In family law, where there is usually no ‘winner’ and no ‘loser’, the courts start from the default position that each party to a proceeding under the Family Law Act must bear his or her own costs (section 117 of the Family Law Act 1975 (Cth) (“the Act”)). This means that an order for costs is an exception, not the rule. However, it is possible to be awarded an order for your costs.
Section 117(2) of the Act provides the Court the power to make an order for costs if “the court is of opinion that there are circumstances that justify it in doing so”.
Section 117(2A) of the Act contains a list of factors to be considered by the court when determining whether one party should be ordered to pay the costs of another. These include matters such as a party’s conduct as a litigant throughout the proceedings, the financial circumstances of each party, any written offer and whether a party has been wholly unsuccessful. In Fitzgerald (As Child Representative for A (Legal Aid Commission of Tasmania)) v Fish and Anor (2005) 33 Fam LR 123, the Full Court of the Family Court of Australia held that it was not necessary for all of the factors listed in section 117(2A) to be met in order for a costs order to be made.
It is important for anyone considering entering into family law proceedings to keep in mind that obtaining a costs order is the exception rather than the rule and to consider exploring the many ways that family law disputes can be settled without court proceedings.