Costs Certificates in Family Law

In some limited circumstances, the Australian Government will cover the reasonable legal cost incurred by a private individual to appeal the decision of a court. There is provision in both federal and state laws to help litigants who would otherwise be financially disadvantaged by a court’s error, or by circumstances beyond their control. For example, at the Commonwealth level, the Attorney-General’s Department administers costs certificates under the Federal Proceedings (Costs) Act 1981 for courts such as the Federal Circuit and Family Court of Australia (FCFCOA).

What is a costs certificate?

Costs certificates provide an essential mechanism to address the financial burden on litigants caused by having to appeal judicial error and procedural issues that disrupt proceedings. When deciding whether to issue these certificates, the courts must strike a balance between promoting access to justice and maintaining the standard policy that parties to a legal matter bear their own costs. There are three preconditions, namely that there has been a federal appeal, to a relevant court, and that the appeal succeeded on a question of law.

Only litigants who would otherwise be adversely impacted by a court’s error have recourse to seek costs certificates. These certificates assist the parties to recover legal costs that would otherwise cause undue hardship or undermine justice. It is important to note that costs certificates are only granted in special circumstances. If someone is found innocent in an appeal for a criminal conviction, for instance, this does not mean that they are automatically eligible to have the costs of their appeal paid by the government. When the Australian legal system works as it should, a person without means have access to free legal support to appeal their conviction, and thus achieve justice without incurring legal costs. A person with means, convicted of a criminal offence, is generally responsible for their own costs, even if the judgment is reversed on appeal. However, in cases where the trial judge has made an error in law, then it may be reasonable for the government to refund the defendant’s legal expenses. Similarly, if appeal proceedings are aborted (such as because of the judge’s inability to continue), it may be reasonable for the legal costs incurred in the abortive hearing to be rebated because the circumstance was outside the defendant’s control.

Costs certificates in family law proceedings

Each party is generally expected to bear his or her own legal costs in family law proceedings, although the FCFCOA does have discretion to order one party to pay the other party’s costs in limited circumstances. In addition, an appeal on a family law matter that succeeds on a question of law may result in a costs certificate to cover at least some of the costs of the appeal. The amount that can be recovered via a costs certificate is determined based on the standard scale of costs for the court, but within a monetary cap set for each court. The monetary cap that applies to appeals to the FCFCOA is $4000.

The Family Court established the criteria for assessing applications for costs certificates in family law proceedings in B & B (Costs Certificates) [2007]. In this case, the parties appealed a decision due to judicial errors. The Full Court determined that it was appropriate to issue a costs certificate for both the appellant and the respondent due to significant procedural issues that impacted the fairness of the original hearing. More recently, in Hakim & Salim (No 2) [2022], the FCFCOA heard an appeal of property orders and associated costs. The appellant in this case sought to overturn a previous judgment, primarily related to a lump sum property order. While the appeal was partially successful, particularly regarding procedural fairness, the appellant failed to overturn most substantive orders, particularly in relation to the financial obligation. When considering whether to grant costs certificates under the Federal Proceedings (Costs) Act 1981, the court granted a certificate to the respondent for expenses incurred during the appeal but declined the same application from the appellant due to the limited success of their appeal.

Applying

To apply for payment of legal costs, the applicant needs to present the Attorney-General’s Department with copies of:

• The costs certificate with the court’s seal
• The court orders granting the certificate
• Itemised accounts for any legal fees that are recoverable under the costs certificate
• Receipts for any expenses recoverable under the costs certificate
• A template statement to confirm there is no appeal from the court order granting the costs certificate

Recipients who are registered for GST must send a tax invoice addressed to the Attorney- General’s Department. Payment is expected around 28 days after submission of the application, though the applicant will be notified if they have not fully completed the application.

Costs certificates are usually granted to help parties recover their legal expenses when judicial error and other exceptional circumstances necessitate a rehearing. They are intended to ensure fairness and mitigate undue financial hardship. Get in touch with Go To Court Lawyers if you require advice about a family law matter. Phone 1300 636 846 for any legal representation or advice.