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Costs orders?

Queries regarding applying for costs orders. There is plenty of information around on how to defend against one but not toom uch information on what circumstances provide a situation that orders can be granted.

My situation is currently that my ex has offered on numerous occassions to negotiate, and has also (in writing) said that what I am seeking is okay, just the finer details need to be worked out. He is refusing to attend mediation and insisting on going to court. In this situation is it likely that I would have costs awarded? (My legaL aid has just been denied due to my receiving property settlement)
Costs are always up the judge - discretionary

Hard to get, rarley obtained in settlements

Best thing to do is put on a WP offer.  But these need to be drafted with care for them to have an impact on costs
What is a WP offer?

We are no longer doing anything with property settlement - that is done and dusted and has been vacated from the docket, this is the children's matters he is dragging out.
The children have had to undergo a family report and have had an ICL appointed by the court (yet to be heard from) - he has agreed to mediation on these matters - has said that he is okay with what i have proposed, that we need to have finer details worked out - yet when i attempt to take him up on his offer to negotiate he continually backs down and says 'we are going to court'. I have this all in emails and text messages and also msn chat conversations. It is driving me up the wall and has been going on since november of last year. We have had a total of 4 court dates since with an LAT about to be scheduled (next court date friday), the family report is not due for another 2 weeks (approx) so I will be asking for a further mention prior to the LAT but still these appearances are costing me money. I realise that costs orders are unlikely - but in these circumstances?
without prejudice
I know costs are often awarded when a party discontinues an application.

 At one stage when I was still represented by a solicitor and the other party was threatening to apply to the court for costs against me my solicitor said it is a threat solicitors often throw around but in the whole time she had been practising she had never had costs awarded for or against her.

I was in the same situation situation as you wiccapixie and I think if the other side has more money they can drag things along laughing to themselves that they are costing you a fortune…. wipe that smile off their face and self represent!!

You say you have a LAT which is easier to run than cases in the FM court.That is one of the reason's they introduced the LAT. I have found the Registrar and Judicial Registrar in my case have been EXCELLENT in explaining things in simple terms for me. There is a "Duty Solicitor " at the court who's job it is to help with question's about court appearances you may have if self represented and the "case officer" assigned to your case can be contacted if things are not clear about procedural orders( not that I have used the one assigned to mine , did use the duty solicitor for questions about how things would run in the court room)… Just a thought.
Thanks for the info Beautiful Day, I will definitely be looking into it.

Koala - I saw another post on here about "without prejudice" however I still do not understand the concept - cost order i do - that seems simple. But the without prejudice bit I just don't understand how it works.

Sorry I know I must sound a bit daft here (having a bit of a scatterbrain evening after spending the day tabulating my evidence for court).
From my understanding "Without Prejudice" means for example, if you write "this offer below is without prejudice" and then outline an offer to the other party, it can not be used in court. It is like that offer never happened if it is not accepted by the other party. My solicitor did this when making final financial settlement offers and children's consent orders negotiations.

 My ex agreed to do anger management in interim orders without prejudice which meant he was not admitting to anything by agreeing to do this.
So a "without prejudice offer is made outside the court - not within it?

And if the other party does not accept the offer - it never existed (essentially)?

So what then is the incentive for the other party to take the offer? If costs orders are rarely granted anyway?
Hi again Wiccapixie,

To give my post some basis I looked up the rules of a "without prejudice offer".

Chapter 12 of the family law rules 2004, rule 10.02 says;

"A party must not mention the fact that a without prejudice offer has been made, or the terms of the offer:

a. in any document filed or

b. at a hearing or trial "

As for your last question you will have to ask the person who made the suggestion……KOALA please explain??
Most of what is above is correct.  If an offer is made in writing and "Without Prejudice except as to costs" is put as a heading, it means the other side cannot use that offer (which may include admissions or consessions) in Court

The reason for this is to assist and encourage parties to compromise to reach a settlement, and not be concerned that the offer will come back and bite them in court

However, where they are useful if the matter gets decided by a court and the result is at least as good as the offer made. It is then you can tell the court of the offer you made and claim the other side should pay your costs (or a large part of them) from the date of the offer.  But its still up to the judge.

its a good move to put presure on the other side. If one party is being really unreasonable then costs becomes a real issue and possibility
Our matter is slightly the opposite. We have attempted to get the other party to agree to mediation, the other party agreed and then when the child was back in their care, renegged, stating that agreement had been made under duress. There was mediation back in 2008, no agreement reached and the other party keeps putting forward Terms of Settlement which are not a true reflection of what they offered in mediation.

Other party has engaged services of solicitor in Sep 09. And there has been an email exchange campaign since then. Suffice to say the other party failed to allow the child to attend contact as promised, eventually did so but on their terms. Distance is a factor.

