What Is a Costs Order?

A costs order is when the Family Court or Federal Circuit and Family Court of Australia (FCFCOA) directs one party to pay some or all of the legal costs of the other party. These orders are not automatic—they’re made in specific situations, often to discourage unnecessary litigation or to compensate someone for being dragged into court unfairly.

In simpler terms:
If you’ve had to spend money on a lawyer because of the other party’s unreasonable behaviour or legal tactics, you may be able to ask the court to make them pay for it.

When Can You Apply for a Costs Order?

You can apply for a costs order during or after family law proceedings, including matters involving:

• Parenting arrangements

• Property settlement

• Divorce

• Spousal maintenance

• Interim applications (e.g., injunctions or occupancy orders)

Common situations where costs orders are considered:

• One party has clearly misused the court process (e.g., dragged it out on purpose).

• A party has acted dishonestly, unreasonably, or failed to comply with court directions.

• One side has unnecessarily increased the cost of the proceedings.

• A party has refused to negotiate when settlement was possible.

Example

Let’s say you’re in a parenting dispute, and your ex refuses to attend mediation, delays filing documents, and cancels court dates without good reason. This kind of behaviour wastes your time and money. The court may order your ex to cover part of your legal costs.

How to Apply for a Costs Order

1. Include It in Your Application or Response
   If you believe a costs order may be necessary, include a request for it in your Initiating Application, Response, or Affidavit.

2. Gather Evidence
   Keep records of all the ways the other party has acted unreasonably. This might include:

   • Missed deadlines

   • Ignored settlement offers

   • Court attendance records

   • Extra legal bills caused by delays

3. Raise It at the Right Time
   You can bring up costs during interim hearings or at the final hearing, depending on the situation. The court may deal with costs separately after the main decision is made.

What Does the Court Consider?

The court considers several things before making a costs order, including:

• Whether the party acted in good faith

• Whether they followed court directions and procedures

• The financial situation of both parties

• Whether an offer to settle was made but rejected unreasonably

• The outcome of the case (e.g., if one side clearly “won”)

The court’s main goal is fairness. Costs orders are not meant to punish but to discourage bad behaviour and make the process smoother for everyone.

Types of Costs Orders

• Party/Party Costs: Most common. One side pays a portion of the legal costs of the other.

• Indemnity Costs: Rare. One side pays almost all the other’s legal costs, usually for very bad behaviour.

• No Order as to Costs: Each party pays their own, which is the default in most family law matters.

Do You Need a Lawyer to Apply?

You don’t have to have a lawyer to ask for a costs order—but it can help. A lawyer can:

• Help draft your request properly

• Make sure your evidence is solid

• Represent you during a costs hearing

That said, self-represented parties can and do apply for costs successfully, especially if the other party has clearly wasted time or acted unfairly.

Key Takeaways

• Costs orders are not automatic—they’re based on conduct and fairness.

• You can request one during or after family law proceedings.

• Keep detailed records of unreasonable behaviour or delays.

• The court focuses on whether one party has made the process harder than it needed to be.

• Legal advice can help, but you can apply on your own if needed.