Family law is a unique area of law, because of the amount of people that have access to the family law system in Australia at any given time. Disputes usually arise from husbands and wifes and mums and dads being unable to resolve their problems privately, and so the Family Law Act 1975 (Cth) gives everyone access to the Court for that assistance whether you are a self representer, legal aid funded or have a fancy pants lawyer.

Now the problem with those high priced fancy pants lawyers is that they tend to generate big bills particularly if one or both parties are up for the FIGHT! Often I hear from people who are so frazzled by the other parties tactics to litigate, litigate and litigate that the question is posed – Can I get my costs back in dealing with a highly litigious opposing number? 

Well it isn’t quite that easy…

The Rule…

In family law  the general rule that each party is responsible for their own legal costs. In matters where litigation can stretch for months and years (sound familiar?), this is always very significant factor.
Each time a party applies for the other party to pay some or all of their legal costs, they are required to establish to the Court that the circumstances of their case warrants a departure from that general rule. When considering this, the Court will take into account:

• the parties’ financial circumstances, and any legal aid grants;
• the position of the parties, and their conduct before the Court;
• if the proceedings were due to a breach of existing Court Orders; and,
• attempts made to settle the matter, and anything else the Judge considers relevant.

And for self representers it’s always scary to see in the other party’s orders and application that they are seeking costs. But in 99% of cases it’s just tactical hot air as the chance of getting costs is relatively low unless the party being asked for costs is being an absolute nuisance with endless and unnecessary applications.
A mother who last year made over 20 contravention applications comes to mind!
Funny thing was her excuse for a lawyer was happy to do them all at no doubt enormous cost to both her and the poor unfortunate self representing dad who had to respond to all of them!

Even when a costs order is made, the Judge dealing with the matter has to decide whether to make a cost order on a limited basis (scaled, or party/party costs), or indemnity costs (meaning that every dollar paid by the successful party will be reimbursed by the other side).

In the matter of Jaros & Calden, a case heard in the Federal Circuit Court in Adelaide in August 2019, the issue of indemnity costs were explored by Judge Heffernan:

“Such an order involves a very significant departure from the ordinary course and should only be made in exceptional circumstances. […] Some categories of matter in which it has been held appropriate to make an order for indemnity costs have been: where a party makes allegations of fraud knowing them to be false; or a party makes irrelevant allegations of fraud; evidence of particular misconduct that causes loss of time to the Court and to other parties; the fact that proceedings had been instituted and maintained for an ulterior motive; where proceedings have been commenced in disregard of known facts, or clearly established law; and, the making of allegations which ought never to have been made or a case based on groundless contentions. 

I am satisfied by virtue of […]the conduct of the father in the proceedings, his making of allegations which were not reasonably capable of belief, his deliberate non-compliance with orders of the Court; and what he must have well known to be the hardship caused to the wife in having to make the Application by reason of her difficult financial circumstances, that an order for costs on an indemnity basis is justified in this case with respect to the Application in a Case. Parties must be dissuaded from making baseless allegations, disobeying Court orders for tactical reasons, using children as weapons in a litigious war of attrition and wasting Court time. When all of those features are present, as they are here, they are matters which can tip the balance in favour of an exercise of the Court’s discretion to make an exceptional order for indemnity costs. They have done so on this occasion.” 

So in conclusion…

The matter of Jaros & Calden highlights that whilst indemnity cost Orders are uncommon and should not be expected by parties in family law litigation, a party who has been forced to incur legal costs in an unreasonable situation, may be able to seek costs from the other side.
Although good luck with getting a favourable outcome!

If you need free family law resources or low cost assistance with your applications and affidavits pop on by to The Legal Eagle:
www.TheLegalEagle.com.au
or drop Abbey (our fab paralegal) a line at

Ah “contravention applications”, I wish I had a dollar for every time a client wanted to file one due to their former spouse or partner’s failure to follow even the simplest of consent orders. The problem is you need to be careful in filing these applications because in a world where the courts are seemingly always time poor, if the contraventions you’re flagging aren’t serious ones, you may end up being the one who has to cough up the dollars.