We had intake for mediation at start of this year, they agreed then renegged (Stated above). Second intake with provider in other party's locality in March this year. Nothing heard back so far. Threat of not seeing child if don't send back signed terms of settlement. Terms send back noted without prejudice. Now the solicitor has sent amendments with less than 7 days notice requiring signature, still essentially same as previous TOS. And then is saying that their client will lodge in court and will seek costs.

No attempt at mediation, and there has been no attempt at negotiation either. It has been a case of either sign this or you won't see the child. No request from the solicitor as to if you do not agree to this, what do you want. And we were not making any offers, because we wanted mediation to occur, something that the other party had agreed to happen in 12 months after the original mediation in 2008.

So in that scenario, what do you think the other side's chances of getting costs awarded are?
Boots,  Have you told the other side (recently) what it is that you want? Is it possible the court would turn around and say one side is attempting to get terms - the other side is just rejecting the offers??

I don't mean to imply that is what is happening - but from what I read above that is how it came across (to me).

Would you consider negotiating back and forth via email/letter to get an answer? This would at least give you written evidence of what (if any) you have managed to get agreements on… should you need proof down the track.

We haven't put anything on the table as such. Didn't want to show our hand if you know what I mean. We have stated that we want the child to live with us and that it would be in the best interest of the child.

Interestingly enough, the other party said that they would take this to court at the beginning of the year. They failed to do so. Another school holidays comes around and it is the tooing and froing with the emails. Sign this and you will see the child etc. Well we did all that they asked, and the child has not been put on the flight. It has been three months since we have seen the child. If we have to wait until the next holidays, then it will be six months etc. No real chance of make up time.

I am assuming that they are initiating court proceedings, and will see if I can find out from the courts next week if anything has been lodged. The other side is very good at saying they will do this and that, but then don't follow through.

Will talk it over with my other half, to see what our next step will be.

As for court, well we have attempted at least twice to get the other party to mediation. And they have refused, stating, twice now, three months apart that they will take the matter to court.

A busy Easter weekend I assume coming up for us.
Hi Boots,

Sounds like parental alienation to me and the courts really do not look kindly on that!

Chances of other side being awarded costs? Slim to none from what I read of your post.

The other party has no reason to initiate an application…. they have the child and are calling all the shots why would they want court orders taking their power to do that away?? It seems to me they are stalling. The longer it is before you see the child the more they have an argument that there is no established relationship between you and the child.

My opinion get your certificate (that the other party was unwilling to negotiate) from FDR as soon as possible and file an initiating application yourself…and quickly. THEN you will probably get them negotiating.
Actually that is the conclusion we have come to as well. They keep threatening court, but it is in their interest to not have court orders. Very much a case of PAS but we know to refer to it as alignment or something similar.

We already have one certificate, and may be able to get a second for this second attempt as well.

Interesting thing is that the other sides solicitor has said that they have a certificate stating that mediation did not resolve anything (mediation in Nov 08) and yet they keep referring to agreed terms of settlement. If nothing was resolved, that means there is no agreement and therefore the terms of settlement are not agreed.

We have brought up mediation several times with the other sides solicitor but they keep refusing. Oh well, doesn't look good for their client, does it. And given that this is the second occassion that the other party has withheld the child, that also will not look good in the court for them.

I just wish I had someone at phone length to bounce ideas off of. Partner wants to send blast letter to the other sides solicitor but I am trying to keep everything factual and without emotion if possible. Big ask sometimes.
B Day is right -  start proceedings now
Will be lining all the ducks up over the weekend, getting everything together. Partner saw a solicitor some time ago, so will see on Tuesday if we can get urgent appointment. Really don't want to stuff this up. Partner not really in a position right at the moment to attend court in person.
Boots said
I just wish I had someone at phone length to bounce ideas off of. Partner wants to send blast letter to the other sides solicitor but I am trying to keep everything factual and without emotion if possible. Big ask sometimes.
Boots perhaps you should spend a little time looking around the rest of the FLWG site. The SRLR group actually list two telephone numbers and their Executives Signatures indicate where you can go for total privacy.
Thanks Conan (like the new avatar by the way, obviously the exercise has paid off). Don't really want to bother anyone on this extra long weekend. We are both at an emotional low at the moment, and need time to regroup. Tomorrow is another day.

This was definitely not how we had originally planned to spend Easter.
Boots, hugs and best wishes to you…

I can also recommend the SRL group - perhaps whisper to one of the execs for some urgent advice.

As a member of the SRL site I can recommend their reading quite highly. It is being quite invaluable to me this week (I have documents due in on the 13th and Court on the 19th) and I am likely going to be posting out to them over the weekend regarding some issues cropping up. I doubt anyone will be getting back to me before Tuesday and maybe later - but the point is that I will get an answer from someone who has broad knowledge in what I am asking (rather than just their own single issues with their ex).
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