BETWEEN EDWIN MICHAEL BATE Appellant AND EMMA KATE BATE Respondent
[2023] NZHC 3060
•6 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-001945
[2023] NZHC 3060
BETWEEN EDWIN MICHAEL BATE
Appellant
AND
EMMA KATE BATE
Respondent
Hearing: 22 March 2023 Counsel:
R P Sutton for Appellant
G M Sandelin and A P Pearce for Respondent
Judgment:
6 July 2023
Memoranda of Counsel:
Reasons:
10 and 16 August 2023
31 October 2023
REASONS JUDGMENT OF HINTON J
This judgment was delivered by me on 31 October 2023 at 4.45 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Counsel/Solicitors:
R P Sutton, Hamilton
G M Sandelin, Auckland Holland Beckett Law
BATE v BATE [2023] NZHC 3060 [31 October 2023]
Introduction
[1] Mr Bate appealed an interim spousal maintenance decision of Judge Ginnen delivered on 11 September 2022 in the Family Court at Manukau (the interim maintenance decision).1
[2] The appeal raises the interesting question of when spousal maintenance should include legal and accounting fees for ongoing disputes between the parties.
[3] On 6 July 2023, I delivered a results judgment allowing the appeal.2 The interim maintenance award was reduced from $1,682 to $582 per week after deducting a sum of $1,100, being the approximate sum included on account of Mrs Bate’s legal and accounting fees. This was on the basis that 50 per cent of the proceeds of sale of the parties’ rental property (approximately $610,000), or such lesser amount as Mrs Bate requested, be paid to her forthwith by way of an interim distribution, and that the balance of the sale proceeds be held on interest-bearing deposit pending agreement or order of the Court. No order was made as to costs and any costs order made in the Family Court was set aside.
[4]These are my reasons.
Background
[5] Mr and Mrs Bate were married for approximately 20 years, separating on 22 July 2020. They have three children now aged between 15 and 20. The oldest is living away from home at university.
[6]Their main assets at separation included:
(a)The family home, worth $1.5–2 million according to Mrs Bate or
$2.2 million (plus) according to Mr Bate.
1 Bate v Bate [2022] NZFC 8276.
2 Bate v Bate [2023] NZHC 1752.
(b)A sum of approximately $1.23 million being the net proceeds of sale of a rental property owned by the parties, sold since separation. That sum was on interest-bearing deposit at the time of the hearing of this appeal.
(c)Mr Bate’s interest in a small legal practice in a provincial town. The value of Mr Bate’s interest in the practice is yet to be ascertained but, on the information presently before the Court, it appears unlikely to be significant. His current account was in credit at separation in a sum of under $200,000.
[7] The parties owe about $340,000 to the Remus Jems 3 Trust. I refer to this as the Bate Seniors Trust as it was settled by Mr Bate’s parents with property accumulated by them and Mr Bate’s grandparents. The trustees are Mr Bate, his mother, his sister, and an independent person. The current discretionary beneficiaries are Mr Bate’s mother, his sister, her husband, Mr Bate, Mrs Bate and their three daughters. As I understand it, the Bate Seniors Trust made a loan to the parties some years ago to enable them to buy the family home. Further advances have been made since, including for renovations and for vehicle purchases, leading to the total debt at separation of about $340,000. The loan has been interest-free throughout.
[8] In 2020 Mr Bate received approximately $368,000 from two trusts also settled by his parents, both of which vested. There is no suggestion that the sum received was other than his separate property. In November 2021, Mr Bate gifted this money to a new trust settled by him, the CAE Trust, the beneficiaries of which are Mr Bate and his children. Mr Bate is a trustee and has power of appointment.
[9] Following their separation, the parties agreed to share occupation of the family home and care of the children on a week-about basis. However, that arrangement did not come to pass. Instead, Mrs Bate remained in occupation of the family home and the two younger children live with her. Mr Bate is living with his mother, paying her
$300 per week by way of board.
[10]Mr Bate has been assessed to pay child support of $756 per week.
[11] In addition to the interest-free loan that the Bate Seniors Trust has made to the parties, that Trust has also typically allocated to Mrs Bate the sum of $4,000 per annum, usually by way of credit to her beneficiary current account. Further, the Trust has paid certain expenses of the parties, including the children’s private school fees, rates and insurance on the family home and all health costs of the family. Unlike the payments of a capital nature referred to above which were made by way of loan, these expenses have been met by distributions. As I understand it, these expenses were still being met at the date of the interim maintenance decision.
