Chapter 12 Costs Notice | Federal Circuit and Family Court of Australia

Use this brochure for information about legal costs to which Chapter 12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules 2021) applies. It provides information about:

party and party costs – what a person entitled to costs may recover, and
disputing an account – the process for ‘fresh applications’ in the Federal Circuit and Family Court of Australia (the Court).

Fresh applications are any of the following applications, including compliance with pre-action procedures associated with them:

an Initiating Application (Family Law)
an application that includes an Initiating Application (Family Law)
an Application in a Proceeding filed in connection with a fresh application
an Application for Divorce
an Application for Consent Orders
a contempt, contravention or enforcement application
an application relating to contempt in the face of the Court
an appeal, and a re‑hearing following an appeal, and
an Application for Review of final orders made by a registrar.

What are party and party costs?

Party and party costs are the costs payable by one party to another party under the Family Law Rules 2021 or by court order.

The costs that may be recovered are generally costs for the professional time of a lawyer or for work done in a lawyer’s office and the costs (referred to as disbursements) paid out for work done in association with a case e.g. the costs of a process server.

The costs that a lawyer may charge must be calculated in accordance with:

in Division 1 – the scale of costs in Schedule 3 to the Family Law Rules 2021; or
in Division 2 – the scale of costs in Schedule 3 to the Family Law Rules 2021 or the scale of costs in Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

if:

the Court orders that costs are to be paid and does not fix the amount, or
the costs are an entitlement under the Family Law Rules 2021.

You can view Schedule 3 to the Family Law Rules 2021 and Schedule 1 to the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 via the legislation section at www.fcfcoa.gov.au.

The Court may order that the scale of costs does not apply.

How to dispute an itemised account for party and party costs

A person entitled to costs where the amount has not been fixed must serve on the person who is liable to pay the costs, an itemised account and a copy of this Costs Notice.

The process to dispute that account is the process detailed below ‘Disputing the itemised costs account – Step by Step’.

Disputing an itemised costs account

It is your right to receive an itemised costs account from the party entitled to costs that:

lists each item and the cost payable by date, description and amount; and
states any amount received or credited for the costs.

If you receive an account that states only a summary of work done and claims a lump sum, and you want an itemised costs account, you are entitled to make a request for it.

You have the right to dispute any part of the itemised costs account. There are strict time limits for taking action to dispute the itemised costs account. In special circumstances, time limits may be extended by making an application to the Court. You can obtain the documents you need to make this application by contacting a court registry. The relevant time limits are set out below.

Disputing the costs account – step by step

Step	Action	Time limit
Step 1	Inform the party seeking payment of the costs that you dispute the itemised costs account by serving a Notice Disputing Itemised Costs Account on the lawyer (Rule 12.36).	Within 28 days of receiving the itemised costs account.
Step 2	Contact the party seeking payment of the costs to discuss options for resolving the dispute (Rule 12.37(2)). You must make a reasonable and genuine attempt to resolve the dispute.
Step 3	If the dispute is not resolved, either you or the party seeking payment of the costs can ask the Court to rule on the dispute. This is done by filing the Notice Disputing Itemised Costs Account and the itemised costs account with the Court. (Rule 12.37(3)).	No later than 42 days after the date you served the Notice Disputing Itemised Costs Account on the lawyer.
Step 4	When the Notice Disputing Itemised Costs Account is filed, the Court will fix a date for: a settlement conference (see Rule 12.41) a preliminary assessment (see Rule 12.42), or an assessment hearing (see Rule 12.45). You will receive a Notice from the Court with the Court date. You must, as soon as practicable, serve that document on the party seeking payment of the costs to advise them of the date.	Date allocated will be at least 21 days after the Notice Disputing Itemised Costs Account is filed with the Court.
Step 5	SETTLEMENT CONFERENCE Each party must attend or be represented by a lawyer. The judicial registrar will: give the parties an opportunity to agree about the amount for which a costs assessment order should be issued, or identify the items or issues in dispute. If the dispute is not settled, the judicial registrar will make procedural orders for the management of the costs dispute (Rule 12.41).	Date fixed by the Court
Step 6	PRELIMINARY ASSESSMENT The parties do not attend. The judicial registrar will calculate the preliminary assessment amount for which, if the costs were to be assessed, the costs assessment order would be likely to be made All parties are notified of the preliminary assessment amount A party may object to the preliminary assessment amount by filing a written notice of objection, and paying into the Court five per cent of the total amount claimed in the itemised cost account within 21 days after receiving notice of the preliminary assessment (see rule 12.43). The costs dispute will then be listed for an assessment hearing. If no notice of objection is received, the judicial registrar will make a cost assessment order for the preliminary assessment amount. Note: There can be significant costs consequences for a party who objects to a preliminary assessment amount and does not succeed in changing the assessment by at least 20 per cent in that party’s favour (see rule 12.43(3)).	Date fixed by the Court
Step 7	ASSESSMENT HEARING Each party must attend or be represented by a lawyer. The judicial registrar will: examine the itemised costs account; determine how much is properly payable; decide who will pay the costs of the dispute procedure and how much will be paid. This amount will be included in the costs assessment order; and make a costs assessment order. The party seeking payment of the costs may amend the itemised costs account up to 14 days before the assessment hearing starts, and after that with your consent or the permission of the Court. You must be advised of any amendment (see Rule 12.38). During the assessment hearing, the parties may be cross-examined (see Rule 12.46). Depending on the outcome of the assessment hearing, the registrar will decide which party is to receive any money paid into Court at Step 6.	Date fixed by court

Further information

For more information, including access to the Family Law Act 1975, the Rules of the Court and any of the forms or publications listed in this brochure:

go to www.fcfcoa.gov.au
live chat at www.fcfcoa.gov.au/livechat
call 1300 352 000, or
visit a family law registry near you.

The Federal Circuit and Family Court of Australia respects your right to privacy and the security of your information. You can read more about the Court’s commitments and legal obligations in the fact sheet The Court and your privacy. The fact sheet includes details about information protection under the privacy laws and where privacy laws do not apply.

Legal advice

If you want more information about your legal rights or obligations, or you wish to obtain independent legal advice, you need to contact a lawyer.

You can get legal advice from a:

legal aid office
community legal centre, or
private law firm.

This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Federal Circuit and Family Court of Australia cannot provide legal advice.

DISTRIBUTED IN ACCORDANCE WITH CHAPTER 12 OF THE FAMILY LAW RULES 2021

APPROVED BY THE CHIEF JUSTICE/CHIEF JUDGE IN ACCORDANCE WITH THE FAMILY LAW RULES

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