The approach in making orders on costs are different for ancillary relief matters and children matters.
For ancillary relief, the starting point is costs would be awarded to the party who wins the issue, matter or case. However, it is quite easy for courts to depart from this starting point. This is because family courts have a wide discretion in making cost orders. There may be different factors affecting the court’s decision on costs, especially when it would impact or reduce the amount of assets available for the parties to divide. These factors may include:
- Whether one or both parties rely on legal aid to conduct the proceedings;
- If there are sufficient assets to meet the parties needs if costs are ordered;
- Whether there was misconduct during the trial or proceedings – for example, if there was serious non-disclosure of documents or unnecessary delay created by a party;
- A party unreasonably refusing to participate in financial dispute resolution hearing.
The court will look at the overall impression of the parties and the case to determine what orders to make in relation to costs.
For proceedings relating to children matters, the courts will adopt the starting point of not making cost orders. This means the parties will have to pay for their own legal costs incurred in children proceedings. The reasoning behind this is that a party should not be penalised simply for making an application to show what is in the child’s best interests.
The court also has a wide discretion to make a costs order in exceptional circumstances, that is, deviating from ‘no order as to costs’. Some examples of cost orders that were justified and made was where a party:
- Acted unreasonably in the proceedings;
- Put forward a groundless position at trial;
- Made false and purely speculative allegations against the other party / parent of the children;
- Failure to make full and frank disclosure;
- Unreasonably refused to participate in mediation or Children’s Dispute Resolution hearing.