[12] For the first year or so following separation, the parties shared all income. In addition, it seems that at least up to the interim maintenance decision, Mrs Bate received 50 per cent (or more) of drawings Mr Bate received on his current account.
[13] Once the $1.23 million settlement sum was available from the rental property sale, Mr Bate proposed it be divided equally by way of interim distribution. Mrs Bate declined and also, for some nine months, did not agree to the settlement sum being placed on interest-bearing deposit.
The interim maintenance decision
[14] On 26 July 2021, Mrs Bate applied for spousal maintenance and on 24 March 2022 her claim for interim spousal maintenance of $1,761.14 per week was heard by Judge Ginnen in the Family Court.3 Mrs Bate included in her claim some costs that the Bate Seniors Trust was already paying on the basis she wished to have certainty those payments would continue. She also included a claim for legal and accounting fees being incurred by her in her proceedings against Mr Bate of $5,000 per month or about $1,160 per week. The bulk of her maintenance claim therefore related to legal and accounting fees, which I refer to for convenience as legal fees.
[15] The Judge assessed Mrs Bate’s reasonable needs at $3,402 per week, only a slight reduction on her claimed needs.4 Mrs Bate’s after-tax income from nursing was
3 Bate v Bate, above n 1.
4 At [58].
$50,000 per annum or approximately $1,000 per week, plus she was receiving child support of $756 per week. That left a shortfall of $1,682 per week.5
[16] The Judge accepted that Mr Bate’s reasonable needs in terms of his own expenses, plus child support, totalled approximately $176,000 per annum.6 Once an allowance for his own legal fees was included, that figure became approximately
$236,000.7
[17] The Judge did not make any finding as to Mr Bate’s income other than that it was “significantly higher than what [Mr Bate] claims”.8 At the time of the hearing, Mr Bate estimated his income at $178,000 gross for the 11 months to 25 February 2022.9 This equated to about $194,000 gross for the year. In stating that his income was significantly higher than that, the Judge seemed to be relying in a general way on Mr Bate’s current account with the legal practice, coupled with her concern about a “lack of evidence” from his fellow directors.10
[18] The Judge also appears to have treated the funds of the Bate Seniors Trust and the CAE Trust as part of Mr Bate’s means, stating that Mr Bate’s capital assets were significantly greater than Mrs Bate’s, being essentially her share of the relationship property.11
[19] After reviewing some of the previous decisions regarding inclusion of legal fees the Judge found it was not reasonable for Mrs Bate to use the rental property proceeds for payment of fees, or for interim maintenance generally.12
[20] The Judge found that Mrs Bate did not have the ability to meet her reasonable needs, inclusive of legal fees, and awarded her the full shortfall by way of interim maintenance of $1,682 per week, for six months.13
5 At [61].
6 At [74].
7 At [74].
8 At [84].
9 At [76].
10 At [84].
11 At [70].
12 At [70].
13 At [94].
Grounds of appeal
[21] Mr Bate appealed the decision on the basis that Mrs Bate’s needs were overstated; her legal and accounting fees should not be included; and he does not have the means to pay.
Fresh evidence
[22] Mr Bate sought leave to file a number of brief affidavits subsequent to the Family Court decision providing updating financial information. I am prepared to admit the affidavits because they are at least on the whole simply updates and Mrs Bate has not suggested the content of the affidavits is wrong. But none of these matters strikes me as being of any particular moment in the limited context of this appeal.
Legal principles
General
[23] The Court has a broad discretion under s 82 of the Family Proceedings Act 1980 with regard to interim maintenance. The section provides:
82 Interim maintenance
(1)Where an application for a maintenance order or for the variation, extension, suspension, or discharge of a maintenance order has been filed, any District Court Judge may make an order directing the respondent to pay such periodical sum as the District Court Judge thinks reasonable towards the future maintenance of the respondent’s spouse, civil union partner, or de facto partner until the final determination of the proceedings or until the order sooner ceases to be in force.
(2)[Repealed]
(3)[Repealed]
(4)No order made under this section shall continue in force for more than 6 months after the date on which it is made.
(5)An order made under this section may be varied, suspended, discharged, or enforced in the same manner as if it were a final order of the Family Court.
[24] As is clear from the language of s 82, a court can make such award as it considers reasonable. The court is not required to apply the principles governing the
making of a final maintenance order, though in practice similar factors are taken into account.
