BK v CJ
[2015] NZHC 2990
•27 November 2015
NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER
INFORMATION, PLEASE SEE
COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CIV-2015-488-000090
[2015] NZHC 2990
UNDER THE Care of Children Act 2004 and the ratification thereby of the Hague
Convention on the Civil Aspects of International Child Abduction 1980IN THE MATTER OF
an appeal against the decision of the Family Court at Whangarei
BETWEEN
BK
Appellant
AND
CJ & KJ
Respondents
Hearing: On the papers Judgment:
27 November 2015
COSTS JUDGMENT OF DUFFY J
This judgment was delivered by me on 27 November 2015 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors:
Rob Hate, Whangarei
Wills Westenra, Whangarei
BK v CJ & KJ [2015] NZHC 2990 [27 November 2015]
[1] This application for costs raises the important question of whether a party who unsuccessfully applies for the return of a child under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) should be ordered to pay costs to the successful party.
[2] On 9 September 2015 I dismissed an appeal by the mother of two children against the Family Court’s refusal to grant an order for their return under s 105 of the Care of Children Act 2004 (CCA), which is one of the legislative provisions that implements the Hague Convention into New Zealand law. The respondents, who are the grandparents of the children, now apply for costs.
[3] The respondents seek to recover no more than their actual costs of $3,962.00 together with disbursements of $276.00, amounting to total costs of $4,226.33. Under the rules governing awards of costs in this Court generally the usual scale costs for an appeal of this type would come to $11,707.50.1 However, where the actual costs incurred in a proceeding are less than scale costs r 14.2(f) prohibits an award of costs that exceeds the actual costs.
[4] The appellant opposes costs. She submits that ordering costs against her is prohibited by virtue of the applicable sections in the CCA.
[5] Having considered the relevant statutory provisions relied on by the appellant and the limited case law on the matter, my view is that costs are not expressly prohibited in this situation. However, I consider that the policy of the part of the CCA which implements the Hague Convention is against awarding costs in this case.
Relevant law
[6] Subpart 4 of part 2 of the CCA implements New Zealand’s obligations under the Hague Convention. Under art 6 of the Hague Convention, contracting states are required to have a Central Authority (the Authority) that is responsible for discharging the duties imposed on them by the Convention. Section 100(1) of the CCA makes the Secretary for Justice responsible for performing the role of the Authority in New
1 This is the sum under category 2B, which is the usual scale applied to appeals in this Court.
Zealand. Section 100(2) of the CCA protects the Secretary from costs orders in relation to the exercise or performance of his or her duties, powers or functions as the Authority:
100 Central Authority for New Zealand
(1) The Secretary [of Justice] is the Central Authority for New Zealand, and for that purpose the Secretary has all the duties, may exercise all the powers, and must perform all the functions, that a Central Authority has under the Convention.
(2) The Secretary must not be made subject to any order to pay costs in relation to the exercise or performance, by the Secretary, of any of the Secretary’s duties, powers, or functions as the Authority.
[7] Under s 103 of the CCA, the Authority must take action to secure the prompt return of a child if it receives an application claiming that a child was wrongfully removed to New Zealand. In particular, the Authority must take or cause to be taken all appropriate measures:
(a)To discover where the child is; and
(b)To ensure the safety of the child and prevent prejudice to any interested party; and
(c)To secure the voluntary return of the child to the Contracting State, or to bring about an amicable resolution of the issues; and
(d)To facilitate the making of an application under s 105 by, or on behalf of the applicant.
[8] As was the case here, where the applicant for an order for the removal of a child under s 105 has not engaged a lawyer to act for him or her s 116 requires the Authority to appoint a lawyer to act for that party, in which case the lawyer’s fees and expenses are payable as if he or she were appointed under s 7(1):2
116 Lawyer to act for applicant
(1)This section applies to an applicant who—
(a)makes an application under section 102 or section 103 or section 105 or section 112 or section 113; but
(b)has not appointed a lawyer to act for the applicant for the purposes of the application.
