What are the rules regarding costs in family law proceedings? Section 117 to Section 117C of the Family Law Act 1975 contains provisions regarding costs in family law proceedings. This article discusses costs in family law proceedings.
Section 117: Costs in Family Law Proceedings
Section 117 provides that generally, each party to proceedings under the FLA (the Act) shall bear their own costs. However, if the court is of the opinion that there are circumstances that justify it in doing so, the court may make an order as to costs and security for costs.
In considering what order to make, the court shall have regard to:
- the financial circumstances of each of the parties to the proceedings,
- 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,
- 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,
- whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court,
- whether any party to the proceedings has been wholly unsuccessful in the proceedings,
- 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
- such other matters as the court considers relevant.
Costs of Independent Children’s Lawyer (ICL)
To avoid doubt, in proceedings in which the court appoints an Independent Children’s Lawyer for a child, the court may make an order as to costs or security for costs, to the effect that each party bears a proportion the court considers just.
However, in proceedings involving an Independent Children’s Lawyer, if :
- a party to the proceedings has received legal aid in respect of the proceedings, or
- the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the ICL
the court must not make an order against that party in relation to the costs of the Independent Children’s Lawyer.
Funding of Independent Children’s Lawyer Not to Affect Costs Order
When courts to make orders in proceedings with an ICL, the court must disregard that the ICL gets funds under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
Limit on Orders Against Guardians Ad Litem
The court must not make an order against a guardian ad litem (guardian of the lawsuit) unless the court is sure that one or more acts or omissions of the guardian relating to the proceedings:
- are unreasonable, or
- have delayed the proceedings unreasonably.
Section 117AA: Costs in Proceedings Relating to Overseas Enforcement and International Conventions
Under Section 117AA, in proceedings under regulations made for the purposes of international conventions, international agreements, and international enforcement, the court can only make an order as to costs (other than orders as to security for costs):
- in favour of a party who has been substantially successful in the proceedings, and
- against a person or body who holds or held an office or appointment under those regulations and is a party to the proceedings in that capacity.
However, the order can only be made in respect of a part of the proceedings if, during that part, the party against whom the order is to be made asserted a meaning or operation of the Act or those regulations that the court considers:
- is not reasonable given the terms of the Act or regulations, or
- is not convenient to give effect to Australia’s obligations under the Convention concerned, or to obtain for Australia the benefits of that Convention.
In proceedings under regulations made for the purposes of Section 111B, the court can also make an order as to costs that is:
- against a party who has wrongfully removed or retained a child, or wrongfully prevented the exercise of rights of access to a child, and
- in respect of the necessary expenses incurred by the person who made the application, under that Convention, concerning the child.
Section 117AC: Security for Costs
Section 117A: Reparation for Certain Losses and Expenses Relating to Children
Under Section 117A, where:
- a court has found that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened a parenting order to the extent to which the order provides that:
- a child is to live with a person,
- a child is to spend time with a person, or
- a child is to communicate with a person
- a person has been convicted of an offence against Section 65Y, 65YA, 65Z or 65ZAA in respect of a child,
- a court has found that a person has, by taking a child away from another person or by refusing or failing to deliver a child to another person, contravened an injunction granted, or an order made, under Section 114, or
- a person has been found to be in contempt of a court exercising jurisdiction under the Act by reason of having taken a child away from another person or having refused or failed to deliver a child to another person
a court having jurisdiction may:
- on the application of the Commonwealth – order the person to make reparation to the Commonwealth or to a Commonwealth instrumentality. This can be by way of money payment or otherwise, or any expense incurred by the Commonwealth in recovering the child and returning the child to a person, or
- on the application of any other person – order the person to make reparation to that other person by way of money payment or otherwise, in respect of any loss suffered, or expense incurred, by that other person in recovering the child and, if applicable, returning the child to a person.
Section 117B: Interest on Moneys Ordered to Be Paid
Under Section 117B, subject to any order made by the court, where, in proceedings under the Act, a court makes an order for the payment of money, interest is payable from:
- the date of the order, or
- the date on which the order takes effect
whichever is later, on so much of the money as is from time to time unpaid.
Furthermore, a court can make an order for a different rate of interest. The court can also make an order for a different date from which the interest would be payable.
Section 117C: Offers of Settlement
Section 117C applies to proceedings under this Act other than the following proceedings:
- proceedings under Part VI;
- proceedings under Division 6, 9 or 13 of Part VII;
- proceedings to enforce a decree or injunction made under Division 6, 9 or 13 of Part VII.
- a party to proceedings to which this section applies makes an offer to the other party to the proceedings to settle the proceedings; and
- they make the offer in accordance with any applicable Rules of Court
parties must not disclose the terms of the offer to the court that conducts the proceedings except for the purposes of the consideration by the court of whether it should make an order as to costs and the terms of any such order.
Seeking Legal Advice Regarding Costs in Family Law Proceedings
You may be facing orders of costs in family law proceedings, or any other matters such as interest. We highly advise you to seek legal advice regarding costs in family law proceedings.
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