Apuzzo & Apuzzo
[2022] FedCFamC1A 176
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Apuzzo & Apuzzo [2022] FedCFamC1A 176
Appeal from: Apuzzo & Apuzzo [2022] FedCFamC1F 330 Appeal number(s): NAA 66 of 2022 File number(s): BRC 9896 of 2018 Judgment of: ALDRIDGE, KARI & BRASCH JJ Date of judgment: 26 October 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the father seeks the costs of a discontinued appeal – Where the mother discontinued the appeal upon the primary judge correcting the relevant orders – Consideration of factors in s 117(2A) of the Family Law Act 1975 (Cth) – Where there is no basis for a costs order to be made against the mother – Application dismissed – The father is to pay the mother’s costs of the application. Legislation: Family Law Act 1975 (Cth) s 117 Cases cited: Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664; [2015] FamCAFA 157
Robinson and Higginbotham (1991) FLC 92-209; [1991] FamCA 5
Number of paragraphs: 65 Date of hearing: 26 September 2022 Place: Brisbane, delivered in Sydney Counsel for the Applicant: Mr Baston Solicitor for the Applicant: Advance Family Law The Respondent: Litigant in person ORDERS
NAA 66 of 2022
BRC 9896 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR APUZZO
Applicant
AND: MS APUZZO
Respondent
order made by:
ALDRIDGE, KARI & BRASCH JJ
DATE OF ORDER:
26 October 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 20 July 2022 be dismissed.
2.The applicant father pay the costs of the respondent mother fixed in the amount of $1,873.64 within 21 days.
Note: The form of the order is subject to the entry in the Court’s records.
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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Apuzzo & Apuzzo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE, KARI & BRASCH JJ:
Introduction
This is an application for costs of a discontinued appeal.
In short, the parties to these proceedings have three children born in 2010, 2009 and 2007. By application filed 14 March 2022, Mr Apuzzo (“the father”) sought a recovery order against the two youngest children. On 4 April 2022, the primary judge made a recovery order against all three children. Ms Apuzzo (“the mother”) filed a Notice of Appeal challenging the order in relation to the eldest child.
The mother sought a stay of the orders by filing an Application in a Proceeding on 3 June 2022. The primary judge discharged the recovery order relating to the eldest child on 14 June 2022 and on 23 June 2022 the mother discontinued the appeal.
The father has sought costs in relation to the discontinued appeal, together with the costs of the mother’s unsuccessful Application in the Appeal to expedite the appeal.
For the reasons that follow, the Court does not consider that there should be any costs order in favour of the father and that he should pay the mother’s costs.
Background
In order to understand the submissions made in the application, it is necessary to set out a little more of the relevant history.
The trial in the substantive proceedings was initially heard in August 2020 and judgment was, and remains, reserved.
Whilst judgment was reserved, the parties each filed interlocutory applications. The mother’s application was to re-open the evidence in the proceedings and for the preparation of a further Family Report. The father’s application included an application that a recovery order issue in relation to the two younger children.
The primary judge heard the parties’ interlocutory applications on 22 March 2022.
On 4 April 2022, the primary judge delivered reasons and made orders. The orders included orders permitting the mother to re-open the evidence and for an updated Family Report to be prepared.
As we have said, the primary judge made a recovery order in relation to all three children.
That order however was tempered by a further order as had been sought by the father that the recovery order “lie in the Registry and shall issue for execution upon the filing of an affidavit from the solicitor for the Applicant Father that the children are not spending time with him in accordance with the orders of 14 June, 2019” (Order 9).
The reasons of the primary judge for making the recovery order were brief and in the following terms:
12. At the moment, there are presently orders in place. There is no application before me to set aside, discharge or vary those orders. Indeed, the orders that are in place are the very orders that the mother asked the Court to make at the conclusion of the trial. She says now that situations have occurred and the factual matrix is different such that those orders might not be appropriate. At least that is what I think she says but that remains to be determined. Part of a parent’s parenting capacity is simply not to be a passive facilitator. It is entirely appropriate that there be a recovery order issued and that it be acted upon if the orders that are presently in place are not complied with.
While the mother sought to appeal the suite of orders relating to the recovery order in relation to all three children, it became quickly apparent to the father that her sole and only complaint was that the recovery order should not have been made in relation to the eldest child. That is obvious from the terms of Ground 2 of the Notice of Appeal.
It is clear that the mother’s appeal had considerable merit as an order had been made that had not been sought.
This position of the mother was plain because on 11 April 2022 (some seven days after the recovery order had been made), there was a flurry of written communications on the very topic of the eldest child’s inclusion in the recovery order.