2 Section 7(1) permits a Court to appoint a lawyer to represent the child in the proceedings.
(2)The Authority must, if the circumstances so require, appoint a lawyer to act for the applicant for the purposes of the application, including (in the case of an application under section 103 or section 105) any proceedings under section 105.
(3)Sections 7(4), 131, 137(1)(c), and 147(2)(c) apply, so far as applicable and with all necessary modifications, to a lawyer appointed under subsection (2) as if the lawyer were appointed under section 7(1).
[9] Section 131 governs the payment of fees and expenses of lawyers appointed under s 7 and therefore via s 116(3) those who are appointed under s 116(2):
131 Fees and expenses of lawyer appointed under section 7 or 130
(1)The fees and expenses of a lawyer appointed under section 7 or 130 must—
(a)be determined in accordance with regulations made under section 16D of the Family Courts Act 1980 or, if no such regulations are made, by the Registrar of the court; and
(b)be paid in accordance with that determination out of public money appropriated by Parliament for the purpose.
(2)An invoice rendered by a lawyer appointed under section 7 or 130 for fees and expenses must be given to the Registrar of the court in which the proceedings were heard, and the Registrar may decide to adjust the amount of the invoice.
(3)A lawyer who is dissatisfied with the decision of the Registrar as to the amount of the invoice may, within 14 days after the date of the decision, apply to a Family Court Judge to review the decision, and the Judge may on the application make any order varying or confirming the decision that the Judge considers fair and reasonable.
(4)Where in any proceedings a lawyer has been appointed under section 7 or 130 and the fees and expenses relating to that appointment have been paid under subsection (1), the court must make an order under section 135A, unless the court declines to do so in accordance with that section.
(5)However, no order under section 135A may be made—
(a)in any proceedings commenced by an application under section 105 or a request under section 111; or
(b)against—
(i)the Crown, whether acting through the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 or otherwise; or
(ii)a person in whose custody the child concerned has been placed pursuant to an order made under the Children, Young Persons, and Their Families Act 1989; or
(c)in respect of an appointment under section 130, where a lawyer has been appointed under that section to provide to the court independent advice on any complex legal issue.
[10] In general the fees and expenses paid to lawyers appointed by the Court are dealt with pursuant to the Family Courts Fees Regulations 2000.3 However, those regulations do not apply to fees and expenses for Court appointed lawyers who act for applicants under s 105 of the CCA. It appears that the fees and expenses for those lawyers are paid out of public money appropriated for the purpose.4 Furthermore, whilst s 135A of the CCA generally allows the Court to order that the parties reimburse the Crown the prescribed portion of the amount paid by the Crown in respect of the fees and expenses of the lawyer appointed under s 7, such orders cannot be made in proceedings for the return of a child under s 105.5
[11] Also relevant to the issue of costs are ss 120 and 121. Whilst security for costs orders are generally permitted in proceedings under the CCA, s 120 excludes such orders when it comes to applications brought under subpart four of the CCA:
120 Security for costs, etc
(1)A person who makes an application under section 102 or section 103 or section 105 or section 112 or section 113 must not be required to provide any security, bond, or deposit for the purpose of guaranteeing the payment of, or to make any payment towards, the costs or expenses of (or incidental to) any proceedings relating to that application.
(2)Subsection (1) is subject to section 131(4) (as applied by section 116(3)).
3 See s 131(5)(a) of the CCA and see s 16D of the Family Courts Act 1980 which provides for regulations to be made determining the fees payable for a lawyer appointed to represent a young person or child under a number of specified sections. Sections 7 and 130 of the CCA are listed but not s 116. Schedule 2 of the Regulations states that the fees payable for an application under s 48 (for a parenting order) and an application under s 56(1) (an order varying or discharging a parenting order) is $220.
