Costs Orders in Family Law Parenting Proceedings

One of the most common questions Bentleys Law is asked in parenting proceedings is: “If I win, can I get my legal costs back?” The answer, in family law, is usually no. Understanding why (and the circumstances in which it can change) is essential before deciding whether to pursue or resist a costs application.

The general rule: everyone bears their own costs (s114UB)

The starting point under s 114UB(1) of the Family Law Act 1975 (Cth) is that each party to family law proceedings must bear their own costs. This is a deliberate departure from the “costs follow the event” approach common in general civil litigation, and it reflects the particular nature of family law disputes.

Subsection 114UB(2) allows the Court to depart from that general rule where it is satisfied there are circumstances that justify doing so. Importantly, the general rule is not paramount to that discretion, it must yield wherever the Court finds circumstances justifying a costs order. The Court’s discretion in this respect is broad.

As Riethmuller J observed in Tekla & Telka:

“It is important to be mindful of the reality that litigants in family law matters are not sophisticated litigators. They often have low incomes and limited assets. Family law litigation concerns highly emotive issues and is often the only litigation that litigants will have in their lives.”

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This observation underpins much of the Court’s caution in this area. Parenting disputes are rarely a fight between commercial actors, nor one between international conglomerates, rather regular individuals going through the most stressful periods of their lives who will have had limited exposure to the legal system, and the costs regime reflects that.

If you have any queries concerning costs arising from Family Law proceedings you should contact Benteys Law.

The factors the Court weighs

Considerations relevant to departure from the general rule are set out in s 114UB(3). No single factor is determinative, and it is not necessary for more than one factor to be satisfied before a costs order can be made, only those factors relevant to the matter at hand need be addressed. All relevant factors must nonetheless be taken into account and weighed together in determining whether the overall circumstances justify a costs order.

Particular caution in parenting matters

Courts have repeatedly emphasised that costs orders should be approached with special caution in parenting disputes specifically, given how different they are in character from commercial litigation. In Hawkins & Roe, the majority (May and Ainslie-Wallace JJ), allowing an appeal against a costs order in a parenting matter, held

“While the categories of occasions when costs may be ordered is not limited, the occasions on which such an order should be made in a parenting dispute should have some particular features. Where there is a complete absence of preparedness to compromise in the face of unambiguous expert evidence, where false allegations are made, or where one party is clearly motivated by self-interest rather than the best interests of a child, then a judge may well conclude that there are circumstances justifying an order.” 

Thackray J, dissenting, added an important qualification after traversing the authorities on appellate interference in discretionary decisions:

“I also respectfully agree with May and Ainslie-Wallace JJ that the ‘general rule’ that each party will pay their own costs is not often displaced in parenting cases, and that the nature of such litigation is quite different to a commercial dispute in other courts. However, the statute itself does not differentiate between parenting and financial cases.” 

While the courts are cautious, the statute itself draws no formal distinction between property and parenting matters.  Costs orders are available in a parenting case where the circumstances justify it.

Financial circumstances of the parties: s 114UB(3)(a)

A party’s financial circumstances, including their capacity to actually meet an adverse costs order, is the first factor listed in section 114UB(3). This factor directs a court to take into account the ability of an individual to meet a costs order, as well as the financial circumstances of the individual seeking the costs. A disparity in financial resources between the parties may justify an order for costs in favour of the party with fewer financial resources. 

Other common factors that can be relevant include:

• Current income and its stability or volatility;
• Significant health conditions materially affecting earning capacity 
• Loss of employment as a direct consequence of health or other circumstances, and any resulting reliance on government or disability support

It is important to remember that the apparent inability of a party to pay costs is not a bar to a costs order being made in circumstances where that party’s conduct is determined to warrant an order (Cross v Beaumont (2008) 39 Fam LR 389). 

In other words, whilst a party’s financial circumstances is a relevant factor, impecunity is not in and of itself a defence against an order for costs. 

Legal aid: s 114UB(3)(b)

Where a party is in receipt of legal aid, the court should weigh this factor (though not determinative) consideration. Where neither party receives legal aid, this factor simply falls away. 

Conduct of the parties: s 114UB(3)(c)

This is often the most contested factor. Conduct that unnecessarily increased the other party’s legal costs, for example, non-disclosure, failure to comply with directions, or unreasonable positions taken in correspondence, conduct that delays or unnecessarily lengthens litigation, can support a costs order.

However, a few important qualifications consistently arise in the case law:

1. Proportionality. Costs orders are compensatory, not punitive. The quantum of any order sought should be proportionate to the actual, demonstrated impact of the complained-of conduct on the other party’s legal fees not simply awarded because some conduct fell short of an ideal standard. Where it isn’t apparent that any of the other party’s costs actually flowed from the conduct complained of, that significantly undermines the claim.
2. Non-disclosure isn’t always culpable. Where a party can show they made genuine efforts, for example, relaying relevant information to their own legal representatives and relying on those representatives to communicate it appropriately  a resulting gap in disclosure may not amount to the kind of conduct s 114UB(3)(c) is aimed at, particularly for a self-represented or unsophisticated litigant who was, in substance, at the mercy of their representatives.