That series of communication commenced with the mother writing to the father’s solicitors by email at 9.08 am identifying that a recovery order had been made in relation to the eldest child despite there being no application in that regard. In that correspondence the mother:
(a)Sought an undertaking from the father that he would not enforce the recovery order in relation to the eldest child;
(b)Identified that failing such an undertaking, she would bring an urgent stay application; and
(c)Proposed a joint letter be sent to the primary judge requesting that the eldest child’s name be removed from the recovery order that had been made on 4 April 2022.
At 1.25 pm, the mother wrote by email to the primary judge’s chambers (copying in the father’s solicitors), asking that the recovery order be amended under the slip rule to remove the eldest child’s name, in circumstances where no such order had been sought by the father.
At 1.35 pm, the mother sent a further email to the father’s solicitors chasing a response to her earlier email identifying that unless she received a favourable response from the father she would lodge an appeal.
At 2.37 pm, the mother understood that her attempt to have the primary judge amend the terms of the recovery order under the slip rule was unsuccessful. The email from the primary judge’s chambers advising the mother of the primary judge’s position concluded with the following words:
No further correspondence will be entered into regarding this matter.
(Mother’s affidavit filed on 12 August 2022, Annexure “…07”)
While the timing of the father’s response is unclear, his solicitors ultimately responded to the mother’s email sent at 9.08 am that morning in the following terms:
As Orders, dated 14 June 2019, relate to all children, the Recovery Order outlined in Orders, dated 4 April 2022 similarly names all children and from our perspective, no error has been made by the Court. We can confirm however, that our Client has no intention at this point in time of triggering the Recovery Order on the basis of you not facilitating time between [the eldest child] and her Father.
(Mother’s affidavit filed on 12 August 2022, Annexure “…05”)
The mother filed her Notice of Appeal on 13 April 2022.
On the same day, the mother also filed an Application in an Appeal seeking orders that the hearing of the appeal be expedited (“the expedition application”).
On 26 April 2022, the day prior to the hearing of the expedition application, the father’s solicitors wrote to the mother proposing that the eldest child’s name be removed from the recovery order, that the mother withdraw her appeal and that the parties each bear their own costs.
However, that offer to settle the appeal appeared to be conditional on a further order being made that there be new orders for time spending between the father and the eldest child.
The expedition application was heard by the appeal judicial registrar on 27 April 2022, and reasons were published on 28 April 2022. The expedition application was unsuccessful.
The father sought an order for costs in relation the mother’s unsuccessful expedition application. That costs application was reserved to the hearing of the appeal.
On 17 June 2022, the mother wrote to the father’s solicitors indicating that in circumstances where the primary judge had discharged the recovery order relating to the eldest child, she was prepared to discontinue the appeal on the basis that each party bear their own costs.
On 21 June 2022, the mother chased the father’s solicitors for a response to her correspondence of 17 June 2022 identifying that in the absence of a response by close of business that day, she would discontinue the appeal.
The mother filed her Notice of Discontinuance in the appeal on 23 June 2022.
On 29 June 2022, the father’s solicitors wrote to the mother claiming costs in the appeal in the amount of $4,500.
The Costs Application
The father’s formal application before the court is that the mother pay his costs on an indemnity basis in relation to both the appeal and in relation to the expedition application.
The father has filed a schedule of costs identifying:
(a)That his costs of appeal (both the substantive appeal and the expedition application) pursuant to the scale are an amount of $2,678.98, and on an indemnity basis an amount of $5,093 (including GST), together with counsel fees of $3,300; and
(b)That his costs in relation to the costs application are $1,157.98 pursuant to the scale, and on an indemnity basis are $2,236.30 (including GST), together with counsel fees of $4,500.
During the hearing of the costs application, the father’s counsel abandoned the application for costs on an indemnity basis.
The Legal Principles
Cost applications in respect of proceedings under the Family Law Act 1975 (Cth) (“the Act”) are governed by s 117 of the Act.
The factors that are to be considered when contemplating the making of a costs order are those set out in s 117(2A) of the Act; albeit the court may give such weight as it considers appropriate to any relevant factor (Medlon & Medlon (No 6) (Indemnity Costs) (2015) FLC 93-664 at [24]).
Discussion
Given the terms of s 117 of the Act, it is appropriate that consideration turn to each of the relevant factors in s 117(2A).
The parties’ respective financial circumstances
Neither of the parties adduced any evidence as to their financial circumstances.
The father has identified in his written submissions that on 25 August 2020 a final order for property settlement was made, which provided for the mother to receive from him a payment in the amount of $2,168,400.
Accordingly, the Court infers that the financial circumstances of the parties are not ones that would mitigate against the making of a costs order.
Conduct of the parties in relation to the proceedings
In light of the fact that the father had not sought a recovery order in relation to the eldest child, it is not surprising that the mother sought to appeal the recovery order that was made.
Moreover, it must be said that in all of the circumstances the appeal had considerable merit.
