Adams v Watcher - [2021] NZHC 432

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments. The parties’ names have been altered to allow for publications in law reports.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2020-443-000042

[2021] NZHC 432

BETWEEN
ADAMS

Appellant

AND

WATCHER

Respondent

Hearing: 1 March 2021

Appearances:

Appellant in person

C Gelston for the Respondent

Judgment:

9 March 2021

JUDGMENT OF COOKE J

[1] Mr Adams appeals from a judgment of the Family Court in which he was ordered to pay Ms Watcher the amount of $29,903.46 in indemnity costs.1 The underlying proceedings concerns disputes between them as to the care of their two children under the Care of Children Act 2004 (the “Act”). They separated in December 2016. The decision of the Family Court awarding Ms Watcher costs on an indemnity basis followed two substantive judgments of the Court, one dated 3 June 2020,2 and the second dated 7 August 2020.3 At the end of the judgment of 7 August

1      Watcher v Adams [2020] NZFC 8417. These are not the parties’ real names.
2      Watcher v Adams [2020] NZFC 3495.
3      Watcher v Adams [2020] NZFC 5927.

ADAMS v WATCHER [2021] NZHC 432 [9 March 2021]

2020 the Judge indicated that he would consider written submissions as to costs, and after submissions were received on 5 October 2020 he issued the indemnity costs orders.

[2] Mr Adams represented himself on this appeal. I earlier gave his (newly instructed) counsel leave to withdraw as counsel, although prior to that time counsel had filed written submissions which I have taken into account. His withdrawal as counsel is consistent with a pattern that has arisen with respect to Mr Adams, who has had three previous counsel. He has had periods representing himself as a consequence.

Background and decision under appeal

[3] I will not address the full background to the proceedings in the Family Court, which involve some complexity. It is set out in comprehensive terms in the judgment of 7 August 2020.

[4] The disputes between Mr Adams and Ms Watcher have concerned the care and contact arrangements in relation to their children. Ms Watcher first made an application for a Parenting Order in New Plymouth in June 2018. In March 2019, a consent memorandum was signed setting out interim care and contact arrangements, although Mr Adams declined to allow that agreement to be converted into a Court Order. In October 2019, Ms Watcher applied without notice for a Temporary Protection Order and an Interim Parenting Order. Mr Adams defended the Interim Parenting Order, but not the Temporary Protection Order. The Protection Order was made final on 30 January 2020.

[5] In February 2020, Mr Adams then applied to discharge the Protection Order. This led to the first…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adams v Watcher

Details

AGLC: Adams v Watcher [2021] NZHC 432
Case: [2021] NZHC 432
Decision Date: 9 March 2021

CaseChat Overview and Summary

Adams appeals from a Family Court judgment ordering him to pay Watcher $29,903.46 in indemnity costs, related to disputes over the care of their two children under the Care of Children Act 2004. The proceedings have been complex, with various interim parenting orders and protection orders being made, and Adams making numerous applications which were withdrawn at the last moment. The Family Court Judge concluded that Adams had acted improperly and awarded Watcher indemnity costs. Adams appeals, arguing that the Family Court did not properly apply the principles regarding costs in family law proceedings.

The High Court noted that the Family Court has a discretion in awarding costs in family law matters, but that this discretion must be exercised carefully, particularly in light of the welfare of the children being the paramount consideration. The Court identified three related errors in the Family Court’s approach. First, there was no analysis of whether a normal award of costs, or an increase in scale costs, might be appropriate before proceeding to an award of indemnity costs. Second, the award was not limited to particular steps in the proceeding which involved unreasonable behaviour. Third, the award did not consider whether some of the legal expenditure might not be associated with the proceeding or matters incidental to it. The Family Court’s approach was inconsistent with the need to continue to engage Adams in the proceedings to secure the best outcome for the children.

The appeal was allowed, and the costs award was set aside and replaced with an award of $12,892.50. This amount represents half the scale costs associated with the hearing of the substantive matter in July 2020. Adams is likely to be awarded costs on this appeal, calculated on a 2B basis for filing the appeal and 2A basis for preparing written submissions.

Orders