Family law matters are not only emotionally draining but can be expensive too. As lawyers, we are often asked if there is any way to retrieve money off the other party, especially when another party’s actions may be drawing out the proceedings.
The addition of Section 95 in the Family Law Act 1975, on 6 May 2024 has solidified the overarching purpose of the family law practice is to ensure resolution of family law disputes in a quick, inexpensive and efficient manner. Section 96 has also been added to the Family Law Act 1975, which imposes a duty on parties and their solicitors to act consistently with the overarching purpose, or risk a costs order for non-compliance or unnecessary and tactical delay caused by a party.
In terms of general costs incurred by a party through family law matters, each individual party must bear their own costs, including disbursements and costs of counsel.
However, in certain circumstances, when a matter is before the court, a party may be ordered to pay the other’s costs if the court considers there is a justifiable reason to do so. These costs can be ordered on several basis including party/party or indemnity basis.
Section 117(2A) of the Family Law Act 1975 includes seven considerations the court shall have regard to when determining if a costs order would be just in a matter which include: the financial circumstances of each party, the conduct of the party to proceedings, whether a party to the proceedings has made an offer in writing to the other party and any other matters the court deems relevant.
In the matter of Garrod & Davenport [2021] FamCA 276, the Court ordered the father in the proceedings to pay costs to the mother of $45,000. The Court stated that reasons for their decision was the father’s ongoing false denials of family violence and insouciant attitude.
In all family matters, there is an obligation imposed on both parties of full and frank disclosure in which the father was found not to comply with. This is due to his continued denial of family violence perpetrated by him throughout the matter, until he was questioned in the witness box at trial. The Court found, that by failing to admit the truth of the facts and allegations of the mother, the father caused the mother to incur unnecessary costs.
In the matter of Lad & Gittens [2014] FamCA 439, the Court ordered the wife in the proceedings to pay indemnity costs to the husband where the outcome of proceedings saw the husband approximately $300,000 better off than his offer of settlement to the wife and where the wife did approximately $950,000 worse off than her offer of settlement to the husband.
In the matter, the Court found that due to the enormous difference between their offers, that it was clear the husband was wholly successful and the wife was wholly unsuccessful and that the wife was to pay the husband’s costs from the date of his letter of offer until the conclusion of the proceedings.
If you have separated from your partner and would like advice regarding your parenting or property matter, please contact our firm to make an appointment with one of our family lawyers on (02) 4944 3322.