4 The commentary in Brookers Family Law – Child Law (online loosesleaf ed, Thomson Reuters) at [CC116.05] suggests that s 116 does not explicitly impose a duty on the Central Authority to pay the lawyer’s fees. However, it states that it can arguably be inferred from s 116(3) and 131 that the fees of the lawyer will be paid out of public funds. This interpretation is consistent with the objective of the Convention.
5 See s 131(5)(a) of the CCA.
[12] Section 121 provides for the recovery of costs associated with the return of a child pursuant to an order made under s 105. However, the CCA makes no express provision for recovery of costs by persons who have successfully resisted the making of such orders:
121 Costs of returning child: order for payment or refund when order under section 105(2) applied for or made
(1)A court that makes an order under section 105(2) for the return of a child may, if it thinks just, make an order directing that the whole or part of any costs of (or incidental to) returning the child in accordance with the order (for example, the cost and travelling expenses of any necessary escort) must be paid by the person who removed the child to New Zealand.
(2)If a court makes an order under section 105(2) for the return of a child, and the whole or part of any costs of (or incidental to) returning the child in accordance with the order (for example, the cost and travelling expenses of any necessary escort) are paid by the Crown,—
(a)the court may, on an application by the Authority, order the person who removed the child to New Zealand to refund to the Crown any amount the court specifies in respect of the costs so paid by the Crown; and
(b)the amount ordered to be refunded is a debt due to the Crown by that person, and is recoverable accordingly in a court of competent jurisdiction.
(3)Subsection (4) applies to a District Court if—
(a)an application is made under section 103 in respect of a child; and
(b)the child is returned voluntarily; and
(c)that return is due, in whole or in part, to the intervention of the Authority; and
(d)any costs of (or incidental to) returning the child (for example, the cost and travelling expenses of any necessary escort) are paid by the Crown or by any other person (other than the person who removed the child to New Zealand).
(4)In the situation specified in subsection (3),—
(a)the District Court may, on an application by the Authority (in a case where a refund of the costs is sought on behalf of the Crown), or (in any other case) by that other person, order the person who removed the child to New Zealand to refund to the Crown or, as the case may be, to that other person any amount the court specifies in respect of the costs so paid by the Crown or that other person; and
(b)the amount ordered to be refunded is a debt due to the Crown or, as the case may be, that other person, by the person who removed the child to New Zealand, and is recoverable accordingly in a court of competent jurisdiction.
[13]Finally, the CCA provides for a general discretion to make costs orders:
142 Costs
(1)In any proceedings under this Act, the court may make any order as to costs it thinks fit.
(2)An order under this section may be made either in addition to, or instead of, an order under section 71 or section 87 or section 121.
(3)This section is subject to sections 131 and 135.
[14] As regards the relevant articles in the Hague Convention, art 22 provides the basis for s 120 of the CCA. Article 22 specifically addresses the restriction on the availability of orders like security for costs; it states:
No security, bond or deposit, however described, shall be required to guarantee the payment of costs and expenses in the judicial or administrative proceedings falling within the scope of this Convention.
[15] Article 26 of the Hague Convention imposes further limits on recovery of costs, although this article enables a convention state to place reservations on the scope of art 26; it provides:
Each Central Authority shall bear its own costs in applying this Convention.
Central Authorities and other public services of Contracting States shall not impose any charges in relation to applications submitted under this Convention. In particular, they may not require any payment from the applicant towards the costs and expenses of the proceedings or, where applicable, those arising from the participation of legal counsel or advisers. However, they may require the payment of the expenses incurred or to be incurred in implementing the return of the child.
However, a Contracting State may, by making a reservation in accordance with Article 42, declare that it shall not be bound to assume any costs referred to in the preceding paragraph resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice.
Upon ordering the return of a child or issuing an order concerning rights of access under this Convention, the judicial or administrative authorities may, where appropriate, direct the person who removed or retained the child, or who prevented the exercise of rights of access, to pay necessary expenses
incurred by or on behalf of the applicant, including travel expenses, any costs incurred or payments made for locating the child, the costs of legal representation of the applicant, and those of returning the child.
