So Chung and So

In the Family Court of Australia, Ms So Chung (the Mother) sought an order that Mr So (the Father) pay her costs of parenting proceedings on an indemnity basis. The Father had commenced these proceedings, seeking orders for the child to live primarily with him and for him to have time with the child. However, after his solicitors filed a Notice of Ceasing to Act, the Father failed to participate further in the proceedings, including failing to file a required Notice of Address for Service. The Mother took steps to serve the costs application on the Father.

The court was required to determine whether there were circumstances justifying an order for costs in favour of the Mother, and if so, whether those circumstances warranted an order on an indemnity basis. The court also had to consider the extent to which the Father had been afforded procedural fairness, given his lack of participation and failure to provide an address for service.

Justice Kent found that the Father’s conduct in commencing serious allegations against the Mother in the parenting proceedings, and then failing to pursue them or participate in the proceedings, constituted exceptional circumstances justifying an order for costs. The court noted that the Father had failed to provide any information regarding his financial circumstances, and that the Mother’s financial position was modest, exacerbated by the Father’s minimal child support payments. The court applied section 117(2) of the Family Law Act 1975 (Cth), which allows for costs orders where circumstances justify it, and considered the Father’s conduct under section 117(2A). The court also referred to the principles in *Kohan & Kohan* regarding indemnity costs being a departure from the usual rule, requiring exceptional circumstances.

The court ordered that the Father pay the Mother’s costs of and incidental to the parenting proceedings on an indemnity basis. The court was satisfied that the Mother had taken all reasonable steps to bring the costs application to the Father’s attention, and that any failure in the Father not receiving actual notice was entirely his own responsibility.