[25] The approach to interim spousal maintenance orders is well-established.14 The questions when considering the exercise of the discretion are:
(a)What are the applicant’s reasonable needs?
(b)What is the applicant’s ability to meet those needs?
(c)What are the respondent’s reasonable needs?
(d)What is the respondent’s ability to meet the applicant’s reasonable needs?
(e)Should the court exercise its discretion?
[26] It is well accepted that when considering the parties’ means, the Court can take a broad approach,15 including taking account of the parties’ assets and access to trust funds where a trust is controlled by one of them.16
[27] As a general proposition, a liberal approach is taken to interim maintenance claims.17
[28] An appellate court will not interfere with the exercise of a discretion by the court appealed from unless the judge acted on a wrong principle, took into account some irrelevant matter, failed to take into account a relevant matter, or was plainly wrong.18
Legal and professional fees
[29] The Judge and counsel on the appeal cited a number of cases where legal fees have been claimed as part of interim or final maintenance. In about half of these cases
14 See Ropiha v Ropiha [1979] 2 NZLR 245 (CA) at 247; and Collins v Collins [2014] NZHC 2121 at [13].
15 Ropiha v Ropiha, above n 14, at 247.
16 See Knight v Knight [2022] NZHC 62, [2022] NZFLR 20.
17 Hodson v Hodson [2012] NZFLR 252 (HC) at [36].
18 May v May (1982) 1 NZFLR 165 (CA) at 170.
the claim was allowed: in the other half it was not. The cases turn on their own facts, but I draw from them the following broad principles:
(a)Legal and accounting fees can be treated as an expense in a spousal maintenance claim,19 provided they are ongoing.20
(b)A cautious approach is taken to inclusion of legal fees in a maintenance award. An award is most likely to include legal fees when the applicant is otherwise unable to fund the litigation between the parties and the respondent is very well resourced, or there is a very substantial imbalance in the parties’ respective means.
In Clayton v Clayton,21 there was significant accumulated wealth by the end of the relationship, the interim distribution made to the wife had already been spent on legal fees and no further funds were available to her. A final maintenance order was made in the Family Court of
$15,000 per month, including legal and accounting fees of $10,000. That order was upheld by Courtney J in the High Court.
In Dalrymple v Dalrymple,22 the husband owned 50 per cent of a very valuable farming company in respect of which he had borrowed heavily instead of paying himself a salary during his 24-year marriage. The wife had some assets which were not accessible by her and which generated little income. The Family Court Judge’s award of $7,000 per month, including legal fees of $2,000 and accounting fees of $1,000, was reduced slightly on appeal but not on account of the fee component.
(c)Unlike the position with general living expenses, putting an applicant in funds to meet legal fees through interim distribution of relationship
19 B v B [2008] NZFLR 789 (HC) at [16]–[17].
20 C v G [2010] NZCA 128, [2010] NZFLR 497 at [52].
21 Clayton v Clayton [2015] NZHC 550.
22 Dalrymple v Dalrymple [2019] NZHC 637.
property (where possible) is preferable to including those fees in maintenance.23
In GCH v SMH,24 Whata J overturned a Family Court decision including legal fees of $1,500 per week in an award of interim maintenance, where the husband was incurring debt to trusts (of which the husband and wife were both discretionary beneficiaries) to cover legal fees for both himself and the wife. Whata J instead effectively negotiated (as suggested by the husband) a “like for like” distribution to the parties from the trusts to cover legal expenses and avoid pre- empting any final award of costs.25 Parity of distribution was said to “avoid allegations of unfairness” with the outcome designed to preserve “the appellant’s position on any subsequent costs award, while achieving s 82’s interim protective purpose”.26
And in Luyk v Luyk,27 after a relationship of about 14 years, the wife sought interim spousal maintenance of $20,000 per month, including
$10,000 for legal and accounting fees. The husband was an oral surgeon whose income the preceding year exceeded $1 million gross. Judge Manuel in the Family Court declined to include the fee component. She considered the wife was clearly able to fund her legal and accounting fees over the coming six months given she had access to “substantial funds of more than $400,000”.28
Similarly, in Collins v Collins,29 Moore J overturned an interim maintenance award made by the Family Court of $1,600 per month (being mainly legal fees), finding that the wife was able to meet her legal fees out of a sum of $88,000 she had received from sale of the
