legal costs in a family law matter

An application to recover legal costs in a family law matter was not allowed despite the wife's failure to receive a requested suppression order. Most people who seek an order from a Family Law Court are required by section 117(1) of the Family Law Act to pay their own costs. The court has discretion, however, to make one party pay costs incurred by the other party.

Section 117(2A) FLA requires a Family Law Court to consider the following factors in deciding whether one party should pay the costs of another:

• the financial circumstances of each party;
• whether any party is receiving legal aid assistance;
• the conduct of the parties during the litigation;
• whether court proceedings were required by the failure of one party to comply with court orders;
• whether either party was wholly unsuccessful in court;
• whether either party made a settlement offer and the terms of that offer; and
• other matters the court considers relevant.

If the court finds reason to do so, it can make any order concerning costs that it deems just.

Facts of the case

The wife in Sammarra v. Rostem, [2015] FamCA 877, asked the court to make a suppression order. A suppression order prohibits the parties and public from revealing the evidence in a court proceeding.

When the application first came to court, the husband did not appear. The case was adjourned to a later date. After taking evidence on that date, the court entered an interim suppression order which remained in effect until the court made a final decision. The court ultimately decided against entering a suppression order and dismissed the case.

The husband then asked for an award of more than $4,000 as his cost of defending against the suppression order. He argued that he was entitled to costs because the wife was wholly unsuccessful in seeking the order. He also argued that the order would not have been enforceable in the country where the wife now resides.

The court’s decision

The court noted that the wife had not received child support from the husband for some months and was therefore not in a strong financial position. In addition, the husband’s failure to appear at the first hearing caused the wife to incur additional costs associated with an extra court appearance.

The wife sought the order because she wanted to bring the parties’ child safely to the country of her residence for a visit. She presented expert testimony in that regard that was not challenged. She conceded, however, that the suppression order would not be enforceable in the country of her current residence. The wife therefore did not make unsupportable arguments.

The court also noted that the wife was not wholly unsuccessful since she did receive an interim order in her favor. In addition, the husband failed to make an undertaking not to distribute court materials in the country of the wife’s residence which would have spared him the expense of defending the application in court.

Under those circumstances, the court determined that it was not unreasonable for the wife to seek a suppression order, even if the application was ultimately unsuccessful. The court therefore denied the husband’s request for costs.