in a family law each party is expected to share in the costs.
There is a good reason why parties who come to court are encouraged to settle their disputes out of court or participate in family dispute resolution. Going to court always means that a party will be incurring legal costs. Even if the party will be availing of legal aid there will always be expenses, even just for transportation and photocopying of relevant documents. Filing a case with a court requires the payment of filing fees unless the party applies for an exemption. There will be lawyer fees. There are also times when the court will be awarding costs in the order. So, there is no escaping costs whenever filing a court case.
Section 117 of the Family Law Act 1975 is the governing provision with respect to costs in a family law court case. The said provision provides that, subject to certain sections in the Family Law Act, each party to the proceedings shall bear his own costs. This means that in filing the case or responding to it and in hiring legal representation a party shall be responsible for paying for his own expenses.
Section 117 also provides for the rules whenever the court will order for the payment of costs. The factors that need to be taken into consideration by the court are enumerated in Section 117. In making an order for costs pursuant to Section 117, the court will have regard to the following factors:
Financial circumstances of each of the parties;
- Whether a party is receiving assistance by way of legal aid and the terms of such assistance;
- The conduct of the parties, which can be assessed in the pleadings they filed, admissions, production of documents and related matters;
- Whether the proceedings resulted because of a failure of a party to comply with previous orders of the court;
- Whether a party has been wholly unsuccessful in the case;
- Whether a party has made an offer in writing to the other party to settle the case and the terms of the offer;
- Other matters that the court will consider relevant.
Section 117 also provides that the costs of an independent children’s lawyer will be borne by each party to the case in such proportion that the court will consider as just. However, in ordering for the payment of costs incurred because of having an independent children’s lawyer appointed, the court will also consider whether a party has received legal aid or if a party would suffer financial hardship if made to pay a proportion of the costs.
The exception to the rule that each party will pay for his own legal costs is if the court will order one party to pay for the legal costs incurred by the other. The Family Law Rules 2004 and the Federal Circuit Court Rules 2001 provide for the party-party costs or what a party entitled to costs may recover. For instance, in Division 13A of the Family Law Act 1975, costs may be awarded against the person who breached an order except if the payment of costs would not be in the child’s best interests. However, if the contravention application is dismissed the Court might consider ordering costs against the applicant. Thus, when applying for a contravention order the applicant must be able to show proof of the breach.
Indemnity costs may be awarded against a party if his conduct warrants it. The award of indemnity costs is meant to indemnify a person or pay him back for the costs that he has reasonably and properly incurred in relation to the proceedings.
A party who seeks payment of costs may file an application to the Court for an order or may manifest his prayer orally during a court hearing. An applicant may either name a lump sum amount that represents the costs he incurred or he may list down an itemized account of the costs. The application for payment of costs must be served upon the party held liable to pay the costs. If it is a lump sum that is claimed in the application, the other party is entitled to ask for an itemized costs account, thus explaining how the lump sum was reached by the applicant. The other party has the right to dispute the application for costs.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.