[16] When New Zealand acceded to the Hague Convention on 31 May 1991 it reserved its right in accordance with art 42 “not to be bound to assume the costs referred to in art 26 resulting from the participation of legal counsel or advisers or from court proceedings, except insofar as those costs may be covered by its system of legal aid and advice”.
Parties’ submissions
[17] The appellant argues that an award of costs against her is prohibited by virtue of s 100(2) of the CCA. She argues that the appointment of the lawyer to represent her was in performance of the Secretary’s duty and function. Section 100(2) prohibits the Secretary being made subject to any order to pay costs in relation to the exercise of the Secretary’s duties, powers, or functions.
[18] In addition, the appellant contends that the Crown may not require the appellant to pay the Authority’s costs. She submits that with proceedings under subpart 4 of part 2 of the CCA legal costs are seen as an inter-state treaty obligation. In this regard she refers to art 22 of the Hague Convention which provides the basis for s 120 of the CCA. She also refers to s 120 and submits that the restriction this provision imposes on orders for security for costs indicates that costs orders should not be made against persons in her position.
[19] The respondents rely on r 14.2 of the High Court Rules, which makes general provision for costs awards. They have not addressed the question of whether the appellant is in a special position that precludes a costs order being made against her.
Relevant case law
[20] Abraham v Abraham is an appeal to this Court from a decision of the Family Court to award costs to a respondent who had successfully opposed an application for the removal of a child from New Zealand under the Hague Convention. In the High Court Greig J considered whether s 27 of the Guardianship Amendment Act 1991 –
the equivalent section to what is now s 120 – prohibited the costs award. First, Greig J found that the scope of s 27 went beyond securities, bonds or deposits and included payments at any stage of the proceedings:6
… the reference to the making of any payment relates not to securities, bonds or deposits but to any payment that the applicant might be required to make at any stage of the proceedings.
[21] Secondly, Greig J took note of s 27B of the same Act, which provided that “in any proceedings under this Act the Court may make such order as to costs as it thinks fit.” Whilst s 27B pre-dated the 1991 Amendment Act, s 5 of the Acts Interpretation Act 1924 extended the operation of s 27B to the provisions of the 1991 Amendment Act. This left Greig J in the position of having to reconcile the prohibition on payments imposed by s 27 with the authority to award costs under s 27B.
[22] Greig J considered arts 22 and 26 of the Hague Convention and the limits that those provisions imposed on payments arising from proceedings that invoked the Hague Convention. This led him to conclude that the prohibition on payments in s 27 was restricted to the costs and expenses of or incidental to the proceedings which are incurred or payable by the Authority in relation to and arising out of the applicant’s application. He found that:7
The prohibition of any requirement of payment by the applicant is limited to the relationship of the applicant with the Central Authority and the costs and expenses which may be incurred by the latter in pursuing the application. It does not affect the general discretion to make awards of costs in favour of a respondent.
[23] If the analysis in Abraham were to be applied to the present case s 120 would only prohibit recovery of costs, and therefore orders for costs, as between the applicant and the Authority.
[24] In Collins v Lowndes a parent who appealed unsuccessfully against a Family Court decision that a child not be returned to France was ordered to pay $5,000 costs.
6 Abraham v Abraham [1997] 3 NZLR 368 (HC) at 371.
7 At 372.
However, there was no discussion concerning the provisions of the Guardianship Act or the authority to make such an order.8
[25] A different approach was taken by Heath J in CRP v LPD, which is a case to which s 120 applied .9 CRP v LPD was an appeal to this Court from a refusal by the Family Court to make a removal order under s 105 of the CCA. The question before Heath J was whether the appellant should be required to pay security for costs, which is a standard requirement for appeals to this Court’s civil jurisdiction, though it can be waived by the Court.
