Parties Dispute Parenting Orders
Apuzzo & Apuzzo [2022] FedCFamC1A 176 (26 October 2022)
The father seeks the costs of a discontinued appeal. The mother discontinued the appeal upon the primary judge correcting the relevant orders. The Court, in making its decision, considered factors in s 117(2A) of the Family Law Act 1975 (Cth).
Facts
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. 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. 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).
Issue
Whether or not the Application of the mother should be granted.
Applicable law
Family Law Act 1975 (Cth) s 117 - provides for the factors that are to be considered when contemplating the making of a costs order.
Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157; (2015) FLC 93-664; [2015] FamCAFA 157 - provides that 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.
Analysis
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. 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.
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. 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.
Conclusion
The Application in an Appeal filed 20 July 2022 be dismissed. The applicant father pay the costs of the respondent mother fixed in the amount of $1,873.64 within 21 days.
