FAMILY COURT ACT 1997 - SECT 237
FAMILY COURT ACT 1997 - SECT 237
237 . Costs — FLA s. 117
(1) Subject to
subsection (2) and sections 205SB and 242, each party to proceedings under
this Act is to bear the party’s own costs.
(2) If, in proceedings
under this Act, the court hearing the proceedings is of the opinion that there
are circumstances that justify it in doing so, the court may, subject to
subsections (3), (5), (6A) and (6) and in accordance with any relevant rules,
make such order as to costs and security for costs, whether by way of
interlocutory order or otherwise, as the court thinks just.
(3) In considering
what order (if any) should be made under subsection (2), a court must have
regard to —
(a) the
financial circumstances of each of the parties to the proceedings; and
(b)
whether any party to the proceedings is in receipt of assistance by way of
legal aid and, if so, the terms of the grant of that assistance to that party;
and
(c) the
conduct of the parties to the proceedings in relation to the proceedings
including, without limiting the generality of the foregoing, 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
(d)
whether the proceedings were necessitated by the failure of a party to the
proceedings to comply with previous orders of a court; and
(e)
whether any party to the proceedings has been wholly unsuccessful in the
proceedings; and
(f)
whether a party to the proceedings has made an offer in writing to another
party to the proceedings to settle the proceedings and the terms of any such
offer; and
(g) such
other matters as the court considers relevant.
(4) To avoid doubt, in
proceedings in which an independent children’s lawyer for a child has
been appointed, the court may make an order under subsection (2) as to costs
or security for costs, whether by way of interlocutory order or otherwise, to
the effect that each party to the proceedings bears, in such proportion as the
court considers just, the costs of the independent children’s lawyer in
respect of the proceedings.
(5) However, in
proceedings in which an independent children’s lawyer for a child has
been appointed, if —
(a) a
party to the proceedings has received legal aid in respect of the proceedings;
or
(b) the
court considers that a party to the proceedings would suffer financial
hardship if the party had to bear a proportion of the costs of the independent
children’s lawyer,
the court must not
make an order under subsection (2) against that party in relation to the costs
of the independent children’s lawyer.
(6A) If —
(a)
under section 207, the CEO intervenes in proceedings; and
(b) the
CEO acts in good faith in relation to the proceedings,
the court must not,
because of the intervention, make an order under subsection (2) of this
section against the CEO, the Department (as defined by the
Children and Community Services Act 2004 section 3) or the State.
(6) In considering
what order (if any) should be made under subsection (2) in proceedings in
which an independent children’s lawyer has been appointed, a court must
disregard the fact that the independent children’s lawyer is funded
under a legal aid scheme or service established under a Commonwealth, State or
Territory law or approved under the Family Law Act.
[Section 237 amended: No. 35 of 2006 s. 49, 77(1)
and (2), 102 and 140; No. 13 of 2013 s. 21.]
[ 237A. Deleted: No. 13 of 2013 s. 22.]