Can I make the other party pay my legal costs? 
We are very often asked by our clients about Costs Orders and whether they can make the other party pay the legal costs they have incurred with respect to their application to the family law courts for property and/or parenting orders.
Whilst it is the usual course under section 117 of the Family Law Act 1975 that each party meet their own legal costs, a court may make an order that the other party pay your legal costs if there are circumstances that justify it doing so.
Circumstances considered by a Court in determining whether to make Costs Orders against a party
The circumstances set out in section 117(2A) of the Family Law Act 1975, which a court will have regard to in determining what, if any, costs order should be made against a party, include:
(a) the financial circumstances of each of the parties to the proceedings;
(b) 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;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) 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
(g) such other matters as the court considers relevant.”
Check out the case of Freeman & Guthrie [2018] FCCA 1566 for a useful summary of the factors the Court looks at when considering the making of a costs order. In that case, the mother was successful in 4 out of 5 applications for costs against the Father in relation to her application for parenting orders.
Costs Orders – The Benefits & The Risks
Court should be considered a last resort and is only necessary where a negotiated resolution by mediation and other means has failed as a result of failure of the other party to negotiate reasonably.
Are you in the midst of lengthy and drawn out court proceedings with your former partner? Or are you looking at filing an application to the family law courts in the near future?
Where a court application is required, having regard to the factors in section 117(2A) of the Family Law Act 1975, you may be entitled to recoup some of your wasted legal costs from the other party, if for example, the court proceeding has been necessitated by the failure of the other party to negotiate/comply with court orders. This is particularly so if the orders sought by you which you attempted to negotiate with the other party, are ultimately made by the court.
On the contrary, if your application fails wholly or in part, you may open yourself up to a costs order application by the other party.
Contact us for advice regarding Costs Orders
We strongly advice that you obtain advice from a family law expert prior to filing an application in the family law courts, in relation to the prospects of your intended application as well as your prospects of obtaining a costs order against the other party.
Failure to obtain appropriate legal advice may result in you losing out an opportunity to obtain a costs order in your favour or you may place yourself at risk of a costs order being made against you.
