Commonwealth Consolidated Acts

FAMILY LAW ACT 1975 - SECT 117

  (1)   Subject to subsection   (2), subsections   45A(6) and 70NFB(1) and sections   117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

  (2)   If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections   (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

Note 1:   For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division   1), see paragraphs 69(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021 .

Note 2:   For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division   2), see paragraphs 192(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021 .

  (2A)   In considering what order (if any) should be made under subsection   (2), the court shall have regard to:

  (a)   the financial circumstances of each of the parties to the proceedings;

  (b)   whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

  (c)   the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

  (d)   whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

  (e)   whether any party to the proceedings has been wholly unsuccessful in the proceedings;

  (f)   whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

  (g)   such other matters as the court considers relevant.

Costs of independent children's lawyer

  (3)   To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection   (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.

  (4)   However, in proceedings in which an independent children's lawyer for a child has been appointed, if:

  (a)   a party to the proceedings has received legal aid in respect of the proceedings; or

  (b)   the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;

the court must not make an order under subsection   (2) against that party in relation to the costs of the independent children's lawyer.

Limit on orders relating to intervention under section   91B

  (4A)   If:

  (a)   under section   91B, an officer intervenes in proceedings; and

  (b)   the officer acts in good faith in relation to the proceedings;

the court must not, because of the intervention, make an order under subsection   (2) of this section against the officer, or against an entity (including the Commonwealth or a State or Territory) by or on behalf of whom the officer was engaged or employed.

Funding of independent children's lawyer not to affect costs order

  (5)   In considering what order (if any) should be made under subsection   (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney - General.

Limit on orders against guardians ad litem

  (6)   The court must not make an order under subsection   (2) against a guardian ad litem unless the court is satisfied that one or more acts or omissions of the guardian relating to the proceedings are unreasonable or have delayed the proceedings unreasonably.