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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.]