Applying for costs orders in family law matters

Lawyers often hear client’s say things such as “I’ll go them for costs” when a client feels that the other person to their dispute is not acting reasonably in the proceedings.

Under the Family Law Act 1975 the starting point for costs orders is set out under section 117 of the Act which provides that each party is responsible for paying their own legal fees associated with their family law case.

However, in certain circumstances the court in its discretion, will take into account a number of matters as to whether it believes it is the type of case that warrants one of the parties paying the other parties costs whether wholly, in part or not at all.

The court will have regards to the following things:

1. Financial circumstances of each of the parties to the proceedings

2. Whether any party in the proceedings is in receipt of a grant of legal aid

3. The conduct of the parties to the proceedings

4. Whether the proceedings were required by the failure of a party to the proceedings to comply with previous orders of the court

5. Whether any party to the proceedings has been wholly unsuccessful in the case

6. Whether either party to the proceedings has made an offer in writing to the other party to settle the proceedings and the terms of the offer

7. Any other matter the court considers relevant.

It is important to note that there are no hard and fast rules. The decision to make a costs order against a party whether it be for the entire legal fees incurred by the other party, or part of the fees, or none of the fees, is a matter of judicial discretion and can be difficult to predict.

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