To the mother’s credit, she attempted to pursue every possible avenue to achieve that which was ultimately achieved when the primary judge discharged the recovery order as it related to the eldest child on 14 June 2022. Those attempts included:
(a)Her written request that the father give an undertaking not to enforce the recovery order in relation to the eldest child;
(b)Her written request of the father to agree to the discharge of the recovery order as it related to the eldest child;
(c)Her written request of the father that there be a joint request made to the primary judge to vary the terms of the recovery order to remove the eldest child; and
(d)Her written request to the primary judge that the order be corrected under the slip rule.
In the absence of a favourable outcome in relation to any of those attempts, the mother had no other option but to appeal the terms of the recovery order.
While the grounds of appeal argued by the mother appear to complain about the making of the recovery order in relation to all three children, as has been identified, the mother’s focus was always that the recovery order should not have been made in relation to the eldest child.
Should there be any doubt that this was the focus of the mother’s appeal, the fact that she discontinued her appeal immediately after the primary judge corrected the recovery order, puts that issue beyond doubt.
What is however of significance is that having obtained the benefit of a recovery order in relation to all of the children, the father appears to have attempted to maintain that order presumably to gain some form of tactical advantage.
This conclusion is to be drawn from three matters:
(a)Firstly, in correspondence from his solicitor dated 11 April 2022, the father commented that the recovery order in relation to the eldest child had not been erroneously made, when on any view that was not correct as it was not an order he had sought.
(b)Secondly, in that same correspondence, the father couched his position that he would not enforce the recovery order as it related to the eldest child with the words “at this point in time”, which begs the question of when or under what circumstances that position might change.
(c)Thirdly, in correspondence from his solicitors dated 26 April 2022, when the father finally proposed that the recovery order in relation to the eldest child be discharged, he simultaneously sought to achieve new orders for time spending with her, in circumstances where the two questions were entirely separate.
In addition, it is of relevance that the father failed to promptly respond to the mother’s proposal of 17 June 2022 that the appeal be discontinued on the basis that each party bear their own costs. The response from the father ultimately came 12 days later, by which time the mother had already filed her Notice of Discontinuance.
In all of the circumstances, these factors strongly mitigate against the making of any costs order in favour of the father.
Whether any party has been wholly unsuccessful in the proceedings
In Robinson and Higginbotham (1991) FLC 92-209 at 78,417, Nygh J stated that the concept of being wholly unsuccessful is “a situation in which the proceedings as a whole have been unsuccessful. In other words, in which an application which was without merit has been dismissed”.
For all of the reasons which have already been identified, it cannot be said that the mother was wholly unsuccessful and/or that her appeal was without merit.
The focus of the mother’s appeal was the recovery order in relation to the eldest child, which was ultimately discharged by the primary judge, thus obviating the need for the appeal.
Whether an offer has been made in writing to settle the proceedings
There can be no criticism of the mother and her attempts to resolve issues pertaining to the appeal in an expeditious manner.
All of the communications on 11 April 2022 make it clear that the mother attempted to avoid any need to appeal the orders of 4 April 2022.
Rather than being met with a concession that the primary judge had overstepped, the mother was met with a response that the orders had been properly made. This left the mother with no choice but to appeal the orders.
It is clear that on 17 and 21 June 2022 the mother properly attempted to withdraw the appeal on the basis that the parties each bear their own costs; this being the logical corollary of the orders made on 14 June 2022 discharging the recovery order as it related to the eldest child.
Again, rather than being met with the appropriate concession from the father given all of the prevailing circumstances, not only did he delay responding to the mother’s request, but he also insisted that she pay his costs.
In all of the circumstances of this case, the father’s offer is not one that should be afforded any weight.
Such other matters as the Court considers relevant
A further relevant factor is the manner in which the costs application has been pursued by the father.
In all of his documents filed in relation to his costs application, the father sought that the mother pay costs on an indemnity basis. This application was, however, quickly abandoned without explanation during the hearing. The Court could only infer that the reason for doing so was because the father’s counsel identified that there was no proper foundation for the making of an order for costs on an indemnity basis.
However, the significance of this late change in position, is that until the hearing, the mother was being asked to meet an application for indemnity costs.
In addition, it is also of some concern to the Court that the father has incurred costs pursuing his cost application which are commensurate with the costs he incurred in relation to the appeal. This on any view appears entirely disproportionate.
Conclusion
In all of the circumstances that have been identified in these reasons, the Court does not consider that there is any basis to make an order for costs in favour of the father.
In light of the matters that have been identified in these reasons, and in circumstances where the father has been wholly unsuccessful in his costs application, the Court considers it appropriate that the father pay the mother’s costs in relation to the appeal, fixed in the amount of $1,873.64.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Kari & Brasch. Associate:
Dated: 26 October 2022
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