making of a large number of allegations that were found to be without foundation.

Conclusion

You usually are required to meet you own legal costs in Family Law proceedings. It is only in limited circumstances that the Court will exercise its discretion and order the other party to pay your legal costs. Even if such an order is made it is very rarely an “indemnity” costs order. That is, it usually will not be for the amount of money you have actually outlaid in legal fees and outlays. You also have the difficulty of actually enforcing the terms of the order.

For more information

Maker & Jets (No.3) [2012] FMCAfam 1104

WARNING

This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.

Liability limited by a scheme approved under professional standards legislation.

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