Tadeusz and Todd (No. 2)

[2018] FamCA 695

FAMILY COURT OF AUSTRALIA

TADEUSZ & TODD (NO. 2) [2018] FamCA 695

FAMILY LAW – COSTS – where both parties contributed to the complexity and confusion of the interlocutory hearing; no justification for an order for costs.

Family Law Act 1975 (Cth)

Tadeusz & Todd [2018] FamCA 422

APPLICANT: Mr Tadeusz

RESPONDENT: Ms Todd

FILE NUMBER: MLC 1947 of 2018

DATE DELIVERED: 10 September 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: By way of written Submissions

SUBMISSIONS RECEIVED FROM

SOLICITOR FOR THE APPLICANT: Gadens Lawyers

SOLICITOR FOR THE RESPONDENT: Melbourne Family Lawyers

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Orders

1. That the wife’s application by way of written submission dated 20 June 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tadeusz & Todd (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1947 of 2018

Mr Tadeusz

Applicant

And

Ms Todd

Respondent

REASONS FOR JUDGMENT

1. Ms Todd (“the wife”) seeks an order for costs against Mr Tadeusz (“the husband”) arising out of an interlocutory hearing in the Judicial Duty List on 6 June 2018.

2. Provision was made for both parties to file written submissions.  I refer to them below.  Each was drawn by counsel.

3. The proceedings in the Duty List included the husband seeking interim property orders as well as a variety of orders in relation to renovation works to be undertaken on the parties’ former home.  The wife cross-applied for renovation works orders as well as the sale of that home.  She also sought parenting orders to enable the parties’ daughter aged 11, to travel to New Zealand for a holiday.  Another parenting order sought was for sole parental responsibility in relation to that child's education.

4. Some issues between the parties were settled between themselves.  The wife now seeks $25,183 costs against the husband.  That sum includes counsel’s fees and expenses of a cost consultant.

5. The husband opposed any order for costs or, if the court was so minded to make an order, for a sum much less than $25,183.

6. In my view, there is no basis to make an order for costs.

7. Section 117 of the Family Law Act 1975 (Cth) (“the Act”) provides that in proceedings under the Act, each party shall bear his or her own costs. Section 117(2) however provides that if the court is of opinion that there are circumstances to justify it in doing so, it may, subject to (particularly) sub-section (2A) make such order for costs as it considers just. There must therefore be some reason to depart from the principle that each party bear their own costs and in any event, any such order must be just having regard to all of the circumstances.

8. The wife submitted that the husband’s approach to the issues was “based on a strategy designed to frustrate and delay the resolution of issues before the court”.  She went further and submitted that the husband unnecessarily caused her to incur legal costs.  In relation to his attendance at the parties’ home from which he had been barred not only by an intervention order but also by an order favouring the wife in respect of exclusive occupancy, the husband wanted to be involved in the renovations for the ultimate purposes of a sale.  In respect of this application, the wife submitted that his application to exclude her during those periods of time was extraordinary and unrealistic.  It was submitted that his desire to supervise these renovations was “fanciful”.  All of this obliged the wife to prepare responding material including about matters that the husband did not ultimately pursue.

9. In respect of the money matters, the husband sought a payment from the wife of $200,000 which in the circumstances, the wife described as indicating an attitude of self-indulgence.  A strong submission was made that the husband was motivated by greed.

10. Counsel for the husband on the other hand submitted that the wife’s submissions had no evidentiary basis nor were they supported by the published reasons for judgment.  I agree.  Even a cursory examination of the published reasons indicates there was not a sufficient basis to make the orders that either party wanted. 

11. In his submissions, the husband pointed to the fact that agreement had been reached at the hearing including in relation to discovery making it more difficult to discern just what portion of the costs incurred related to the contested issues.  The case of the wife presented at the hearing was equally perplexing.  Notwithstanding the matter was to be heard in the Duty List, the body of the affidavit was 40 pages long and there was a bundle of annexures exceeding 60 pages.  That material included issues that could not have influenced the outcome of an interlocutory hearing where the evidence could not have been tested.  Thankfully, the court was not obliged to examine all of those prurient details and it would not have been possible in such a busy duty list.

12. As will be evident from reading the reasons published on 13 June 2018, I considered both applications were puzzlingly unnecessary.  In my view however, there ought not be costs order made here at all because I find there are no justifying circumstances which favour the wife even with some criticism of the husband.

13. There was nothing unusual or difficult about those proceedings. As is evident from my published reasons [2018] FamCA 422 the parties had each drawn a wish list of things that they desired to be satisfied through court orders. However, the well-settled jurisprudence of this court would have made it self-evident how those issues were to be determined (at least that should have been evident to the lawyers) at an interlocutory level. Indeed as can be seen from the published reasons, the parties were able to compromise some of them.

14. In my view, considerable time, money and effort was wasted on this dispute but it is not clear to me who was responsible.  For example, the husband opposed the wife’s international travel because of what he described as the potential for upheaval for the 11 year old child.  This was for a holiday and the only person who could possibly have benefited was the child.  There was certainly no risk, nor was it so asserted, of the child not being returned.  In respect of the participation in the renovations, the husband’s blasé attitude ignored the fact that he had been excluded from attendance at the property and there was no clear indication from any evidence presented or drawn to the court’s attention as to how these renovations would substantially increase his ultimate entitlement.  Whilst the husband may have desired to rely upon an affidavit of an estate agent, just what position he was adopting remained unclear. 

15. Lest it be thought that the husband alone contributed to this confusion and complexity, the wife also sought orders that she be entitled to decide the schooling for the parties’ child and the husband opposed that.  My views about the possibility of that outcome could be seen from quoting from the published reasons as follows:

    10.The school enrolment issue is equally simple.  It is not suggested that the wife should have the sole responsibility for making the decision as to where [X] attends school but rather that each party should be at liberty to enrol her and when the appropriate time comes and an offer is made, the determination of whether or not that school is the appropriate one can be made.  Until such time as the court orders otherwise, parents have the responsibility for making decisions about the future education of their children.  The dispute about the New Zealand travel gives me little confidence that there will be agreement between the parties which is child-focused.  In those circumstances, I consider it is appropriate for [X] to be enrolled at least at this stage where the wife wants her to attend and to the extent the parties cannot agree on that or any other school in the future, if an offer is made, the court will have to determine the question of parental responsibility rather than the question of attendance at a particular school.  In the circumstances, orders should be made.

16. Thus, the wife was ultimately successful in a number of matters but she hardly could be seen to have been wholly successful.

17. Having rejected the strident criticisms, I consider the husband did not approach the interlocutory hearing in such a way that issues that need a determination could be readily distilled.  I can only presume that the parties’ disdain for one another has meant that objective advice from lawyers fell on deaf ears.

18. Even taking into account such matters as the disparity in financial circumstances (about which I can make no finding without the evidence being tested) and the matters relating to “conduct” as a litigant, I find there are no justifying circumstances here to depart from the principle that each party should pay their own costs. 

19. Accordingly, the wife’s application for costs against the husband is dismissed.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 10 September 2018.

Associate:

Date:  10 September 2018