Kian & Kian (No 2) [2026] FedCFamC1F 160 (12 March 2026)

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym Kian & Kian has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. On 31 October 2025 I made final property orders in this matter. Those orders required the respondent husband, Mr Kian, to make a payment to the applicant wife, Ms Kian, by way of final property settlement. In addition, I made orders as follows:-
   1. Within 21 days the wife file and serve any submission upon which she seeks to rely in support of her application for costs of and incidental to these proceedings ("the Wife's Costs Submissions").
   2. The husband file and serve any submissions in response to the Wife's Costs Submissions within 21 days of receipt of the same.
   3. Any application for costs be determined on the papers in Chambers.
2. In compliance with those orders, on 21 November 2025, the wife filed submissions in support of her application for costs of and incidental to the proceedings. Those submissions seek orders that the husband pay the wife's costs of and incidental to the proceedings on an indemnity basis fixed in the sum of $171,916.
3. The husband has filed no submission in response to that application.
4. These are my Reasons for Judgment with respect to the wife's application for costs.

1. The wife was born in 1962 and is aged 63 years. She is a homemaker and lives in City B. The wife is an Australian citizen.
2. The husband was born in 1956 and is aged 69 years. He too is an Australian citizen. He lives in Country C.
3. The parties married in 1982 and separated in March 2018. There are two adult children of the relationship, both of whom live independently.
4. The wife commenced proceedings seeking final property orders in the Federal Circuit Court of Australia (as it then was) in December 2018. Final orders were made by me on 31 October 2025 requiring the husband to pay to the wife by way of property settlement the sum of $7,147,836.
5. The background to those proceedings is detailed in my Reasons for Judgment dated 31 October 2025 [Kian & Kian [2025] FedCFamC1F 766] ("the Judgment"). I do not propose to repeat that history here.

1. The costs provisions under the Family Law Act 1975 (Cth) were amended by the Family Law Amendment Act 2024 (Cth) ("the Amendment Act") which came into effect as and from 10 June 2025. The effect of the amendment was to repeal s 117 of the Act and to implement Part XIVC of the Act, which at s 114UB specifically deals with costs orders.
2. The first question for determination is whether the provisions implemented pursuant to the Amendment Act apply to these proceedings. The relevant transitional provisions are set out in the Amendment Act at Schedule 4, Item 15 which provides as follows:-

The amendments of the Family Law Act 1975 made by Divisions 1 and 2 of this Part apply in relation to the following proceedings:

(a) proceedings instituted on or after the day this Division commences;

(b) proceedings instituted before, and not finally determined before, the day this Division commences, other than proceedings in respect of which a final hearing has commenced before that day.

1. Section 4(1) of the Act provides that "proceedings" are defined as follows:-

(b) otherwise - means a proceeding in a court, whether between parties or not, and includes cross‑proceedings or an incidental proceeding in the course of or in connection with a proceeding.

1. The final hearing of this matter commenced prior to the repeal of s.117 of the Family Law Act 1975 (Cth) ("the Act"). Accordingly, that section continues to apply to the current application (cl 15 of Sch 4 of the Family Law Amendment Ac 2024 (Cth)).
2. Section 117 of the Act provides that each party to proceedings is to bear their own costs unless there are circumstances which in the opinion of the Court justify the making of a costs order.
3. Section 117(2) of the Act provides that:-

(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

1. Section 117(2A) of the Act provides that in determining what, if any, order should be made under subsection (2), the Court must have regard to the following:-

(a) the financial circumstances of each of the parties to the proceedings;

(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g) such other matters as the court considers relevant.

1. Should it be determined that it is just to make an order as to costs, costs are not awarded to punish the unsuccessful party but rather are compensatory in the sense that they are awarded to ameliorate the expense of the successful party resulting from having been required to participate in the proceedings.
2. The discretion afforded by s 117 of the Act is broad and the relevant factors contained in s 117(2A) are not to be read in a restrictive way; any one of those factors may found an order for costs, but all factors must be taken into account and balanced (I and I [1995] FamCA 80; (1995) FLC 92-625).
3. The Court has a broad discretion as to the weight to be attributed to the factors set out in s 117(2A) (Medlon & Medlon (No. 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664 at [24]).
4. The method of calculation of costs is prescribed by r 12.17(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ("the Rules"), which provides:-

(1) The court may order that a party is entitled to costs:

(a) of a specific amount; or

(b) as assessed on a particular basis (for example, party and party, solicitor and client or indemnity); or

(c) to be calculated in accordance with the method stated in the order; or

(d) for part of the proceeding, or part of an amount, assessed in accordance with Schedule 3.

