As of 1 July 2008, solicitor/client costs are no longer regulated by the Family Law Rules 2004. Solicitor/client costs are now governed by the applicable laws regulating the legal profession in the relevant state or territory. See Solicitor/client costs and costs agreements.

Practice Tip: As from 1 July 2015, both New South Wales and Victoria are governed by the Legal Profession Uniform Laws. The Commonwealth government is seeking to have the other States and Territories adopt the Uniform Law to ensure uniformity in relation to the regulation of solicitor/client costs across Australia. Practitioners should refer to the Law Society in their State and Territory for any announcements in relation to whether or not their State is likely to adopt the Uniform Law.

The Family Law Act 1975 provides that — as a general rule — each party is to bear their own costs. This general principle is expressed to be subject to the following exceptions:

• costs orders as court thinks just — the court has a general power to make such orders as to costs as it sees fit;

• costs in proceedings relating to overseas enforcement and international conventions;

• costs where false allegation or statement made — where a party knowingly makes a false allegation or statement, the court must order that party to pay some or all of the other party or parties’ costs;

• frivolous or vexatious proceedings;

• contravention without reasonable excuse (more serious contravention) — where a party has failed to comply with orders and other obligations affecting children, the court, inter alia, must make an order as to costs against the contravening party.

Costs as between parties are regulated by Ch 19 of the Family Law Rules 2004. See Parties normally bear their own costs.

A party to family law proceedings in either the Family Court (of Australia or Western Australia) or the Federal Circuit Court may make an application for costs in either:

• interim proceedings; or

• upon final determination of the matter by the court.

See When Party/party costs orders might be made.

An application for costs can be made even if the matter is settled amicably between the parties or “by consent”. However, it is usual, and very desirable, that any consent arrangement include provision as to costs, usually being “that there be no order for costs” or “that each party shall pay his or her own costs of these proceedings.”

In children’s proceedings, an independent children’s lawyer (ICL) will often have been appointed. A condition of the appointment of the ICL includes provision that the ICL must seek costs against the parties (subject to a means test), whether the matter is finalised by consent or otherwise. In those circumstances the ICL may still make an application for costs against the parties. Such an order is usually not made, but practitioners need to be aware of the possibility of such an order.

See Independent children’s lawyer.

Party/party costs in the Federal Circuit Court are regulated by the Federal Circuit Court Rules 2001. As for proceedings in the Family Court, the Family Law Rules 2004 (Cth) address party/party costs, while costs as between solicitor/client are regulated by the applicable laws regulating the legal profession in the relevant state or territory.

For party/party costs in proceedings before the Federal Circuit Court, see When Party/party costs orders might be made.

For solicitor/client costs in proceedings before the Federal Circuit Court, see Federal Circuit Court Rules.