23 Clayton v Clayton, above n 21, at [27].
24 GCH v SMH [2014] NZHC 211.
25 At [44].
26 At [44].
27 Luyk v Luyk [2020] NZFC 1253, [2020] NZFLR 617.
28 At [74].
29 Collins v Collins, above n 14.
family holiday home.30
I note that in Able v Able,31 the Family Court ordered the husband to pay $12,000 a month towards his wife’s legal fees by way of interim maintenance, despite the husband’s proposal of an interim distribution of $300,000. Gault J dismissed an appeal alleging that the Family Court had erred in concluding that the legal fees should be paid out of maintenance, noting that the proposal for an interim distribution was conditional and thus not assured.32
[30] Viewed overall, the approach is a fair one. One party to a relationship should not be blocked from pursuing a tenable case against the other by lack of funds when the other is well-resourced.33 Such situations are often the result of a deliberate structuring of assets by one party. There are, however, some notable policy considerations pertinent to the decision to award interim maintenance with a component for legal fees. First, as the courts have previously indicated, requiring one party to contribute towards the other’s legal fees potentially undermines the application of the costs regime.34 Further, it is inflammatory for a party to have to fund litigation being brought against them.
[31] In B v B35 and Clayton v Clayton,36 Courtney J has expressed a contrary view as to the policy considerations. In B v B the Judge said the fact that one spouse will have funded the other in their litigation would affect the Court’s discretion as to costs such that there would be “no real risk that someone in that position would be faced with having to meet those costs twice over”.37 However I consider the matter is somewhat more nuanced. While it is correct that the Court can take account of legal
30 At [43].
31 Able v Able [2020] NZHC 177, [2020] NZFLR 8.
32 At [15] and [30].
33 See, for example, Able v Able, above n 31, at [30], where Gault J observed that, without interim maintenance for legal fees the wife would be unable to sustain the relationship property proceedings.
34 See C v G, above n 20. Although in that case the Court of Appeal was addressing the more blatant situation of past legal fees where the costs regime was clearly circumvented, and the award was overturned on that basis alone, the same policy considerations nonetheless generally apply. See also GCH v SMH, above n 24; and Luyk v Luyk, above n 27, at [54].
35 B v B, above n 19.
36 Clayton v Clayton, above n 21.
37 B v B, above n 19, at [20].
fees paid by way of maintenance on a subsequent costs award in favour of the applicant, the fee component of a maintenance award may far exceed any such costs award. Further, it cannot be assumed that the party receiving maintenance will necessarily be entitled to costs at all — the reverse may even be the case. In each of these events, there is no scope for recovery of the legal fees paid, or none that has been identified to date.
Did the Family Court Judge err in assessing Mrs Bate’s reasonable needs?
[32] While many points were taken by Mr Bate with regard to Mrs Bate’s reasonable needs, these were largely based on his analysis of pre-separation expenditure, which was not in evidence, or based on certain payments being made by the Bate Seniors Trust, when the maintenance application was presumably made on the assumption those payments would cease.38 Overall, although on a final maintenance application a number of those points might be substantiated, I considered the argument not consistent with the reasonably liberal approach a court should take on interim maintenance.
[33] In terms of the allowance for legal and accounting fees, as summarised above, it is generally accepted that following a separation, such fees can fall within “reasonable needs”.
[34] Therefore I find there is no error that justifies interfering with the Judge’s finding in terms of Mrs Bate’s reasonable needs. In fact, the Family Court judgment was impressively detailed in its assessment of Mrs Bate’s general living expenses.
Did the Family Court Judge err in assessing the parties’ means?
[35] As stated, the Judge did not ultimately fix Mr Bate’s income for purposes of the interim maintenance hearing. The information placed before the Judge was confusing. I accept the submission of Mr Sutton, for Mr Bate, that it could not fairly be suggested that Mr Bate had not disclosed his financial position, so far as it was known at the time. His tax return had not been completed. The current account
38 Mr Bate also assumed that pre-separation expenditure would reduce pro rata on his ceasing to be in occupation of the home which in a number of instances was not correct.
balance and any transactions in that regard were on the record to the extent known. Evidence would not normally be expected from a law firm’s directors in interim maintenance proceedings. While Mr Bate had not included a $15,000 sum he received annually from the Bate Seniors Trust for running a rental business on the Trust’s behalf, that was clearly an oversight. The fact of the annual payment was well-known to Mrs Bate. Mr Sandelin, for Mrs Bate, quite properly acknowledged that any differences over Mr Bate’s income were a matter of analysis, not disclosure. He said there was no suggestion Mr Bate was being dishonest.
