Baker v Harding - [2020] NZHC 1859

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,

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-951

[2020] NZHC 1859

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of Her Honour Judge Malosi in the Family Court at Auckland dated 18 April 2018

IN THE MATTER

of proceedings under the Care of Children Act 2004

BETWEEN

THOMAS BAKER

Appellant

AND

PATRICIA HARDING

Respondent

Hearing: On the papers

Counsel:

P Cobcroft for the Appellant

P A Fairbrother for the Respondent

Judgment:

29 July 2020

JUDGMENT OF GORDON J

[As to costs]

This judgment was delivered by me on 29 July 2020 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BAKER v HARDING [2020] NZHC 1859 [29 July 2020]

Introduction

[1] This is an application by the respondent, Patricia Harding, for costs. The application follows my judgment, given in November 2018, dismissing an appeal against a decision of the Family Court and refusing a related application.1

[2]The application for costs is opposed by the appellant, Thomas Baker.2

Background

[3] On 7 November 2018, I gave judgment in an appeal by Mr Baker against a decision of the Family Court awarding primary care of their child to Ms Harding. Ms Harding had relocated with the child from Auckland and, under the decision of the Family Court Judge, was given day to day care of the child. Mr Baker would have contact. I also heard a new application by Mr Baker, transferred from the Family Court, for various orders, including that the child relocate to Auckland where she would be in the day to day care of Mr Baker with contact given to Ms Harding.

[4] Mr Baker’s appeal was unsuccessful and his new application was dismissed. Ms Harding now applies for costs. The application is opposed by Mr Baker. The circumstances are somewhat unusual.

[5] At the conclusion of my judgment, I made directions in relation to costs. Ms Harding had filed an application for legal aid. At the time of the hearing, the outcome of that application was unknown. I made the following directions:3
[205] I direct that Mrs Fairbrother [counsel for Ms Harding] advise the Court on the outcome of the application for legal aid as soon as a decision is available. In the event that a decision is delayed, Mrs Fairbrother is to keep the Court advised on the anticipated progress of the application, if that information is available to her.

[206] I will not make any timetable decisions as to the filing of submissions until the legal-aid position for Ms Harding is known. I do, however, indicate at this point my view that the parties should attempt to reach at least some agreement over the…

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 Baker v Harding

Details

AGLC: Baker v Harding [2020] NZHC 1859
Case: [2020] NZHC 1859
Decision Date: 29 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Baker v Harding concerned an appeal by Thomas Baker against a decision of the Family Court awarding primary care of their child to Patricia Harding. Following the appeal's dismissal and a related application, Harding applied for costs, which Baker opposed. The court had to decide the appropriate costs to be awarded, considering the delay in notifying the court of the outcome of Harding's legal aid application and the impact of the COVID-19 pandemic on Baker's financial situation.

The primary issue before the court was whether Harding was entitled to full costs claimed for the appeal and whether a reduction was warranted due to the delay in notifying the court of the outcome of her legal aid application. The court also had to balance the welfare and best interests of the child in its consideration of costs, taking into account the impact on both parents' financial situations.

Gordon J found that Harding's failure to comply with the court's direction to notify the court of the outcome of her legal aid application as soon as a decision was available contributed unnecessarily to the time of a step in the proceeding. The court held that the 14-month delay was particularly unacceptable and ordered a substantial reduction in costs to reflect the delay in complying with the court's direction. However, the welfare and best interests of the child were the paramount consideration in the award of costs. The court found that ordering Baker to pay the full amount of costs claimed to Harding would produce no net benefit to the child.

After taking into account the welfare and best interests of the child and the submissions of both parents, the court decided that a 50% reduction in costs was appropriate. Gordon J awarded costs in the sum of $6,084.32 in favour of Harding against Baker and directed the Registry to release the sum of $2,230.00, held as security for costs in the Court's trust account, to Harding in part satisfaction of the costs awarded.

Final orders:
1. Costs in the sum of $6,084.32 are awarded in favour of Patricia Harding against Thomas Baker.
2. The sum of $2,230.00 held as security for costs in the Court's trust account is released to Patricia Harding in part satisfaction of the costs awarded.
3. The balance of $3,854.32 is payable by Thomas Baker to Patricia Harding.

Orders