Speak Directly To a Lawyer Now

1300 038 223
Open 7am - Midnight, 7 days
Or have our lawyers call you:
  • This field is for validation purposes and should be left unchanged.

Costs Orders

A costs order is an order made by the court that one party to litigation has to pay all of part of the legal costs incurred by another party. In family law, each party is usually required to pay their own litigation costs unless there are particular circumstances that, in the court’s opinion, justify a costs order.

Should A Costs Order Be Made?

When determining whether a costs order should be made or what kind of order should be made, the law requires the court to consider the following:

  • each party’s financial circumstances;
  • whether parties are represented by legal aid;
  • the conduct of the parties to the proceedings, including whether each party complied with the rules of pleadings, disclosure and other similar matters;
  • whether the application was necessary because a party did not comply with a court order (for example, an application for the recovery of a child);
  • whether a party was wholly unsuccessful in the proceedings; and
  • whether either party made an offer in writing to settle proceedings.

In addition to the above considerations, the court can also have regard to any other matter that is deemed relevant in the circumstances.

Parenting Matters

It is very difficult to obtain a costs order in parenting proceedings. This is because it is often almost impossible to determine whether one parent has been “wholly unsuccessful” in the proceedings such that, combined with other considerations, it is just for an order to be made.

Property Matters

In property matters, a party will often write a letter outlining an offer of settlement to the other party prior to the final hearing. This is because if the offer is rejected, the letter can assist the party in obtaining a cost order at the end of proceedings. This is particularly so if the other party receives a less favourable outcome from the court than what was offered prior to attending court.

Different Types

There are different types of costs orders that can be made, depending on the circumstances that give rise to the costs order. These are:

Party/Party Costs

Party/Party costs are intended to reimburse one party for legal costs which they have paid or owe to their solicitor. This order is made where the costs have been agreed between the parties or assessed. In practice, party/party costs usually only provide partial reimbursement of the costs incurred in litigation.

If the court orders costs to be paid and does not fix the amount, or if costs are an entitlement under the Federal Circuit Court and Family Court Rules 2021, costs are to be calculated as follows:

The court is at liberty to exercise discretion when applying the scale and may make orders that a specific amount be paid or apply another method to determine costs.

Solicitor And Client Costs

Solicitor/client costs are the costs of the lawyer’s services and associated work in preparing and conducting the litigation as well as the lawyers ‘out of pocket’ expenses (also known as disbursements).

An order that costs be paid on a solicitor and client basis usually results in a larger amount than party/party costs.

The court has the power to make an order on a solicitor and client basis, except where there is a valid costs agreement. Costs between solicitors and clients are determined by the scale in Schedule 3 of the Act.

Indemnity Costs

Indemnity cost are all costs incurred during the litigation. This includes fees, charges, disbursements, expenses and remuneration incurred by a party in undertaking the proceedings. Indemnity costs orders are rare in family court proceedings.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Bree Staines - Senior Associate – Sydney

This article was written by Bree Staines - Senior Associate – Sydney

Bree is a senior associate in our family law team. Bree has a long-held passion for family law and believes that the law can be a mechanism to achieve positive and just change and resolution for her clients. Bree has practised exclusively in family law since her admission to the profession. Prior to joining Armstrong Legal Bree worked at the...

Legal Hotline
Open 7am - Midnight, 7 Days
Call 1300 038 223