[36] In the Family Court counsel for Mrs Bate contended that Mr Bate’s taxable annual income for the year ended March 2021 provided the most accurate reflection of his means, that figure being $293,598, or $206,000 after tax. However, the application relates to the subsequent year. I was advised by Mr Sutton at the outset of the appeal hearing that Mr Bate’s 2022 tax return had been completed and his taxable income for the year ending 31 March 2022 from all sources was declared at $201,000. I was not advised of the after-tax figure but, for present purposes, it seems reasonable to adopt a sum of $150,000. I accept that amount may not all have been available to Mr Bate, some being tied up in his current account, but nonetheless it is a reasonable figure to work from.
[37] Mr Bate’s income of approximately $150,000 after-tax would be insufficient to meet his own expenses of $176,000 per annum, inclusive of child support and exclusive of his own legal fees.
[38] Mr Bate’s current account balance at separation (to which the Judge referred in this context) is simply an item of relationship property, as listed above. Further, I understand that any payments Mr Bate has received, he has shared with Mrs Bate. Any balance either not received or not so shared will be brought into account as part of the valuation of Mr Bate’s interest in the firm.
[39] I accept in terms of Mr Bate’s means that he has control of the CAE Trust which has been funded by his separate property. To some extent that might be taken into account at least on an interim maintenance claim.
[40] In terms of the Bate Seniors Trust, Mr Hussey, a well-known forensic accountant who gave expert evidence for Mrs Bate in the Family Court, opined that Mr Bate seemed to be able to call on the Bate Seniors Trust as needed. The respondent argued that the trust fund could broadly be taken into account as part of Mr Bate’s means.
[41] However, unlike the other cases where trust funds have been taken into account in maintenance proceedings, the Bate Seniors Trust is an inter-generational trust settled and funded by the Bate Seniors. It does not appear to be a trust to which Mr or Mrs Bate has contributed, rather a trust from which they have materially benefited.
[42] Further, the evidence seems to be, as set out above, that the Trust had only made certain repeat payments over the years leading up to the separation, plus one-off payments in respect of specific capital assets which were by way of loan. There is no evidence Mr Bate has control over this trust, nor would it be expected he should. He is one of four trustees. I do not consider it reasonable to conclude that he can call on a trust of this nature at will. Nor do I consider it reasonable for the Court to assume that a trust, not settled, funded or controlled by the parties, and that has already been generous to them, should be expected to pay more in a spousal maintenance context than it has done previously.
General living expenses
[43] However, I consider it reasonable that Mr Bate have to resort to the Bate Seniors Trust for assistance with Mrs Bate’s general living expenses, given the trustees were making a number of those payments before they were in effect eschewed by Mrs Bate for purposes of this application. To the extent that assistance is not forthcoming, I consider it reasonable that Mr Bate draws on the CAE Trust funds at least for the period of the interim maintenance order. Exercising the Court’s discretion and to avoid any suggestion of a niggardly approach I rounded the shortfall up in Mrs Bate’s general living expenses from $522 to $582 per week and ordered that Mr Bate pay that sum.
[44] I note that the shortfall in Mr Bate’s own living expenses (including child support) will presumably also have to be met out of the CAE Trust fund.
Legal and accounting fees
[45] I turn to the real question as I see it: should legal and accounting fees of $1,160 per week relating to litigation between the parties be included in the interim maintenance award in this case?
[46] First, for the reasons set out above, I do not consider Mr Bate has the means to pay towards Mrs Bate’s legal fees. He has a shortfall in terms of his own expenses (including child support) and an even greater shortfall taking into account the further payment he will have to make to Mrs Bate of $582 per week.
[47] I consider it objectionable and contrary to public policy that trustees of the Bate Seniors Trust should be expected to fund (in effect) legal fees of a daughter-in-law of the settlors in proceedings against their son. As noted, the position is different with regard to contributions to Mrs Bate’s living costs generally and it would seem likely that the Bate Seniors Trust would pay or continue to pay some of the outgoings, which will offset some of the deficit. In none of the cases where legal fees have been included in maintenance has a trust fund of the nature of the Bate Seniors Trust been taken into account as part of the respondent’s means. The relevant trusts have been trusts settled by the parties themselves or trusts that have been directly benefited by the parties.
