Chen & Tan (No 2)

In *Chen & Tan (No 2)*, the Family Court of Australia considered an application for costs following the dismissal of the Husband's application for a permanent stay of financial relief proceedings initiated by the Wife in Australia. The dispute arose from the Husband's contention that Taiwan was the clearly inappropriate forum for the proceedings, given the parties' Taiwanese citizenship and the location of their brief relationship and child's birth. The Wife argued that substantial connecting factors to Australia warranted the proceedings continuing in that jurisdiction.

The primary legal issues before the Court were the appropriate legal basis for awarding costs in a forum dispute and whether an indemnity costs order was warranted. The Husband argued that section 117 of the *Family Law Act 1975* (Cth) was inapplicable to forum proceedings, suggesting an alternative approach based on case law. The Wife contended that section 117 was applicable as her initiating application was filed under the Act. The Court was also required to determine whether the Husband's conduct justified departing from the usual party and party costs basis to award indemnity costs.

Justice Kent found that proceedings concerning whether Australia is a clearly inappropriate forum do not fall under the *Family Law Act 1975* and are not regulated by it. Instead, such proceedings arise from the Court's accrued equitable or inherent jurisdiction. Consequently, the Court's power to award costs was sourced from section 79(1) of the *Judiciary Act 1903* (Cth), which mandates that the laws of the relevant State apply to federal courts. In this instance, the Court applied section 221 of the *Supreme Court Act 1995* (Qld) and Rule 681 of the *Uniform Civil Procedure Rules 1999* (Qld), which generally dictate that costs follow the event. The Court determined that a costs order was appropriate given the Husband's complete lack of success in his stay application, but declined to award indemnity costs, finding that the Husband's conduct, while containing inconsistencies, did not reach the threshold of special or unusual features warranting such an order at that interim stage.

The Court ordered that the Husband pay the Wife's costs of and incidental to his application for a permanent stay on a party and party basis. However, this costs order was stayed pending the outcome of the Husband's appeal against the dismissal of his stay application. If the appeal is discontinued or dismissed, the costs order will become effective; if the appeal is successful, the stay will be permanent.