Marano and Ogden - [2007] FMCAfam 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MARANO & OGDEN

[2007] FMCAfam 361

FAMILY LAW – Costs – proceedings wholly unsuccessful – other party derives tangible benefit from proceedings.

Family Law Act 1975, s.117

Rice & Asplund (1979) FLC 90-125

Applicant:

MR MARANO

Respondent:

MS OGDEN

File Number:

SYM 6144 of 2004

Judgment of:

Altobelli FM

Hearing date:

2 February 2007

Date of Last Submission:

15 February 2007

Delivered at:

Sydney

Delivered on:

7 June 2007

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr Corish

Solicitors for the Applicant:

Staunton & Thompson Solicitors

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Saville & Weston Solicitors

ORDERS

The Respondent Mother’s application for costs be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Marano & Ogden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 6144 of 2004

MR MARANO

Applicant

And

MS OGDEN

Respondent

REASONS FOR JUDGMENT

On 2 February 2007 I was invited by the applicant father and respondent mother to make certain orders by consent in relation to parenting issues. The nature of the proceedings will become obvious as it is necessary to set out their history in the course of these reasons.

I was asked to adjudicate on some specific issues, and I did so.

The mother made an application for costs and I directed each party to file written submissions in relation to costs. I regret that this matter did not come to my attention for some time, hence the delay in these reasons and orders.
A brief history of the proceedings is necessary in order understand the context in which the costs application was made, and my reasons for making these orders.
On 16 March 2006 Registrar Messner in the Family Court of Australia at Sydney made consent orders relating to [X] born [in] 2004. Those orders provided for [X] to live with her mother and for her father to have contact each Sunday for up to one hour, each Thursday for up to one hour, subject to notice provisions, subject to a location for the visits to take place. [X] was just two months old at the time that the first orders were made in relation to her.
Doing the best I can on the information before me, on 5 April 2005 [X]’s parents again entered into consent orders relating to her. There were detailed provisions that specified the amount of time that [X]'s father would spend with her. In particular order 5(a) covered the regime from the date of the orders until [X] attained the age of two years, and order 5(b) governed the regime from the time that [X] attained the age of three years. Order 5(c) and (d) covered the period from the time that [X] attained four and five respectively.
I observe that, for some unexplained reason, there was clearly a gap in the sense that these orders did not cover the period of time that [X] spent with her father after she had attained two years, but before she attained three years.
On 3 November 2006 [X]'s father commenced proceedings to discharge the previous orders; and that [X] live with her father each alternate weekend from Friday evening to Sunday evening and each Wednesday afternoon and at other times specified therein.

The father filed an affidavit in support of that application.
On 18 December 2006 the mother filed her response, together with her affidavit in support, and in her response she also sought to vary the orders made on 5 April 2005.
It is therefore interesting to note that as at 18 December 2006 both the applicant father, and the respondent mother, were seeking to vary the orders made on 5 April 2005, albeit in different ways.
The matter came before Federal Magistrate Sexton on 20 December 2006. Her Honour made the following orders.
1.Order 5(a) of Orders made on 5 April 2005 be varied such that it reads:
“From the date of Order until the child, [X], born [in] 2004 [“[X]”] attains the age of 3 years”.
2. For the purpose of [X] spending time with the father on Christmas Day 2006, the father collect [X] from the mother’s parent’s home at [address omitted] and the father return [X] to the mother’s home at [address omitted].
3. IT IS NOTED that a change to Order 5(a) was necessary as a result of a drafting error.
4. The matter be adjourned to 2 February 2007 at 10.00a.m. before Federal Magistrate Altobelli for hearing on the Rice & Asplund threshold issue for no longer than one day.
5. Each party file and serve any affidavits on which they intend to rely in relation to the threshold hearing by no later than 4.00p.m on 23 January 2007.
6. The Respondent mother’s costs of today be reserved.
Whilst her Honour reserved the mother's costs of 20 December 2006 that does not necessarily mean that costs ought, in fact, be paid.