1. Rule 12.17(3) sets out matters that may be considered in the calculation of costs, providing that:-

(3) In making an order under subrule (1), the court may consider the following:

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);

(c) the rates ordinarily payable to lawyers in comparable proceedings;

(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;

(e) the time properly spent on the proceedings, or in complying with pre-action procedures;

(f) whether expenses (paid or payable) are fair, reasonable and proportionate.

1. Having regard to the above matters, I consider that I hold a broad discretion in respect of matters relating to any costs orders.
2. I now turn to the considerations identified in s 117(2A) of the Act.

(a) The financial circumstances of each party to the proceedings

1. The wife does not address the parties' financial circumstances in her written submissions, save that she submits that she was not provided spousal maintenance by the husband during the proceedings and was compelled to sell personal assets to fund the proceedings and meet her daily living expenses.[1]
2. As recorded in the Judgment, I found the parties' net assets to be valued at $13,782,592 and made orders for adjustment of those interests on a 60/40 basis in favour of the wife, resulting in the wife retaining assets valued at $8,269,555 and the husband retaining assets valued at $5,513,037[2].
3. Having regard to those findings, I am satisfied that the husband has the capacity to meet an order for costs. Even were that not the case, it is well-settled that impecuniosity is not a bar to the making of an order for costs (per Nada & Nettle (Costs) [2014] FamCAFC 207; (2014) FLC 93-612 at [11]).

(b) Whether any party to the proceeding is receiving assistance by way of legal aid in respect of the proceedings

1. Neither the husband nor the wife is in receipt of legal aid.

(c) The conduct of the parties to the proceedings in relation to the proceedings

1. The wife submits that the husband's conduct in the proceedings justifies a departure from the usual principle that each party bear their own costs. In support of that submission, the wife relies upon:-

(a) The husband's persistent non-compliance with Court orders;

(b) The husband's failure to provide disclosure;

(c) The husband's conduct in unnecessarily delaying and escalating the costs of the proceedings; and

(d) The wife's financial hardship, which she submits resulted in the forced sale of the property at Suburb BB.

1. It was further submitted by the wife that a costs order is justified so that the husband's ongoing non-compliance with Court orders is "not rewarded".
2. As recorded in the Judgment, the husband has not participated in the proceedings at any stage. He has never appeared before the Court in relation to the wife's application for final orders, nor did he file any documents in the proceedings, notwithstanding orders requiring him to do so. Similarly, the husband did not comply with any of the orders made with respect to disclosure. These matters are considered in detail in the Judgment at [14] to [17] and [22].
3. As a result of the husband's ongoing non-compliance with Court orders, the wife was granted leave to proceed with her application for final property orders on an undefended basis (Judgment at [167] to [175]).
4. Having regard to my findings with respect to the husband's conduct in the proceedings, I am satisfied it is relevant to the determination of the wife's application for costs.

(d) Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court

1. The proceedings were not necessitated by the failure of either party to comply with previous orders of the Court.

**(e) Whether any party to the proceedings has been wholly unsuccessful in the proceedings

(f) Whether either party to the proceedings has made an offer in writing to settle the proceedings**

1. No submissions were made as to subsections (e) and (f).

1. Having regard to all of the above matters, I am satisfied that, notwithstanding s 114UB(1) there are circumstances that justify the Court making an order for costs in favour of the wife, pursuant to s 114UB(2).
2. The wife seeks that her costs be paid on an indemnity basis in the sum of $171,916 or such other sum as the Court deems just. The difficulty with that application is that the wife has not produced any costs agreement between she and her lawyers, as required pursuant to Rule 12.13(4) of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021.
3. Annexure A of the Wife's Costs Submissions seeks to particularise her costs claim. To that end the wife has annexed to the submissions documents including:-
   • Trust Account statements from AL Lawyers, AM Lawyers, and AN Lawyers;
   • Redacted MM Bank statements purporting to evidence payments by the wife in respect of her legal fees;
   • Redacted ANZ account statements purporting to evidence payments by the wife to her lawyers and payments for travel via rideshare services Uber and Didi;
   • Invoices for translation of documents;
   • Invoices for property valuations;
   • Invoices from AO Lawyers;
   • General Statement from AP Lawyers;
   • Customer Statement from AQ Lawyers;
   • Invoice from AR Company; and
   • Invoice from Notary Public.
4. The wife's submissions do not establish that she has incurred or paid the quantum of costs sought by her. Doing the best I can, I am able to identify the following amounts paid by the wife to lawyers in respect of these proceedings:-
   • AL Lawyers $ 5,220.45
   • AO Lawyers $ 450.00
   • AP Lawyers $20,112.40
   • AM Lawyers $ 450.00
   • AS Company $ 330.00
   • AN Lawyers $39,485.21

1. Some of the documents annexed to the submissions appear to relate to proceedings in City B. Any costs incurred by the wife in other proceedings are properly the subject of a costs application in those proceedings. Hence, I have disregarded those claims.
2. Similarly, I do not consider that there is any proper basis for the wife's claim for her travel or accommodation expenses. Accordingly, I have disregarded that claim.
3. It is well-settled that when costs are ordered by this Court such costs are payable on a party-party basis. The Court should not lightly depart from that rule; indemnity costs are awarded only in exceptional cases (per Kohan & Kohan [1992] FamCA 116; (1993) FLC 92-340).
4. Whilst the husband has not complied with Court orders and has failed to participate in the proceedings, I am not satisfied that such behaviour is so exceptional as to justify an order for indemnity costs. In any event, in circumstances where the wife has failed to disclose any costs agreements entered by her with her lawyers, and where she has not particularised the costs actually incurred by her, I am not satisfied that she has established a claim for payment of costs on that basis.
5. Rule 12.17 of the Rules identifies the method of calculation of costs. Rule 12.17(1)(a) confirms that the Court may order that a party is entitled to costs of a specific amount.
6. Rule 12.17(3) provides that the Court, in assessing an award of costs, may consider the following:-

(a) the importance, complexity or difficulty of the issues;

(b) the reasonableness of each party's behaviour in the proceeding including by having regard to the matters set out in subrule 12.08(2);

(c) the rates ordinarily payable to lawyers in comparable proceedings;

(d) whether a lawyer's conduct has been improper, unfair, unreasonable or disproportionate;

(e) the time properly spent on the proceeding, or in complying with pre‑action procedures;

(f) whether expenses (paid or payable) are fair, reasonable and proportionate.

1. I have considered the amounts claimed by the wife and have reviewed the documents produced by her in support of that claim. I have had regard to the documents filed by the wife and have also had regard to Schedule 3 of the Rules as to the scale of costs in family law and child support matters.
2. It was confirmed by the Full Court in Sfakianakis & Sfakianakis [2019] FamCAFC 54; (2019) 59 Fam LR 419 that a court may make such order as to costs as it considers just. At [10] the Court observed:-

It is, however, a mistake to think that if a costs order is made, that order can only be on a party and party basis or on an indemnity basis. The words "such order as to costs...as the court considers just" permit the Court to fashion an order that is apt to the circumstances. One such well-known example is assessment on a trustee basis, which is more generous than party and party costs, but falls short of an indemnity. Orders for a partial indemnity or for a particular period are obvious possibilities. The Court may also fix costs in a particular sum, taking account of all relevant circumstances; that type of order too is neither one for party and party costs nor an indemnity costs order. For convenience, in these reasons we shall refer to such orders as a "special costs order".

1. Having regard to the circumstances of this case, and particularly, the failure of the husband to engage in the proceedings, file documents, or make disclosure, I am satisfied that it is just to fix the costs of the wife. In doing so I have regard to the complexity of the matter, and the fact that the parties held substantial property interests in a number of different jurisdictions which made the process of identifying and valuing those interests more difficult and costly for the wife, particularly given the failure of the husband to engage in the proceedings.
2. In light of all of those factors I am satisfied that the wife's costs ought be fixed in the sum of $49,500. A payment in that sum represents approximately 75 per cent of the costs incurred by her as disclosed in the annexures to her written submissions. It takes into account the costs incurred by the wife in the preparation of her trial affidavit, Financial Statement, Amended Application and Case Outline document. It also takes into account that the wife was represented by counsel for part of the final hearing. An award in that sum appropriately compensates the wife for those costs incurred and is just in all of the circumstances.
3. I will order that the husband pay the wife's costs within 28 days.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.

[1] Written submissions filed 21 November 2025, paragraph 11

[2] Kian & Kian [2025] FedCFamC1F 766 [179]