Atkin v Mead - [2025] NZHC 164

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, THE NAMES OF THE PARTIES AND OF THE PERSON UNDER THE AGE OF 18 YEARS WHO IS THE SUBJECT OF THE PROCEEDINGS HAVE BEEN ANONYMISED.

FICTITIOUS NAMES ARE USED. THE DECISION DOES NOT INCLUDE THE NAME OF ANY PERSON, PARTY OR SCHOOL REFERRED TO IN S 11B(4)(a)(ii) OF THE FAMILY COURT ACT

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2024-454-50

[2025] NZHC 164

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against an interlocutory decision on costs

BETWEEN

ATKIN

Appellant

AND

MEAD

Respondent

Hearing: 4 February 2025

Counsel:

Appellant in Person Respondent in Person

Judgment:

13 February 2025

JUDGMENT OF RADICH J

ATKIN v MEAD [2025] NZHC 164 [13 February 2025]

Introduction

[1] Since they separated in 2017, Ms Atkin and Mr Mead have been embroiled in litigation over the day to day care of their three children.

[2] Most recently, on 20 October 2023, Judge Moss declined Mr Mead’s application to vary the parenting orders that were then in place.1 In a subsequent minute of 16 April 2024, Judge Moss declined Ms Atkin’s application for an award of costs following the 20 October decision.2 The Judge did so because, while she had declined Mr Mead’s application to vary the parenting orders, she did not see the application as being without merit and did not wish for there to be the unintended effect, as the Judge put it, “of thwarting a parent from bringing a matter which should have been brought, because of the risk of costs”.3

[3] Ms Atkin brings this appeal from that decision. For the reasons I go on to give, I do not see there as being any error in the Judge’s decision and I dismiss the appeal accordingly.

Background and decision under appeal

[4] The Family Court proceedings are lengthy, combative and multifaceted. The following summary of the proceedings is not by any means comprehensive. But it is intended to provide sufficient relevant context for the costs decision under appeal.

[5] Soon after their separation, both parties made a range of applications, some on a without notice basis, for the day to day care of their children.4 The various applications resulted in an interim order, on 28 March 2019, providing for the childrens’ care to be shared on a week about basis.

1      [Mead] v [Atkin] [2023] NZFC 11412 [Judge Moss’ decision].
2      [Atkin] v [Mead] FC Palmerston North FAM-2017-054-371 (Minute of Judge Moss on costs) [Costs decision].
3 At [7].
4      Mr Mead applied without notice for the day to day care of the children following which Ms Atkin applied without notice for a parenting order recording that she had day to day care of the children. Mr Mead filed two further without notice applications…

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 Atkin v Mead

Details

AGLC: Atkin v Mead [2025] NZHC 164
Case: [2025] NZHC 164
Decision Date: 13 February 2025

CaseChat Overview and Summary

Atkin v Mead concerns an appeal against an interlocutory decision on costs made by the Family Court. The case involves ongoing litigation between Ms Atkin and Mr Mead over the care of their three children since their separation in 2017. Following a decision by Judge Moss on 20 October 2023, which declined Mr Mead's application to vary the existing parenting orders, Ms Atkin sought an award of costs against Mr Mead. Judge Moss declined this application on 16 April 2024, reasoning that while Mr Mead's application was not without merit, awarding costs could have the unintended effect of discouraging parents from bringing necessary matters to court due to the risk of costs. Ms Atkin appealed this decision, arguing that Mr Mead's actions have caused her financial and emotional harm and adversely affected the children's welfare. The legal issue before the court was whether the Family Court Judge erred in declining to award costs to Ms Atkin.

The court found that the Family Court Judge had a broad discretion in awarding costs, and the principles guiding such discretion required the court to consider the welfare and best interests of the child. The court noted that parents should not be discouraged from raising genuine and responsible arguments they believe to be in the best interests of the child. The appeal was assessed under the principles set out in Kacem v Bashier, requiring the appellant to demonstrate an error of law, consideration of irrelevant factors, or a plainly wrong decision. The court concluded that there was no error in the Family Court Judge's decision, as she appropriately considered the welfare and best interests of the children and found Mr Mead's application, while unsuccessful, was not without merit. The court further found no basis to conclude that Mr Mead acted unreasonably or that the Family Court Judge made an error of law or was plainly wrong.

The appeal was dismissed, and no costs were payable in relation to the appeal. The court upheld the Family Court Judge's decision, affirming that discouraging further litigation due to the risk of costs could have adverse effects on the children. The court emphasised the importance of considering the welfare and best interests of the child in making costs decisions in care of children proceedings.

Orders