Recently, in Adam & Tan (December 2019), Family Court Justice Carew heard an application from a father who was rather miffed that his former wife had breached consent orders that allowed him to have scheduled phone time with his kids. He also put in another application stating the wife had contravened consent orders by failing to provide the required notice of a forthcoming holiday that involved international travel. In this particular case, the mother and child lived outside of Australia so the phone contact was important to the dad. And while her Honour was happy to note the contraventions by the mother, she wasn’t going to push her and instead turned her hand to castigating the father for his contravention applications.
Her honour noted in the judgement:
“I have found that the mother contravened paragraph 34(b) of the primary order without reasonable excuse by failing to provide the required notice prior to travel. However, I do not intend to impose any sanction … The application by the father was, in my view, petty and unwarranted.”

And additionally Her Honour said of the missed telephone contact:

“I have found that the mother contravened paragraph 25 of the primary order without reasonable excuse on 2 June 2019 by failing to ensure the child was made available for the father’s communication. However, I do not intend to impose any sanction. The mother was told by the child that the father had not called her (although she was mistaken) and, upon becoming aware of the father’s difficulties with contacting the child, the mother has taken steps since 16 June 2019 to remedy the situation. The child now calls the father on Sundays … In my view this application was also petty and unwarranted.”

And here’s the kicker…
Her Honour then finished with:
“I consider that an order for costs against the father is warranted in the circumstances of this case. …The father has been at least substantially and arguably wholly unsuccessful in that not only were most of the alleged contraventions dismissed, the two that were established did not attract any sanction against the mother nor variation to the March 2019 order.
I have found the father’s conduct in relation to the proceedings to have been petty and unwarranted.

To rub salt into the wound, Her Honour ordered that the father pay $2,750.
Ouch!
So a couple of contraventions are proven but the person who flagged them cops the penalty. What could be going on here?
Maybe the law can give us a little guidance.

REASONABLE EXCUSES
When it comes to breaching consent orders the Family Law Act guides Judges as to which contraventions should be given more weight and which ones can be passed over because of what are called “reasonable excuses”.
Section 70NAE of the Act provides that guidance. Here, the following are considered reasonable excuses and with them the court must be satisfied that you should be excused because of your breach.

• The parent didn’t at the time of the contravention, understand the obligations imposed by the order.
• If a child didn’t stay with a non primary care parent during their agreed time because it was necessary to protect their or the respondent’s health or safety and that the time was not longer than necessary to ensure that protection.
• The above also can be used where it involves not delivering the child to the primary carer.
• Similarly, a reasonable excuse can also involve the child avoiding telephone or FaceTime contact with the non custodial parent if it is to protect the health and safety of the child.

But none of these seem to relate to our dad in Adam and Tan so I’ll take a little liberty here and imagine her Honour simply did not think his complaint about contraventions was significant enough to affect the best interests of the child. It is also important to note that the mother had gone to some effort to recompense dad for his lost phone contact.

EXAMPLES OF REASONABLE EXCUSES
Here’s a guide to what would be reasonable:

1. The parents have orders that their daughter lives with them for equal amounts of time. If she is ill for several weeks and her mother obtains medical certificates, the Court may still find there has been a contravention especially if the child is looked after by other people such as her grandparents while her mother is at work.
   
2. Where a car has broken down or there has been a car accident delaying a child being handed over to the other parent, the Court will accept this as a one off reasonable excuse as long as it is not used for delaying children spending time with the other parent for longer than necessary.
   
   

MEDIATE BEFORE YOU FILE – IT’S MANDATORY
The process is clear, if you have a complaint about your former better half about breaching consent orders, you need to seek out a good mediator and try and find solutions to your dilemmas BEFORE you file a contravention application.

Involving the court with borderline contraventions could result in you being the one punished while the one who contravenes gets off with a warning. That is an expensive day out in court!

NEED HELP WITH YOUR LEGAL MATTER?

Our team at The Legal Eagle love helping people who don’t need an expensive lawyer and want to get all their documents right for court.
Whether it’s a parenting application, a divorce or a property matter we can assist with all your paperwork so that you only use a lawyer when it is absolutely necessary.We will also guide you through the court process so you can be a confident self representer.

Our low cost service has helped hundreds of people Australia wide over the past 6 years.
Led by our experienced family lawyer, you can be sure your matter will receive the very best help. 

With our low costs… we take the fee stress out of your matter!

For more information drop a line to our fabulous paralegal Abbey: