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Cost application in Family Court and how to lodge it


This enquiry is on behalf of a mate who wants to know:

a. what forms need to be completed to lodge a cost application against his ex in the family court.

b. how to lodge the cost application

c. if he make a oral application for costs with a judge or duty registrar

Thank you
Cost applications in the Family Court are not a common practice. The legislation is designed that each party bear his/her own legal costs. Section 117 of the Family Law Act.

It also depends upon whether one of the party's was wholly unsucessful, whether or not there was a valid offer of settlement, the financial circumstances of each of the parties, how the the case was prosecuted and the conduct of the party's, and whether or not a party was represented by legal aid.

Usually, contained in the initiating application is a catch all request for an order "…Costs of and incidential to this application…" usually this places the Court and the other party on notice that, if it deemed appropriate, that you will be seeking an order for costs.

Generally, the Magistrate, if requested during the hearing by a party, will approach the matter at the end of the matter after their decision, if they think there are circumstances that would warrant in doing so.

In my experience, they will adjourn the matter to a later date, and request that the cost applicant to file submissions in support of a costs application, then additional time for the respondent to reply in submission.

The matter may be heard in Court at a later date, or dealt with in chambers.  From experience usually with short hearing and with oral submissions, then the Magistrate may dismiss, adjourn for another date, to deliver their decision.

Usually, the Magistrate will only consider costs on a party by party basis - which is these amounts are set by the Federal Magistrate's schedule, and this usually works out to be a petence of what your legals costs were.   Things such as expenses - that is, costs for travel and accommodation are regarded as expenses and they are excluded from a costs calculation.

Then if all goes to plan, costs are awarded - then the other party is given time to pay.  If they don't pay…then another application for enforcement.  And the merrygoround starts up again.

However, going back to your original question of when should this occur - it depends whether the matter is child support, Property or children's Matters.  Usually there is only a 28 day limit after the decision.  Some would consider this to mean the last day of the trial (and this is the safest bet) however, advise your friend to see legal advice firstly to go through each of the sub-sections under S117 of the Family Law Act and apply the supporting common law case law before annoying the Magistrate further!
and what do you do if there is an order for cost and there is enforcement and nothing happens and solicitor keeps drumming money out of your pocket
Hi…funny as you have described  my current issue.  I was awarded a costs order and the other party has refused to pay.  I have addressed this through a contravention application, however the more appropriate form is an enforcement application.  I filed my application in October 2010 and is up for a directions hearing in Feb 2011.

I know it's sounds shocking but the FMC registry is located in rural NSW and there are very few sitting days each year.  I will be pressing for additional interest to added to the original amount.

I recommend that you Ditch the lawyer because the process is rather simple.  If the enforcement order is being ignored by the other party and payment is not forth coming, then another enforcement application, this time you complete the application yourself.  Perhaps this time the enforcement order be made as a garnisheed from wages or benefit payment at nominal amount.

Out of principle, this debt must be paid because the Magistrate wouldn't have made the order in the first place if it wasn't appropriate.  
thank you EMW 1965, this is what I thought tonight
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