[48] I also do not consider it reasonable that Mr Bate be expected to fund litigation against himself out of what was his separate property, now in the CAE Trust, especially where there is significant relationship property available to his wife and his separate property is not substantial. That would run contrary to the principles of the Property (Relationships) Act. Again, there is no precedent for such an approach and it would depart from the general principles discussed above.
[49] Second, applying those same general principles, set out above, even if Mr Bate had the means, this case does not fit into a category where legal fees should be included in interim maintenance. This is not a situation where one person has endless resources and the other is starved of funds, or even where there is a significant (or any) imbalance in the interim positions of the parties. As addressed, Mr Bate will already have to resort to the Bate Seniors Trust or the CAE Trust to meet what could be a significant shortfall in terms of his expenses and to meet Mrs Bate’s general living expenses.
Consequent upon the maintenance order, Mrs Bate has sufficient income to meet all of her (and the children’s expenses), bar her legal fees.
[50] Contrary to the Judge’s observation that Mr Bate has substantial assets, he has control of very little of the relationship property, other than his share in a small provincial legal practice and the corresponding current account which I accept is unlikely to be readily realisable in full. Mrs Bate has had occupation of the family home, the principal relationship property asset, since separation and there is no suggestion she will lose that in the short-term. She has shared in other capital receipts since separation, at least down to mid-2021.
[51] Significantly, this is a case where a sizeable interim distribution is more than possible. Prior to her maintenance application, Mrs Bate was offered an equal interim distribution of the proceeds of sale of the rental property, an offer she declined.
[52] Further, at my suggestion, Mr Bate agreed there could be a 50 per cent distribution to Mrs Bate (only) from the sale proceeds of the rental property. That concept had not previously been canvassed between the parties. The retention of the remaining 50 per cent on deposit avoids the psychological concern that a still dependant spouse has in seeing available funds otherwise fully disbursed.
[53] For the above reasons, I consider that the Family Court Judge erred in principle. This is not a case where the respondent’s legal fees should be included in the interim maintenance award. Such expenses fall within her reasonable needs, but she has the means to pay them given her access to capital. Further, Mr Bate does not have the means to pay other than out of the CAE Trust which I consider unreasonable. In any event, in such circumstances the Court should exercise its discretion against including legal and accounting fees in the maintenance award.
[54] That is not to say Mrs Bate might not ultimately recover some of her fees by way of an award of costs should this matter unhappily end up in a substantive property hearing. But, equally, Mr Bate might. It would be wrong in principle to pre-empt either possible outcome on the facts of this case.
Result
[55] For the above reasons, I allowed the appeal and made the orders set out in my judgment dated 6 July 2023, summarised at the outset of this judgment.
[56] No account has been taken for present purposes of interest Mrs Bate will receive on the distribution to her of approximately $610,000 (that is, I have not taken into account that her income will increase). At present interest rates, she will receive interest of approximately $30,000 gross per annum. The question of adjustment between the parties can be taken into account ultimately on division of relationship property.
Costs
[57] There was no request by counsel to reserve costs on account of Calderbank offers or otherwise. I considered I had sufficient information to conclude that costs should lie where they fall. While Mr Bate has been substantially successful, he has taken an overly exhaustive approach to the appeal with regard to the shortfall in Mrs Bate’s general living expenses, particularly in the context of interim maintenance. In addition, the cases relating to inclusion of legal fees in interim maintenance awards have been somewhat variable, so Mrs Bate’s position in seeking to uphold that part of the award was not entirely unreasonable. I also consider that costs orders are inflammatory in a case such as this, at an interlocutory stage. Finally, as Mr Sandelin submitted, Mr Bate’s own legal fees may be lower than otherwise because he is a lawyer, though that point would go more to quantum than to the making of a costs award.
[58] The parties have been separated for over three years now. As discussed during the hearing, I encourage them to focus on a liberal resolution of their substantive dispute. It may well be that this has already happened. On the face of it, there is not sufficient net worth to justify large expenditure on interlocutory or interim applications.
Anonymisation
[59] Mr Bate seeks anonymisation of the parties’ names. Mrs Bate opposes. Both parties filed memoranda as to their respective positions. Having reviewed those I make a ruling that anonymisation is not appropriate. The mere fact that the parties share children does not automatically lead to the suppression of the parties’ names. I do not consider that s 11B of the Family Court Act 1980 applies. Also there is no sound reason to exercise the Court’s inherent jurisdiction. The results judgment and this reasons judgment will not be released publicly for seven days to allow Mr Bate time to appeal should he wish to do so.
Hinton J
0
6
1