[26] Heath J recognised that s 120 did not explicitly apply to security for costs on appeal. Nonetheless, he considered that the policy reasons behind ss 100 and 120 of the CCA, which were against imposing payment obligations on applicants under the Hague Convention, were clear and relevant to the matter before him. He also paid regard to New Zealand’s obligations under the Hague Convention, and the Authority’s role in ensuring those obligations are carried out. All of which led Heath J to conclude that that there were strong public policy considerations for waiving the general requirement for security for costs to be paid when bringing an appeal to this Court. In arriving at this result Heath J referred to the decision in Abraham noting:
[11] Abraham is distinguishable because it relates to the jurisdiction to award costs after the event, as opposed to a prior order that security for a respondent’s costs be ordered. In any event, as the counterpart of s 100(2) (s 7 of the Guardianship Amendment Act 1991) was not considered by Grieg J, it is possible that the actual holding in Abraham may need to be revisited at some time.
Discussion
[27] As was the case in Abraham, I am faced with provisions that explicitly restrict orders for payments against applicants who invoke the Hague Convention, as well as a more general provision in the CCA that permits the making of costs orders following the conclusion of proceedings brought under that Act.10 However, unlike in Abraham
8 Collins v Lowndes AP115/SW02 HC Auckland, 6 March 2003.
9 CRP v LPD [2012] NZHC 1029.
10 Section 142 authorises the Court in any proceedings under the CCA to make any order as to costs as it thinks fit. I consider that “any proceedings under (the) Act” include an appeal under s 143. Section 143(4) incorporates the High Court Rules subject to all necessary modifications. Therefore the authority to order costs may also be available under r 14.1 of the High Court Rules.
and as was the case in CRP v LPD, the prohibition on security for costs in s 120 is not directly engaged as the costs related to the appeal rather than the “application”. Nevertheless, I take a different view from that expressed in Abraham on the effect of the restrictions.
[28] I consider that the restriction on “ordering security for costs etc” that is now to be found in s 120 of the CCA, and formerly in s 27 of the Guardianship Amendment Act 1991, does not go so far as to prohibit awards of costs following the conclusion of proceedings under s 105 of the CCA. So, in this regard I take a narrower view of s 120 than was taken in Abraham of s 120’s predecessor.
[29] I consider that the language and purpose of s 120 are directed at ensuring that financial obstacles in the form of pre-disposition orders for securities or bonds etc do not hinder an applicant from bringing an application under s 105. Such outcomes would be contrary to the purposes of subpart 4 of the CCA and New Zealand’s obligations under the Hague Convention. These policy considerations are quite different from those that are engaged when it comes to considering whether to award costs or not against an unsuccessful applicant after the close of a s 105 proceeding.
[30] Moreover, the purpose of the Hague Convention is to “secure the prompt return of children wrongfully removed to or retained in a Contracting State”. A pre- disposition order for security for costs can also hinder achieving this purpose. Costs after the applicant has been unsuccessful in applying for an order do not have the same effect for that particular applicant.
[31] Secondly, I consider that the scope of s 120, and its former equivalent, goes beyond restricting the prohibition against ordering “security for costs etc” to the relationship between an applicant and the Secretary. If s 120 only concerned the relationship between the applicant and the Authority, then it could not prohibit pre- disposition orders for security for costs as between a private party applicant and a respondent. However, such an outcome would be inconsistent with the purpose of art 22 of the Hague Convention which has been described in the following way:11
11 Elise Pérez-Vera Explanatory Report on the 1980 Hague Child Abduction Convention (HCCH Publications, 1982) at [130].
130 Following a marked tendency to favour the deletion from the Convention of procedural measures which distinguish against foreigners, this article declares that no security, bond or deposit, however described, shall be required within the context of the Convention. … an extremely liberal solution was arrived at, such as was required by a convention built upon the basic idea of protecting children. Secondly, the security, bond or deposit from which foreigners are exempt are those which, in any legal system and howsoever described, are meant to guarantee respect for decisions on the payment of costs and expenses arising out of legal proceedings. … On the other hand, … it does not prevent other types of security bond or deposit being required, particularly those which are imposed so as to guarantee the proper exercise of access rights.
