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Rule 12.15 would fix family law costs overnight. Ask when you last saw one, writes Dr John Cronin.
I recently wrote that the reforms family law needs are already on the statute book, unenforced, like an unloaded gun. The natural question the piece invites is: Does the gun have a name and a number? And I would wager most practitioners reading this have never seen it fired.
Rule 12.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 permits the court to order costs against a lawyer personally, where the lawyer, or their employee or agent, has caused a party to incur costs, or to have costs thrown away, through a failure to comply with the Rules, an order of the court, or a pre-action procedure. The court may make the order on application by a party, or of its own initiative. No party needs to ask. The power sits with the bench, every sitting day, in every matter.
Read that provision slowly and consider what it covers. The correspondence war that breaches the requirement to make a genuine effort to resolve the dispute before filing. The disclosure was delivered late, incomplete, or in a form calculated to exhaust the other side. The interim application served no purpose except pressure. The adjournment sought because the file was not ready. Every one of these is a failure to comply with the Rules or the pre-action procedures. Every one of them causes an opposing party, a real person, funding the fight out of the very pool being divided, to incur costs. And for every one of them, the Rules already provide that the lawyer responsible, not the client, can be made to pay.
Sitting above the rule is the statutory architecture. The Federal Circuit and Family Court of Australia Act 2021 (Cth) imposes an overarching purpose: the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible. It binds the parties, and it expressly binds their lawyers, who must take account of the duty in conducting the proceeding and can be ordered to bear costs arising from a failure to do so. The June 2025 amendments consolidated the costs provisions of the Family Law Act precisely so that these powers would be visible in one place. Parliament has done its part twice over. The framework is not merely available. It is mandatory in its terms.
So ask the obvious question. How many costs orders against practitioners personally were made in family law matters last year? The court publishes no figure. In a decade of involvement in family law property disputes, I have never seen one made, never seen one seriously threatened, and never met a practitioner who conducts a file as though the possibility existed. I invite correction; if these orders are being made in meaningful numbers, the profession would benefit from knowing. But I make the point with some confidence, because if the possibility were real, family law files would not look the way they look.
Consider the economics from the practitioner’s side. Non-compliance with the pre-action procedures is, at present, cost-free to the lawyer and often profitable: the pre-action stage becomes one more billable phase of the contest rather than an alternative to it. Every incentive rewards the three-page reply to the three-line email. The single change that would reverse those incentives overnight is the credible prospect that churning a file transfers its cost from the client to the practitioner. Rule 12.15 is that prospect, lying dormant. A handful of orders, made visibly, in reported judgments, would do more to change conduct in this jurisdiction than any practice direction ever written, because practitioners respond to what courts do, not what rules say.
Why is it never used? Three reasons, none of them creditable. Judges are reluctant to make findings against practitioners who appear before them weekly, in a jurisdiction that runs on goodwill between bench and profession. Practitioners will not seek orders against colleagues whose conduct mirrors what their own might be next month; there is a quiet mutual disarmament in it. And clients, the only people with a genuine interest in the order being made, have no idea the rule exists, because the person who would have to tell them is the person it would be made against.
The standard objection deserves an answer: that personal costs orders would chill fearless advocacy and punish lawyers for their clients’ instructions. But read the rule again. It is not directed at advocacy, fearless or otherwise. It is directed at non-compliance: with the Rules, with orders, with the pre-action procedures. A lawyer who runs a difficult argument hard, complies with directions, discloses on time and uses the pre-action stage genuinely has nothing to fear from Rule 12.15, however aggressively they advocate. The only conduct the rule reaches is conduct no client ever instructed: delay, churn, and procedural gamesmanship, which are the lawyer’s contributions to the file, not the client’s.
What would firing the gun look like? Three things, none requiring legislation. Judges could ask, at the first return of every property matter, one question: has each party complied with the pre-action procedures, and if not, why should costs not follow against the practitioner responsible? The question alone, asked routinely, would change behaviour before a single order was made. The court could publish the numbers: orders sought, orders made, quantum. A power that is counted is a power that is real. And practitioners, we could start advising clients that the rule exists. It is, after all, disclosure of a matter squarely relevant to the client’s interests: there is a mechanism by which the costs of the other side’s gamesmanship, and of ours, can be sheeted home to the lawyers who cause them.
The profession will not love this argument, and I make it as a member of the profession, subject to the same rule, which is precisely as it should be. A lawyer who conducts a file properly risks nothing under Rule 12.15. A lawyer who cannot say that has identified the problem, and it is not the rule.
Parliament loaded this gun in 2021 and polished it in 2025. It sits on the bench in every family law matter in the country, in plain sight of everyone in the room, while the pool of assets two people spent a lifetime building drains into the conduct it was designed to prevent. Nobody needs to draft anything. Somebody just needs to pick it up.
Dr John Cronin is the principal of CSM Solicitors.
