Reasons why you could apply for costs in family law proceedings

People going through a family law case often feel they should not have to pay to defend their position, especially when they believe the other person caused the separation or the dispute. The starting point in family law is the opposite. Each person pays their own legal costs. A court can order one person to pay some or all of the other's costs, but only where the circumstances justify it.

No-fault divorce, and why blame does not shift costs

Australia has had no-fault divorce since the Family Law Act 1975 (Cth) commenced. The only ground for divorce is that the marriage has broken down irretrievably, shown by 12 months of separation (s 48). The court does not ask who was to blame for the marriage ending, and the reasons for the separation are not a reason to order costs.

Which provision applies in WA

In Western Australia, every family law case is heard in the Family Court of Western Australia, but two different costs provisions apply:

(a) for married couples, and anything else under the federal Act, the costs power is s 114UB of the Family Law Act 1975 (Cth). It replaced the old s 117 on 10 June 2025;

(b) for de facto couples' property and maintenance, and for parenting cases about children of parents who were never married, it is s 237 of the Family Court Act 1997 (WA), which still follows the old s 117.

The two provisions are very similar. Both start from each party bearing their own costs, and both allow the court to make a costs order, or an order for security for costs, where it considers the circumstances justify it.

What the court considers

In deciding whether to make a costs order, the court must consider:

(a) the financial circumstances of each party;

(b) whether either party is receiving legal aid, and the terms of the grant;

(c) the conduct of the parties in the proceedings, including how they dealt with pleadings, disclosure, questions and the production of documents;

(d) whether the proceedings were needed because a party failed to comply with earlier orders;

(e) whether a party has been wholly unsuccessful;

(f) whether a party made a written offer to settle, and its terms;

(g) anything else the court considers relevant.

The federal provision now names one more matter in (c): compliance with the statutory duty of disclosure. Since 10 June 2025, married couples have a duty under s 71B of the federal Act to give full and frank disclosure of their financial circumstances, starting before any case is filed. The WA provision does not name it, but the Family Court Rules 2021 (WA) impose the same duty on de facto couples (r 197), and a breach of it can lead to costs under those rules (r 210).

Where costs orders are more likely

Some situations recur:

(a) failing to disclose financial documents, or giving incomplete or misleading disclosure, so that the other party has to chase them;

(b) running a case, or part of a case, that had no real prospect of success;

(c) refusing a reasonable written offer and then doing worse at trial;

(d) having to bring proceedings because the other party ignored an existing order, such as a parenting order;

(e) not taking the steps the court rules require before filing, such as genuinely trying to resolve the dispute and exchanging documents, where no exception, such as family violence or urgency, applies.

None of these leads to an order automatically. The court weighs them together with the parties' financial circumstances. A party with far greater resources may also be ordered to contribute to the other's costs during a case, so that both can be properly represented.

How and when to apply

Under the federal Act, a costs application can be made at any stage of the proceedings, or within 28 days after the final order is made (s 114UB(4)). The court can order costs in favour of or against a party whatever the degree of their success.

A costs order rarely covers everything. Unless the order says otherwise, costs are assessed on the party and party basis, which is generally less than the full amount a person pays their own lawyer.

Keeping costs down in the first place

The best protection against costs, and against paying your own, is to disclose fully and early, keep correspondence civil, and put sensible offers in writing. A written offer that the other party refuses can be raised later if the case does not resolve on better terms.

This article is general information, not legal advice.