Costs order against the other party in family law matters

Family Law cases are often different to civil cases in that normally the wealth of the parties is controlled by one party rather than both of them.

In certain circumstances we can make an application to the court for an order that the party, who controls the wealth, pay the legal costs of the other party in the first instance. This type of Order is called an Interim Costs Order and is commonly known as a Hogan Order, after the case of that name.

The logic behind such an Order is to ensure that there is a “Level Playing Field” between the parties.

To be successful in such an application one must satisfy the following criteria:

• There must be a difference in financial circumstance between the parties, such that one party controls all of the assets, whilst the other cannot afford to meet their legal costs;

• The party who controls the assets must be able to meet their own legal costs;

• The party who seeks the Order must have a case for property settlement that has prospects of success;

• The amount that the party seeks by way of property settlement will likely outweigh the legal costs Order sought; and

• Evidence of the likely costs must be in evidence before the Court.

An extreme example of an Interim costs order is the case of Strahan (Interim Property Orders) [2009] FamCAFC 166. The property pool in this case was estimated to be in excess of $80 million. The Husband had allegedly caused the Wife to incur significant legal costs in trying to identify and evidence his assets.

The wife made application to the court for an order that the husband advance her $5 million toward her legal costs to enable her to continue the proceedings.

The court was satisfied that the wife needed funds to meet ongoing Legal Costs of the proceedings and that she did not have the funds to pay those costs. As such the Court did make an Interim costs order, that the Husband pay to the wife’s legal costs, the sum of $1 million.