Section 114UB — Family Law Act 1975 (Cth)

(1) Subject to subsection (2) of this section, subsection 102QAB(6) and sections 114UD and 114UE, each party to proceedings under this Act is to bear the party’s own costs.

(2) If, in proceedings under this Act, the court is of the opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (3) of this section, sections 114UC and 114UD and the applicable Rules of Court, make any order for costs and security for costs that the court considers just, whether by way of interlocutory order or otherwise.

Note 1: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 1), see paragraphs 69(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021.

Note 2: For other provisions about the award of costs by the Federal Circuit and Family Court of Australia (Division 2), see paragraphs 192(4)(d) and (e) of the Federal Circuit and Family Court of Australia Act 2021.

Note 3: See also subsections 96(4) to (6) of this Act.

(3) In considering what costs order (if any) should be made, the court must have regard to the following:

(a) the financial circumstances of each party to the proceedings;

(b) whether any party to the proceedings is receiving assistance by way of legal aid in respect of the proceedings and, if so, the terms of the grant of the assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting paragraphs (a) and (b), the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters, and in relation to their duty of disclosure under subsection 71B(1), 90RI(1) or 90YJA(1);

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether a party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;

(g) such other matters as the court considers relevant.

(4) A party to the proceedings may make an application for costs:

(a) at any stage during the proceedings; or

(b) within 28 days after the final order in the proceedings is made.

(5) The court may order that a party is entitled to costs:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceedings, or part of an amount assessed in accordance with the applicable Rules of Court.

(6) If the court makes a costs order but does not specify the method for the calculation of the costs, the costs are to be assessed on a party and party basis.

(7) Subject to subsection (3), the court may make a costs order in favour of, or against, a party to the proceedings regardless of the degree to which the party has been successful in the proceedings.

Related sections

• s 114S — When a communication is not a communication to the public
• s 114T — Consent of Director of Prosecutions required to commence proceedings
• s 114UA — Definitions
• s 114UC — Costs of independent children’s lawyer and limitations on costs relating to intervening officer or litigation guardian etc.
• s 114UD — Costs in proceedings relating to overseas enforcement and international Conventions
• s 114UE — Security for costs

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