Talcott and Talcott (No.2) - [2013] FMCAfam 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TALCOTT & TALCOTT (No.2)

[2013] FMCAfam 295

FAMILY LAW – Parenting – costs – where one party has acted unilaterally, arbitrarily and contrary to an agreement they asked the Court to note.

Family Law Act 1975, s.117
Federal Magistrates Court Rules 2001

Applicant:

MR TALCOTT

Respondent:

MRS TALCOTT

File Number:

SYC 2163 of 2009

Judgment of:

Altobelli FM

Hearing date:

7 March 2013

Date of Last Submission:

28 February 2013

Delivered at:

Sydney

Delivered on:

7 March 2013

REPRESENTATION

Counsel for the Applicant:

Mr Kazzi

Solicitors for the Applicant:

Barkus Doolan Kelly

Solicitors for the Respondent:

Vizzone Ruggero & Associates

ORDERS

The Mother pay the Father’s costs in the sum of $7,735. Such payment to be made within 90 days.
The Applicant’s legal representative notify the Mother’s legal representative of today’s orders.

IT IS NOTED that publication of this judgment under the pseudonym Talcott & Talcott (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2163 of 2009

MR TALCOTT

Applicant

And

MRS TALCOTT

Respondent

REASONS FOR JUDGMENT

In the matter of Mr Talcott, I provide the following oral reasons. On 18 February 2013, I delivered ex tempore reasons in a dispute between the parents about where X, their 13 year old daughter, will go to school this year. The reasons for judgment were subsequently published as (2013) FMCAfam 158. Matters of background, relevant history, evidence, applicable law, and findings, such as they are, are contained in those reasons. I will simply incorporate all of those by reference.
The orders that I made were consistent with the mother’s proposals and might even be considered by her, in a subjective sense, to ratify what was clearly her unilateral decision. I suggest, however, that a proper reading of my reasons precludes any such convenient rationalisation. The decision is based on what, in the limited evidence available, I adjudged to be in X’s best interests. To the extent that this coincided with the mother’s proposals is probably more of a coincidence than the product of any intention.
It should be noted that I was very critical of both parents, especially their lack of insight, their irresponsible attitude towards their children and their inability to recognise the needs of the children as regards parental conflict. In any event, a cost application arises. Both parties provided written submissions in admirable brevity and focus. The father, in effect, says that the mother was in “blatant disregard” of their agreement in relation to schooling and of her duties pertaining to parental responsibility, and that therefore, this warrants a cost order, especially an indemnity one.
The mother says, in effect, that the father was “wholly unsuccessful” in these proceedings and that, in any event, her financial circumstances strongly contraindicate the making of a costs order against her.
The applicable law is, of course, contained in the Federal Magistrates Court Rules and section 117 of the Family Law Act. In addition, I was referred to some case law in the submissions.
The general principle of section 117 subsection (1) is clear, and this is that each party pays and bears their own costs. However, subsection 2 provides that if the Court is of the opinion that there are circumstances that justify it, the Court may order costs as the as the Court considers just. Subsection (2A) of section 117 contains what is clearly a non-exhaustive list of factors the Court must consider in deciding whether or not to make an order for costs. It is thus clear, for example, that the parties’ financial circumstances are relevant. What is equally clear, however, is that paragraph (a) of subsection (2A) is not a “trump card” or a “get out of jail free” card. It is merely one of the circumstances I must have regard to.
I have regard to the disparity in the financial circumstances of the parties. Yes, the mother is clearly inferior in this regard to that of the father but, as I said, this does not mean that in an appropriate case a costs order might not be made. It probably, however, is highly relevant to the question of quantification. The conduct of the parties in relation to the proceedings is clearly relevant. Here the mother clearly ignored an undertaking to the Court she gave by way of a notation in an order and then she sought to minimise and trivialise its significance.
In this case, the mother chose not to deal with the issues of schooling and child support in 2012 in circumstances where it was blatantly obvious that there was a major dispute with the father and thereby she postponed the inevitable bringing of this matter to a head in the form of litigation which was, indeed, commenced by the father.
Her conduct of the litigation by her contributed to the very unsatisfactory way in which the hearing had to be conducted, particularly its haste and the inability to test any of the evidence that was adduced by the parties. By contrast, the father had no choice but to initiate the application. Otherwise, he would have had to simply accept the mother’s unilateral actions. By contrast to the mother, the father promptly brought this issue to the attention of the Court.
The father’s application was necessitated by the mother’s failure to comply with the undertaking, in the form of a notation, and to act as a parent consistent with one who has either joint or equal shared parental responsibility. It was her unilateral and arbitrary action that necessitated the litigation. Neither party was wholly successful or unsuccessful in this case, and in this regard it should be noted that I made orders limited to 2013 only.
I must consider other relevant matters. This is not the first costs order I have made against the mother in these proceedings. I accept as a relevant matter the potential detrimental effect that a costs order would have on her. Whilst the Court is somewhat sceptical of the potential rehabilitative effect of a costs order on the mother, given that the mother’s previous costs order has not prevented the current application, nonetheless, there are important matters of principle and policy here.
When parents agree to anything and then ask the Court to note their agreement, they can not resile from their agreement arbitrarily or unilaterally. That is what the mother did in this case. To not order costs is hardly a disincentive to ignoring such implied undertakings to the Court. The same applies to arbitrary, unilateral actions such as those taken by the mother in this case.
Yes, it is true, I was very critical of the father for his contribution to this conflict, especially what I described as his “toxic communication”. True it is that, in many ways as discussed in my reasons for judgment, he contributed to the problem. The focus of section 117 is on the proceedings and not conduct generally. This is where his conduct lacks the gravity of impact on the proceedings that the mother’s clearly has.
Having regard to the above, a costs order is appropriate. The mother’s financial circumstances, however, do not justify an indemnity costs order, as tempting as that would be. To order costs on a party and party basis, as assessed or as agreed, would simply leave Mr and Mrs Talcott in a further contest about the quantification of the costs. In the circumstances, I will assess costs under the Federal Magistrates Court Rules as follows.
Noting that the matter came before me on two discrete days, 7 February and 13 February, I assess costs as follows. Firstly, stage one initiating application: $1873. Nextly, the daily hearing fee for half a day on 7 February: $936. Nextly, the daily hearing fee for half a day on 13 February, that is $936. And fourthly, stage five preparation: $3990. The total costs as assessed, therefore, becomes $7735. I have no doubt that this is but a fraction of the father’s actual legal costs. However, in the circumstances, and particularly having regard to the mother’s financial circumstances, it is not appropriate to order indemnity costs, and I am satisfied that the figure of $7735 is appropriate.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Date: 5 April 2013