The fact is that the mother herself sought to vary the orders, and there was benefit to her in resolving the issues that are referred to in Orders 1 and 2 made by consent by Federal Magistrate Sexton.
In any event, clearly after 20 December 2006 the issue in this case was a Rice & Asplund (1979) FLC 90-125 threshold issue which was listed for hearing before me on 2 February 2007. The Rice & Asplund issue arises, of course, because orders that were made as recently as 5 April 2005 were sought to be varied.
On 23 January 2007 the father filed an affidavit in the context of the remaining issue. At paragraph 3 of the said affidavit he deposes:
I seek to withdraw my current application seeking that the existing parenting orders be discharged and new orders made giving me some additional time with the child, [X], aged three. Although I believe the current orders are totally inadequate to allow me to develop a meaningful relationship with my daughter, I now concede that there may be insufficient change of circumstances to date to justify a re-hearing of the matter and I am stuck with the existing times for the time being.
I observe that, clearly, as at the date of swearing this affidavit (22 January 2007) the father was well aware of the fact that he was "skating on thin ice" so far as his application to vary the orders was concerned.
On 1 February 2007 the mother filed an amended response. The matter came before me on 2 February 2007. I was asked by Mr Corish, the solicitor for the father, and Mr Jackson, counsel for the mother, to read certain materials, and to hear submissions from them, and then adjudicate about certain discrete issues. I did so. I then made orders as follows.
1. That both parties when talking to the child, are to ensure that the other parent is referred to by a name that associates that particular parent as being the child’s father or mother, such as “your father”, “dad”, “daddy”, or, “your mother” “mum”, “mummy”.
2. That the father’s telecommunication with the child be suspended until 9 January 2008, whereupon the mother shall provide the father with her landline number at home.
3. To facilitate the father spending time with the child, the mother shall deliver the child to McDonalds Restaurant at [address omitted], at the commencement of each of the father’s mid-week and weekend periods of care. The mother shall deliver the child to the playground section inside the said McDonalds Restaurant to the father at the commencement of the period and then leave the premises immediately. The father’s period of care shall commence at the time the mother delivers the child to him. The father shall return the child to the mother at the end of his period of care by delivering the child to the mother at the same playground inside the McDonalds Restaurant and upon delivering the child to the mother, the father shall immediately leave the premises.
I note that whilst orders 1 and 2 were made by consent, order 3 was an order that I made, and in respect of which ex tempore reasons were provided to the parties on the day.
I also made directions in relation to the mother's costs and the filing of submissions and it is those matters that are now before me.
I make the further observation, however, that even on 2 February, in proceedings where a Rice & Asplund issue was clearly hotly contested by the mother, both the mother and the father entered into orders the effect of which were, not just in form but in substance, to supplement and vary the 2005 orders. It is not necessary for me to go into the evidence that was contained in the affidavits of both the mother and the father (that evidence not having been tested) but I do infer from them that Orders 1 and 2, made by consent, represented a compromise of the positions adopted by both parents, in relation to different issues.
In any event, the fact is that even though the mother's complaint is that the proceedings should never have been commenced, the Rice & Asplund threshold never having been crossed, she nonetheless derived tangible benefits from the proceedings. It would have been open to the mother on both occasions, ie both 2 February 2007 and 20 December 2006, to simply "stand her ground" so to speak, and put the father to proof on the Rice & Asplund issue.
Rather than doing that, however, she adopted what I consider to be the more reasonable approach and agreed to clarify issues relating to the interpretation and implementation of these orders and, no doubt, address matters of concern both to her, and the father.
The matters raised were all matters that parents should, ideally, be able to resolve themselves. Clearly, there is a high level of conflict between these parents.
The mother now complains, however, that the father should pay her costs arising out of the proceedings. The written submissions provided by her counsel, Mr Jackson, emphasised the history of the proceedings, and how it must have become apparent to the father no later than 20 December 2006 that there were serious issues about whether the threshold test in Rice & Asplund had been satisfied. On that basis,

Mr Jackson submits that the father's application was wholly unsuccessful. Mr Jackson emphasises that even the father admitted to the need to withdraw the proceedings by 19 January 2007.
As Mr Jackson correctly pointed out, the mother was required to appropriately respond to the proceedings even though, it is probably true to say, they were destined to fail.
The submissions filed by Mr Corish, on behalf of the father, also emphasised the background of the litigation, the difficulties that he asserts the father experienced in spending time with [X], and some other issues that probably were not of much assistance to me in determining the costs issue. However, he does make a number of strong submissions on behalf of the father. The proceedings on 20 December 2006 were put to good use and orders were made by consent including one that rectified a serious deficiency in the 2005 orders.
Mr Corish correctly points out the mother herself was seeking to vary the orders, albeit in response to the father's application. He points out that even on 2 February 2007 negotiations resulted in the making of further consent orders.
The thrust of the submissions made by Mr Corish on behalf of the father are that the mother was an active participant in the proceedings, the mother willingly consented to variations of the orders on both times the matter was in Court and, the mother received benefits from what transpired even though she now asserts that costs should be paid.
Section 117(2A) refers to a number of matters that I need to consider in determining whether a costs order should be made. It is clear that for the purposes of paragraph (e) of the above provision the father has been unsuccessful, but I think it would be unfair to say that he has been "wholly unsuccessful" because, after all, even the mother agreed to variation of the orders. However, paragraph (c) of the above provision also refers to the conduct of the parties to the proceedings, and in this regard I think it is appropriate to note that the mother herself sought to vary the orders sought by the father and this relief was not framed in the alternative, i.e. the orders she sought were not premised on the outcome of any Rice & Asplund application.
In short, the mother wanted something out of these proceedings as well. Not only did she want something out of the proceedings but the consent orders made on both occasions when it was in Court indicate that she actually received something out of the proceedings. For her to now seek costs on the basis of the lack of necessity for these proceedings is strangely incongruent with the receipt of benefits to her as a result of the proceedings.
There is a legal maxim to the effect that one cannot take the benefit of the deed, without the burden of the deed. The same applies in this context. The mother cannot complain about the burden imposed on her of proceedings that she now asserts were unnecessarily commenced, but nonetheless receive the benefits flowing to her as a result of the variations to the orders that were made.
Accordingly, the just outcome in this case is that each party pay their own costs.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate:

Date: 7 June