Failure to comply with previous Court orders: s 114UB(3)(d)

Where a party’s non-compliance with earlier orders necessitated further proceedings, this can support a costs order. 

Whether a party has been wholly unsuccessful: s 114UB(3)(e)

This factor invites consideration of whether a party has been wholly unsuccessful in the proceedings as a whole, not whether they were unsuccessful in prosecuting a particular application within those proceedings. It is a high bar

“…wholly unsuccessful means there was no justified basis for the position adopted having regard to the outcome of the proceedings. Being ‘wholly unsuccessful’ must look not just at the outcome but the position adopted by the party as well.”

Being “unsuccessful” and being “wholly unsuccessful” are not the same thing, and a dismissed or partially-upheld application isn’t necessarily indicative of either,

“Even a meritorious case can be ‘unsuccessful’ when the other case is found to have greater merit. An application that is dismissed or not upheld may be both substantively competent, meritorious, but practically unsuccessful.”

Where neither party achieves everything they sought — for example, one parent seeks no unsupervised time at all while the other seeks a progression toward unsupervised time, and the final orders land somewhere between the two positions — neither party is likely to be found “wholly unsuccessful” within the meaning of the section.

Offers to settle: s 114UB(3)(f)

Reasonable and genuine offers to settle are one of the clearest examples where the Court will be minded to depart from the general rule. The Full Court has made clear that a party cannot reject or ignore a reasonable offer seriously made except at their own peril as to costs, and that,

“the failure to heed a reasonable offer in circumstances where there is adequate knowledge to the parties at the time of the offer is made to give it proper consideration, is something to which very significant weight indeed ought normally to be given“

Where a party claims their offer was “akin to” the final orders, but the final orders in fact departed from that offer in more than one material respect, that undermines the strength of the offer-based argument.

Such other matters as the Court considers relevant: s 114UB(3)(g)

A catch-all, to ensure that the Court does not overlook anything relevant that may not neatly falling within the other paragraphs. 

It can also capture matters going to a party’s overall good faith and motivation in running the litigation. The features identified in Hawkins & Roe: an absence of preparedness to compromise, the making of false allegations, or a party clearly motivated by self-interest rather than the child’s best interests, are a useful checklist here. Where none of those features are present, that tends strongly against a finding that circumstances justify departing from the general rule.

Conclusion

Costs orders in parenting proceedings remain the exception, not the rule. A party seeking one needs to show real, demonstrated circumstances under s 114UB(3) — not simply that they “won,” or that the other party’s conduct fell short of an ideal standard. A party resisting one should focus on proportionality, genuine attempts at settlement, and the absence of the kind of bad-faith conduct.

Contact Bentleys Law

If you’re facing a costs application in a parenting matter, or considering whether to bring one, the specific facts matter enormously, and early advice can make a significant difference to both the outcome and the costs of getting there.

When dealing with family law matters, having guidance from an experienced family lawyer can help you understand your rights, options and potential outcomes. For trusted family lawyers in Malvern, Preston and Geelong, Bentleys Law provides professional legal advice and support tailored to your circumstances.

Bentleys Law has extensive experience in all aspects of Family Law. If you are involved in family law proceedings and have questions about costs, contact us for a free 30-minute consultation.

Website: www.bentleyslaw.com.au                       
Email: info@bentleyslaw.com.au
Phone: (03) 9419 6066   

This article is general information only and does not constitute legal advice. 

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1 As the High Court made clear in Penfold & Penfold (1980) 144 CLR 311 at [12].
2 McAlpin & McAlpin (1993) FLC ¶92-411; I & I (No 2) (1995) FLC ¶92-625).
3 [2025] FedCFamC1A 245 at 51.
4 Fitzgerald as Child Representative for A (Legal Aid Commission of Tasmania) v Fish and Another (2005) 33 Fam LR 123;
Hawkins & Roe (2012) 47 Fam LR 526; Prantage & Prantage (2013) FLC 93-544 (“Prantage”)).
5 Zschokke & Zschokke (1996) FLC 92-693; Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466.
6 I and I (No 2) (1995) FLC 92-625.
7 Hawkins & Roe [2012] FamCAFC 77; It is noted that the Full Court held that if their Honours’ were intending to indicate that
certain features need to be present before a costs order can be made in parenting matters, that conclusion is incorrect, see
Wrensted & Eades (2016) FLC 93-697. The Full Court was however, ‘much attracted’ to Thackray J’s dissenting decision.
8 Ibid, 147.
9 Ibid, 162.
10 Marinko v Marinko (1983) FLC 91-307; Mallet v Mallet (1984) 156 CLR 605).
11 (Northern Territory v Sangare (2019) 265 CLR 164 at [25].
12 Peake v Benedict (Costs) (2014) 53 Fam LR 476 at [138].
13 Hawkins & Roe (2012) 47 Fam LR 526 at [161].
14 Murray & Murray (1990) FLC 92-173.
15 Browne & Green [2002] FLC 93-115 at [57].