Apuzzo & Apuzzo (No 4)
[2023] FedCFamC1F 843
•5 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Apuzzo & Apuzzo (No 4) [2023] FedCFamC1F 843
File number(s): BRC 9896 of 2018 Judgment of: JARRETT J Date of judgment: 5 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where final order varied pursuant to r 10.13 – Where respondent sought further amendment consequential to other amendments – Where respondent failed to establish the orders did not reflect the intention of the Court – FAMILY LAW – COSTS – Where errors in the order were apparent on its face – Where respondent unreasonably refused to negotiate or mediate to resolve the errors – Costs order made in favour of applicant Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 10.13
Division: Division 1 First Instance Number of paragraphs: 28 Date of last submission/s: 22 August 2023 Date of hearing: By submission Place: Brisbane Solicitor for the applicant: OMB Solicitors The Respondent: Making written submissions on her own behalf ORDERS
BRC 9896 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR APUZZO
Applicant
AND: MS APUZZO
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
5 OCTOBER 2023
THE COURT ORDERS THAT:
1.The respondent pay the applicant’s costs of and incidental to these proceedings fixed in the sum of $4,900.
2.Otherwise, all outstanding applications are dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
On 23 June, 2023 the applicant filed an application seeking amendment under r 10.13(e), (g) and/or (h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 of final orders I made on 22 December, 2022.
The application was heard and determined on its first return date, 8 August, 2023. I determined that there had been errors and oversights in the orders made on 22 December, 2022 such that the orders did not reflect the intention of the Court. I made orders in line with the applicant’s application.
Following the pronouncement of the orders I made on 8 August, 2023 and my oral reasons for judgment, two things happened. First, the applicant sought an order for costs. Second, the respondent submitted that due to amendments made to the time the children would be spending with each party during school holidays, there needed to be a consequential amendment to paragraph 9(a) of the orders. I directed the applicant to file written submissions on both of the above issues by 15 August, 2023 and the respondent to file submissions in response by 22 August, 2023.
There was no direction to file submissions in reply. Nonetheless, the applicant filed submissions in reply on 28 August, 2023. The first five paragraphs of those submissions argue that because the respondent’s position on 8 August, 2023 was that paragraph 9(a) should be removed, the orders she sought in her submissions of 22 August, 2023 that paragraphs 9(a)(i) and (ii) be reversed represented a change of her position that justified the applicant filing submissions in reply. This is incorrect for two reasons. First, the order of 8 August, 2023 directed the parties to file written submissions as to “whether there should be a consequential amendment to paragraph 9(a) of the orders of 22 December, 2022”. The applicant was therefore directed to file submissions as to whether paragraph 9(a) should be amended in any sense, not just by removal of it in its entirety. Second, the prospect of reversing paragraph 9(a)(i) had already been raised at the hearing of the matter on 8 August, 2023. The applicant was therefore alive to the issue.
On that basis, I have not had regard to the applicant’s submissions in reply filed 28 August, 2023 apart from reading the first five paragraphs to ascertain why the applicant had filed submissions in reply.
Paragraph 9(a) of the orders of 22 December, 2022 reads:
9. All children shall spend time with the parties on the following special occasions as agreed between the parents and failing agreement as follows:
(a) for Christmas:
(i)from 4.00pm Christmas Eve until 4.00pm Boxing Day in even numbered years with the respondent and in odd numbered years with the applicant; and
(ii) the parent in whose care the children are for Christmas Day shall facilitate a telephone call from the children (and each of them) to the other parent on Christmas Day at a time as agreed between the parents in writing or failing agreement at 10.00am.
Pursuant to the orders of 22 December, 2022 as amended on 8 August, 2023, the children spend the first half of the Christmas school holidays with the applicant in odd-numbered years, and with the respondent in even-numbered years. They spend the second half of those holidays with the other party. Half of the school holidays is determined with reference to the actual school holiday period of the school the children are attending.
The respondent’s submission was that paragraphs 9(a)(i) and (ii) should be reversed so that the children spend Christmas Day with the party with whom they are not already spending time for the lead up to Christmas and the first half of the school holidays. It is difficult to see how paragraph 9(a)(ii) could be reversed as its text refers to wherever the children are then spending time. I presume then that the respondent seeks a reversal of paragraph 9(a)(i).
The applicant submitted that the children should remain in the care of the party with whom they spend the first half of the holiday period for the Christmas period. I noted at the hearing on 8 August, 2023 that Christmas occurs during the first half of the school holidays. This would render paragraph 9(a)(i) completely redundant. The applicant, in his submissions, states that this is true for Queensland Gazetted school holidays (a period of some six weeks), but that the holidays for the school attended by the children are for a period of some eight and a half weeks and vary from time to time. The applicant says that this means the half-way point of the holidays would frequently fall on Christmas Eve, Christmas Day or Boxing Day, thus necessitating paragraph 9(a)(i) to ensure continuity of the children spending time with one parent for that entire period.
The reasons for judgment dated 22 December, 2022 do not give specific reasons for the making of order 9(a)(i).
I was not furnished with evidence from either party about the holiday period for the school attended by the children. I can take judicial notice of the fact that private schools, such as the school attended by the children, often have holiday periods that differ from the Queensland Gazetted school holidays. Whilst I cannot be satisfied of when that particular holiday period is, there seems to be justification for the making of order 9(a)(i). The respondent has not satisfied me that order 9(a)(i) does not reflect the intention of the court: r 10.13(1)(e). I will therefore not amend the order.
