Compensation of court costs

by | Jun 3, 2022

In Australia, there are two ways in which a party can be reimbursed for the costs of proceedings.

Where a party is unsuccessful, the other party may be awarded costs of proceedings, under the Federal Proceedings (Costs) Act 1981.

Section 111B

In proceedings under regulations made for the purposes of section 111B, the court may also make an award in respect of costs that is
(a) against a party who has improperly removed or retained a child or wrongfully prevented the exercise of rights of access has (within the meaning of the
Convention) has impeded; and
(b) in respect of necessary expenses incurred by the person who made the application, under that Convention, concerning the child.

Section 8

When the Appeal Court refers a case back to the court so that the court may rehear the case, it may grant the parties a costs certificate persuant to section 8 of the Federal Proceedings (Costs) Act 1981 (Cht) being a certificate that, in the opinion of the court, it would be approprate for the Attorney-General to authorise a payment under that Act to each of the parties in respect to the costs incurred by them in relation to the rehearing ordered.

Comar & Comar

This happened in the Comar & Comar case, of April 24, 2020. In this case, the court had denied the children’s return to Colombia because there was a serious risk that, if returned, the children would be exposed to a physical or mental danger, or in any other way be placed in an intolerable condition.

The Appeal Court held that the judge and the Family Consultant had not taken into account the father’s (unchallenged) statement about how he would care for the children if the children were returned, and that therefore the primary judge made errors in reaching the finding of grave risk. The Appeal Court grants to each of the parties a costs certificate pursuant to section 8 of the Federal Proceedings (Costs) Act 1981.