Costs order when applying to extend a family violence order

The Judgment in Smith v Boarder [2022] TASSC 30 delivered by Justice Pearce on 16 May 2022 in the Supreme Court of Tasmania is a timely reminder that the losing party of an application to extend a family violence order may be required to pay the costs of the other side.  

In October 2021 the Respondent, Ms Boarder, filed an application seeking the extension of a Family Violence Order (FVO) for 3 years against the Applicant, Mr Smith, which was due to expire after 12 months. Ms Boarder was unsuccessful and Mr Smith then sought orders that Ms Boarder was to pay his costs associated with defending the application but his application was refused. Mr Smith then successfully applied to the Supreme Court seeking to set aside the Magistrate’s order refusing costs on the basis that the learned magistrate’s discretion miscarried and a costs order should have been made.  

The Usual Costs Order 

The “usual order” in civil proceedings is that costs follow the event, meaning that they follow the outcome of the proceedings or application. This means that the starting point is that the losing party pay the successful parties legal costs. The Court noted that a statute may provide a power to award costs on a different basis, for example, requiring each party to pay their own costs regardless of the outcome of the proceedings.  

The effect of s34 of the Family Violence Act on the “usual order” 

Section 34 of the Family Violence Act 2004 (Tas) states:  

Costs 

The court hearing an application under this Act made by a person other than a police officer may, if the court thinks fit, order either party to pay such costs as the court considers reasonable. 

His Honour noted that the language in the Tasmanian statute differed from other jurisdictions in that equivalent legislation in other jurisdictions either prohibited costs orders against an applicant except where an application was frivolous or vexatious (NSW & WA) or there was a presumption that each party would pay their own costs unless an application was frivolous, vexatious, in bad faith, false or malicious (Victoria & Queensland).  

Although His Honour accepted that Ms Boarder may still fear Mr Smith and that there was no finding that the application was brought for a malicious purpose or in bad faith, he ultimately held that Ms Boarders demeanour was irrelevant to the Magistrate’s exercise of their discretion because there was no conduct of Mr Smith during the time the FVO was in force which resulted in that fear.  

As the Tasmanian legislation had no provision which justified the Court moving from the usual order that costs follow the event, following examination of the decision of the learned magistrate His Honour ultimately held at paragraph [20] that: 

Application of the foregoing principles compelled the conclusion that Mr Smith was entitled to his costs of successfully resisting the application made by Ms Boarder for extension of the FVO. The opposition to the application was wholly successful. There was no conduct on his part which justified a different outcome. He was entitled to be compensated for the cost of the litigation which, according to the magistrate’s findings and conclusion, should not have been visited upon him.  

The decision hammers home the need to be cautious when applying for an FVO or extension of an FVO even where grounds were found to grant the order in the first instance.