The applicant applied for the respondent to pay his costs of and incidental to the application. The applicant details significant efforts to resolve the errors in the orders of 22 December, 2022 with consent of the respondent and without the need to make a further application to the Court. The applicant did so as early as 22 December, 2022, the same day judgment was delivered. He did not receive a response from the respondent until 15 February, 2023, in which the respondent indicated she would not attend mediation nor consent to amending the orders.
The respondent also exploited what was a clear error in the orders to retain the children in her care for the entirety of the Easter school holidays in 2023.
The applicant thereafter filed this application in June, 2023. The matter was not resolved between the parties, and a hearing was required on 8 August, 2023.
Section 117(1) of the Family Law Act 1975 (Cth) sets out that ordinarily each party shall bear their own costs of proceedings under the Act. Section 117(2) states that the Court may, if it is of the opinion that there are circumstances that justify it in doing so, make such order as to costs as it considers just. Considerations for making that order are set out in s 117(2A):
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(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.
I was not furnished with evidence about the financial circumstances of either of the parties, although each makes assertions about their respective financial positions. The respondent submits that the parties are in a similar financial position having regard to the property settlement between them. She points out that the applicant is a professional. Each says in their submissions that they are not in receipt of a grant of legal aid.
The majority of the respondent’s submissions are directed towards s 117(2A)(c). She submits that the applicant’s conduct during these proceedings has been vexatious and has had the effect of extending the case over nearly 5 years. These submissions are misguided. The proceedings were finalised on 22 December, 2022. This application arises only out of the orders made on 22 December, 2022. The only conduct of the parties which concerns me is their conduct since 22 December, 2022 in relation to the apparent errors in the orders and the attempt to resolve them.
The respondent submitted that the applicant’s failure to appeal the orders and conduct in bringing the slip rule application some seven months later was an abuse of process. I do not accept this submission. The errors in the order were clear on its face. It would have been inappropriate to lodge an appeal of the orders without first seeking to amend the orders under r 10.13 either by consent or by application. This is exactly the process the applicant undertook.
The respondent submitted that annexure 13 to the applicant’s affidavit was misleading because it labelled telephone calls as changeovers. It is difficult to see how, even if the annexure did so mislabel, it could be classed as misleading or in any way be relevant to a costs order. However, a reading of the annexure demonstrates that, in fact, it does not mislabel telephone calls as changeovers. The annexure refers to changeovers but the total at the bottom of the table very clearly does not include telephone calls. This submission is rejected.
The last relevant submission made by the respondent was that the applicant failed to accept a reasonable offer to settle the proceedings. That “offer” is annexure 10 to the applicant’s affidavit. This letter does not represent a reasonable offer to settle the proceedings. It accepts only one of the amendments sought by the applicant. Several more of the amendments were consented to by the respondent on 8 August, 2023. The letter also refuses to engage in mediation and makes inflammatory statements such as suggesting the applicant obtain mental health assistance. The letter was plainly not drafted in a bona fide attempt to resolve the dispute.
The respondent’s conduct necessitated and prolonged the proceedings. If she had attempted to resolve the dispute in good faith, it is likely the matter would not have required a hearing on 8 August, 2023. I take her conduct into account under s 117(2A)(c).
Whilst the respondent did not file a response, she appeared on 8 August, 2023 and opposed, initially, the making of all amendments sought by the applicant except for the amendment to order 6(b)(ii). She conceded several more amendments when taken through them individually but remained in opposition to others. Orders were made substantially in terms of the orders sought by the applicant. In that sense, the respondent has been wholly unsuccessful in resisting the application. I take that into account pursuant to s 117(2A)(e).
I find that there are circumstances justifying making an order for costs. In all the circumstances, I am satisfied that it is appropriate for the respondent to pay the applicant’s costs of and incidental to these proceedings.
The applicant filed a costs notice on 7 August, 2023. His costs incurred with his solicitor to that date were $8,230.04. There were further estimated costs of $3,000 for preparation and appearance at the hearing on 8 August, 2023. His submissions reduce this figure to $1,950. His submissions also refer to process server fees of $279.62, mediator fees of $175 and counsel fees of $990 to settle court documents. I do not have any evidence that any of these costs were actually incurred.
The costs estimate suggests that to the conclusion of a hearing on the application (which on the applicant’s case was a simple application under the slip rule) the total costs to be incurred would be $32,000. This is a staggering sum for such an application.
The amounts claimed by the applicant are clearly solicitor and own client costs, not party and party costs. Having regard to the scale of costs prescribed by the Federal Circuit and Family Court (Family Law) Rules 2021, a reasonable sum for costs is $4,900. I derive that sum in the following way:
(a)Drafting operative parts of application (excluding claim for interim relief in identical terms to final relief claimed) (approx. 423 words) $100.00
(b)Drafting operative parts of supporting affidavit (approx. 6500 words) $1530.75
(c)Producing both documents $555.91
(d)Photocopying annexures and documents for service $200.00
(e)Time spent by lawyer on work requiring the work of a lawyer and attendance at court on hearing the balance
I also do not consider that the costs of counsel settling court documents were reasonably incurred. Court documents are frequently settled by solicitors and this application was not so complex as to justify the involvement of counsel in settling it.
The applicant’s costs I fix at $4,900. Considering the conduct of the respondent in this application, I consider it appropriate that she should pay the applicant’s costs fixed in that sum.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 5 October 2023
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