Who pays the costs?
As a general rule parties to Family Law proceedings pay their own costs.
The exception to this rule occurs when a Court order is made for one party to pay the other party’s costs.
A party can make an application for this type of order to be made while their matter is ongoing or within 28 days of receiving final judgment, unless there are Court Orders that direct otherwise.
Common circumstances which give rise to a costs order being made include:
- when a party refuses an offer of settlement made by the other party and then receives less from the final judgment;
- if a party makes an application that is wholly unsuccessful; or
- if a party is consistently failing to comply with interim orders (for example, orders to disclose information or documents).
Types of Costs
There are two types of costs that can be ordered. These are known as party-party costs and indemnity costs.
Party-party costs are usually calculated by using a legislative schedule which differs depending on whether your case is in the Federal Circuit Court or the Family Court. In the Federal Circuit Court the schedule is event based. This means that the legislation states that a particular amount is payable in relation to particular event in the Court process.
Party-party costs do not result in an amount payable that is the same as the party actually paid their own solicitor. This is a higher level of costs, referred to as indemnity costs, and orders for this type of costs are rarely made. When made, this covers the costs the person paid their solicitor.