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 and an on notice application. Ms Atkin then filed three without notice applications including under the Family Violence Act 2018.

[6]        It became clear by early in 2021 that arrangements were not working. Following further applications, Judge Broughton held a  substantive  hearing  in  May 2021 to consider whether the children would relocate to a different city with  Mr Mead and, if not, whether they should be in Mr Mead’s full-time day to day care with Ms Atkin having contact or in Ms Atkin’s full-time day to day care with Mr Mead having contact.

[7]        In a decision of 18 June 2021, Judge Broughton declined Mr Mead’s application for the children to relocate with him and determined that the children should be in Ms Atkin’s day to day care, with Mr Mead having contact.5

[8]        As the Judge explained, Mr Mead had ongoing concerns about incidents reported to him by the children while they were in Ms Atkin’s care while Ms Atkin was concerned that Mr Mead’s behaviour, and his communications with the children, were undermining her relationship with them. As the Judge put it, both parties were in “combat mode”, unable to think beyond themselves and failing to present a united parental front.6 The issues between the parties were such that the Judge found that shared care would not work.7

[9]        Subsequently, the parenting orders were varied by consent to enable the parties’ eldest child to be in Mr Mead’s day to day care. The variation is the subject of a minute in the Family Court of 9 December 2022.

[10]      In 2023, Mr Mead applied for admonishment and enforcement orders.8 He was concerned that the terms of orders in place, which enabled video contact between him and the two children in Ms Atkin’s care on three occasions each week, were not being complied with. And, in September 2023, he applied to discharge the existing parenting order and for new orders to be made giving him day to day care of all three children on the basis of concerns he expressed about the care that Ms Atkin was providing.

5      [Mead] v [Atkin] [2021] NZFC 5168.

6 At [124].

7 At [125].

8      Care of Children Act 2004, ss 68 and 72 respectively.

[11]      In her October 2023 decision, Judge Moss declined leave. She was not satisfied that there had been a material change in circumstances. She made the point that, although Ms Atkin and Mr Mead had significant therapeutic resources available to them to manage the parenting arrangements, the conflict dynamic remained.9

[12]      On 15 December 2023, Mr Mead withdrew his other applications. Subsequently, Ms Atkin applied for costs on Mr Mead’s most recent application for day to day care of the children.

[13]Judge Moss’ reasons, by way of summary, were these:

(a)While costs are able to be awarded to a party who is successful in litigation, including litigation under the Care of Children Act 2004, the Court must consider more than mere success as it is obliged to consider the welfare and best interests of the children in any determination relating to the care of children.10

(b)Childrens’ welfare is compromised by financial loss, ongoing conflict and exposure to dangerous actions by parents.11

(c)For Ms Atkin, the costs of defending Mr Mead’s application impacted on her ability to provide for the children while Mr Mead’s concerns were centred upon the adversity faced by the children including, in particular, their behaviour—and the difficulties that one of them had faced at school.12

(d)An award of costs would operate adversely in the proceeding. The Judge put it in the following terms:13

Although I ruled against the application for leave, I cannot find that it was so without merit that costs should be awarded. To award costs relatively automatically when an application does not succeed will have the unintended effect of thwarting

9 Judge Moss’ decision at [18].

10     Costs decision, above n 2, at [2].

11 At [3].

12 At [4].

13 At [7].

a parent from bringing a matter which should have been brought, because of the risks of costs.

Grounds of appeal

[14]      In her notice of appeal, in her submissions, and in her further evidence filed in support of the appeal (addressed in the next section of this decision) Ms Atkin has advanced a number of grounds which may be summarised in the following way:

(a)Ms Atkin refers to her success in  defending  applications  filed  by Mr Mead in September 2023;

(b)Ms Atkin refers to an affidavit filed by Mr Mead in January 2024 as being out of time, as containing irrelevant material and seeking to relitigate previous matters;

(c)Ms Atkin sees steps taken by Mr Mead in the ongoing litigation between the parties as causing her significant financial and emotional harm and as affecting the childrens’ welfare adversely;

(d)Ms Atkin has referred to Mr Mead “weaponising the judicial process”.14 She sees the approach taken by Mr Mead as having a chilling effect; as deterring her ongoing involvement in the proceedings.

[15]      As Ms Atkin and Mr Mead confirmed during the hearing, all three children are now in Mr Mead’s day to day care. I understand that a hearing that was scheduled in the Family Court on 29 January 2025 to consider further parenting issues has not proceeded on the basis that both parties are, at present, content for current arrangements to remain (despite the terms of the parenting orders) in order to advance, as Ms Atkin put it, the peace and healing of the children. While Ms Atkin is not happy with arrangements from a personal perspective (and expressed her real concern about the stresses the litigation has brought) she sees the current arrangements as being in

14     I do not see this as being an appropriate term in circumstances in which both parties have adopted combative positions in the on-going proceedings.

the childrens’ best interest. Nonetheless, she has maintained this appeal on the grounds described above.

Application for leave to file fresh evidence

[16]      Ms Atkin has filed an affidavit in support of this appeal. The 22 page body of the affidavit is a combination of evidence, opinion and submission relating to events and proceedings as between the parties and their children since 2017. It attaches over 90 pages of exhibits.

[17]      No application has been made for leave to adduce fresh evidence on appeal. Secondly, and more importantly, in order for evidence to be admitted on appeal, it is to be fresh, cogent and credible.15 Ms Atkin’s affidavit recounts, and provides a narrative on, past events. In this sense, it does not relate, as would need to be the case, solely to events that have occurred since the Family Court’s decision. It is material that could have been adduced in the context of the application in the Family Court. Moreover, it is not cogent in the sense that it is not clearly relevant to the terms of the Judge’s discretion.

