Navigating your family law matter can be daunting, especially when it comes to managing legal costs.
A common question we are asked by clients is “Can I force my ex to pay my legal costs?”. In family law matters, each party is generally responsible for their own legal costs.
However, the Family Law Act 1975 (Cth) (“the Act”) provides avenues for one party to seek an order for their legal costs to be covered by the other party in certain situations.
Section 117 of the Act allows for the court to make orders regarding the payment of costs in family law proceedings. The court has the discretion to order one party to pay the legal costs of the other party, but this is not an automatic right and depends on various factors.
When deciding whether to make a costs order, the court will consider several factors, including:
Since not all cases result in a published judgment, it can be challenging to determine how the Court exercises its discretion under this section.
However, the following recent cases provide insight into instances where costs orders have been made:
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2024/490.html
This judgment focuses on an application by the mother, seeking an order for the father to pay her costs in the sum of $75,000. Alternatively, she requested that her costs be assessed on an indemnity basis or, if not, on a party-party basis. The basis of her claim was that “The Respondent had been wholly unsuccessful in his attempt to obtain orders in the terms he sought and in fact obtained orders less favourable than he would have obtained had he accepted offers made by her prior to the trial”.
The Court assessed the factors of the case, including each party’s respective financial circumstances, whether any party had been wholly unsuccessful, the conduct of the parties and other relevant matters.
The Court ordered the Respondent to pay the Applicant’s legal costs of $75,000. The Court held that reasoning was that the Respondent was entirely unsuccessful, and the Applicant had made two pre-trial settlement offers which, if accepted, would have placed the Respondent in a better position than the outcome he achieved at trial.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F/2024/163.html
Costs were awarded to the Applicant because the Respondent repeatedly failed to attend hearings and frequently requested adjournments. While the Respondent filed applications for adjournments and provided medical certificates for two of the three instances, which the Court accepted as valid, it remained unclear whether the Respondent was truly unable to instruct a solicitor or appear, either personally or remotely. The Court found that the Application seeking an adjournment was in an incomplete form and that the correct practice is as set out in Buljubasic v Buljubasic [1999] FamCA 474; (1999) FLC 92-865 (“Buljubasic”). In that decision, the Full Court considered that it was improper for litigants to seek to communicate with a trial judge by sending a facsimile or other communication to the court or a registrar and that if a litigant seeks an adjournment or an extension of time, then either they must appear in court or send a representative to make a proper application for relief sought.
The Applicant was successful in having his costs assessed at $3,300 inclusive of GST. The court noted that the costs sought were on a party-party basis, reflecting a modest amount relative to the proceedings.
The court found the Respondent’s conduct, including her absence from hearings and failure to engage effectively, was a key factor in the decision to grant a costs order. Despite her health issues and self-representation, her lack of engagement and unsuccessful opposition to the Applicant justified the costs order.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FedCFamC1F//2023/411.html
Costs were awarded to the Applicant in circumstances where the Applicant made two offers to settle the proceedings prior to Trial, both of which were more favourable than the outcome, The Court found that the Respondent was financially better off, due to his contributions to the assert pool. However, the Respondent retained two properties and was awarded a cash adjustment.
Ultimately, the Court determined that the Respondent’s refusal to accept the Applicant’s settlement offers justified an order for her to contribute to his costs. The husband sought $92,277.46 in costs, with an estimated party-party cost of $46,000. However, the Court did not find that indemnity costs were appropriate and instead fixed the costs at $32,000, payable within 30 days.
While it is possible under the Act for a party to request that their ex-partner cover their legal costs, such orders are not automatic and depend on various factors assessed by the court. Conduct, financial circumstances, and the reasonableness of claims all play a role in the court’s decision. Seeking professional legal advice is crucial to navigate this process effectively and to understand your options based on your specific situation.
The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.
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