[18]      However, the Court does have a residual discretion to receive further evidence on appeal if circumstances are exceptional or grounds compelling—especially in the care of children context.16 In all of the circumstances here—including the fact that the parties are not represented, that Ms Atkin has used the affidavit to explain her points on appeal and that Mr Mead has filed a relatively brief affidavit in reply—I am prepared to admit the affidavit but to adjust the weight that I would give to it on the basis that, as I have explained, its content is of limited relevance to the issue on appeal; the approach that Judge Moss took in declining to award costs. I admit Mr Mead’s affidavit on the same basis.

15     Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193.

16     See LRR v COL [2020] NZCA 209, [2020] 2 NZLR 610 at [124].

Legal principles

[19]      Judge Moss granted Ms Atkin leave to appeal from her decision on costs in a minute of 31 July 2024. Leave was not strictly necessary as parties have a right of appeal on costs decisions to the High Court17 but, as the Judge said in the 31 July minute, there is a sufficient basis for the appeal in the sense that this court might well evaluate the issue differently from the approach she took in her April 2024 decision.

[20]      As both the Care of Children Act and the Family Court Rules 2002 provide, the Judge had a broad discretion on whether or not to award costs.18 Under the Family Court Rules, in exercising its discretion the Court may apply any of rr 14.2 to 14.12 in the District Court Rules 2014. Rule 14.2 of the District Court Rules mirrors r 14.2 of the High Court Rules 2016 and sets out the principles that apply to the determination of costs. They include the principle that a party who fails in a proceeding should pay costs to the party who succeeds.19 Accordingly, the appeal is against the exercise of a discretion by the Family Court Judge20 and proceeds on the basis described by the Supreme Court in Kacem v Bashier.21 To succeed, an appellant must show that:22

(a)the Judge made an error of law or principle;

(b)the Judge took account of irrelevant considerations or failed to take account of a relevant consideration; or

(c)the decision is plainly wrong.

[21]      The principles that apply to awards of costs in care of children proceedings are well settled.23 As the Court of Appeal said in Hawthorne v Cox,24 the starting point for the Court in considering the exercise of its discretion on costs in proceedings

17     Care of Children Act, s 143.

18     Care of Children Act, s 142 and Family Court Rules 2002, r 207.

19     District Court Rules 2014, r 14.2(1)(a).

20     Adams v Watcher [2021] NZHC 432 at [11]; and Henderson v Green [2022] NZHC 1870 at [94]

— a decision in relation to which leave to appeal was refused by the Court of Appeal in Henderson v Green [2024] NZCA 615 [Henderson v Green (CA)].

21     Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.

22     Kacem v Bashir, above n 21, at [32].

23     Henderson v Green (CA), above n 20, at [32].

24     Hawthorne v Cox [2008] NZCA 146.

relating to guardianship, day to day care of, or contact with, a child must be the welfare and best interests of the child.25 The Court made the point that parents should not be discouraged from raising all genuine and responsible arguments they believe to be in the best interests of the child in the Family Court.26 But it went on to say that the same principle might not apply when considering an award of costs in a High Court appeal itself given that the bringing of an appeal to the High Court involves further uncertainty and will be prolonged.27

[22]      Recently, in Clark v Moore the Court of Appeal,28 in referring to the Court of Appeal’s approach on this point in Hawthorne as “unimpeachable”, went on to describe the considerations that arise commonly when considering the welfare and best interests of the child in the course of making costs decisions in appeals under the Act.29

[23]      The considerations involve the financial burden on a parent in making, or declining a costs award and how that might affect the child, the desirability of dissuading further litigation—bearing in mind that decisions affecting a child should be made and implemented within a timeframe that is appropriate to the child’s sense of time,30 particularly for when litigation is pursued for tactical reasons.

[24]      Accordingly, it can often be wrong in principle to make an adverse order for costs against a parent who advances a genuine and responsible argument in what he or she regards as the best interests of the child. And, as Cooke J said in Adams v Watcher, some care needs to be exercised in assessing an argument by one parent that the approach of another has been unreasonable.31

25 Hawthorne v Cox, above n 24, at [26]: that is because the discretion in s 142 of the Care of Children Act 2004 to award costs is to be informed by the purposes of that Act which are set out in s 4 and which include the welfare and bests interests of the child.

26 At [28].

27 At [28].

28 Clark v Moore [2024] NZCA 264.

29 At [69]. The relevant considerations were explained in the context of a High Court decision on whether or not to award costs on a substantive appeal from the Family Court so are not on all fours with the situation here but they do have some application.

30 Care of Children Act, s 4(2)(a)(i).

31 Adams v Watcher, above n 20, at [17].

Discussion

[25]      There is no basis upon which I could conclude that Mr Mead has acted unreasonably by bringing unnecessary or tactical applications that were not seen by him as being in the best interests of the children.

[26]      There is nothing that has been advanced on this appeal that would lead me towards a conclusion that the Judge—who had the benefit of assessing the credibility of the parties when dealing with the application—made an error of law or was plainly wrong. The Judge was entitled to find that Mr Mead made the application out of a genuine concern for the welfare of  the  two  children  who  were  at  that  time  in Ms Atkin’s care. There should not be discouragement in those circumstances from bringing applications that are believed genuinely to be in the best interests of the children. The application did not succeed but, as the Judge said, it was not without merit. I see that as being so on any view of the case—and certainly when latitude of the type that Cooke J refers to is applied.

[27]      The Judge approached the decision on costs application with these principles in mind. That was quite appropriate. No error has been shown.

Outcome

[28]The appeal is dismissed. No costs are payable in relation to the appeal.

Radich J