[32] The commentary shows that the concern in art 22 is with provisions such as are to be found in High Court Rules r 5.45 or r 5.48 of the District Courts Rules12 which make a plaintiff who is not a New Zealand resident pay security for costs to avoid later issues with enforcement.
[33] My view of s 120 and its former equivalent is different from the view taken in Abraham. Nonetheless, for different reasons, I have reached the same conclusion as in Abraham, I consider that s 120 does not prohibit an order for costs following the determination of a s 105 application.
[34] Section 100(2) is explicitly directed at rendering the Secretary immune from any order to pay costs in proceedings under the CCA, either at first instance or on appeal. I see no basis for adopting an expansive reading of s 100(2) that includes private persons who apply for orders under s 105.
[35] Then there is s 142 which gives the Court a broad discretion to award costs in any proceedings under the CCA. This general ability to award costs is specifically stated to be subject to ss 131 and 121, which deal with payment of the lawyer appointed to represent the applicant and the costs of returning the child respectively. Parliament could have further confined s 142 by excluding proceedings under s 105 from its scope, but it did not do so.
12 Applicable in the Family Court by virtue of r 207B of the Family Court Rules 2002.
[36] It follows that on the view that I take of s 120 and s 100(2), there is no legal impediment to this Court making a costs order against the appellant in the ordinary way where costs would usually follow the event.
[37] However, I consider that there are good policy reasons for this Court hesitating to exercise its discretion to award costs under s 142 in a case like the present.
[38] The language of the Hague Convention contemplates that the Authority will either commence proceedings to have an abducted child returned to his or her country of residence on behalf of an applicant, or facilitate the institution of proceedings.13 In Australia for example the Authority initiates proceedings on behalf of the applicant.14
[39] Under s 116(2) of the CCA, one of the functions of the Authority is to appoint a lawyer to act for the applicant for the purposes of the application or any appeal that the applicant might make.15 The Authority is also under an obligation to take action to “secure the prompt return of the child to a Contracting State”. The Authority must also facilitate the making of an application under s 105 by, or on behalf of, the applicant. Despite those provisions in New Zealand, the practice has developed for proceedings in which the Authority performs a facilitative role to be brought in the name of the private party applicant rather than the Authority. However, some proceedings are still taken with the Central Authority named as the applicant.16
[40] There is no doubt that when the Authority unsuccessfully brings proceedings under s 105, s 100(2) precludes the making of a costs order against the Authority. Why should the outcome be any different when the Authority has simply facilitated a private party bringing such proceedings? In short, does the question of the availability of costs against this type of unsuccessful applicant only arise in New Zealand because of the procedural approach that is taken in this country?
13 See art 7 of the Hague Convention, set out in sch 1 of the CCA.
14 See Jennifer Wademan “The Hague Convention on International Child Abduction: the role of the Central Authority in Court Proceedings” (2008) 6 NZFLJ 105.
15 Section 116(1)(b) recognises that an applicant under s 105 may appoint a lawyer privately.
16 See for example New Zealand Central Authority v Hubbard [2015] NZFC 3205. The party in this case is described as “New Zealand Central Authority on Behalf of Viran Ubad”.
[41] The Authority’s role under s 116 is subject to s 123, which provides that nothing in subpart 4 requires the Authority to take any action in respect of an application if it is manifest that the application is not well founded. So, whether the Authority brings the s 105 application or simply facilitates it by appointing a lawyer to act for the private party applicant, who has sought the Authority’s assistance, in both instances the Authority has the ability to weed out poorly founded cases. In this regard, I see a difference between private party applicants who have engaged their own lawyers and so have full control of their proceedings, and those applicants who rely on the assistance of the Authority in appointing a lawyer under s 116. The former may bring unmeritorious proceedings under s 105, which warrant an award of costs against them. Whereas as the latter will have been subject to the Authority’s oversight.
[42] There is nothing in the CCA that suggests there is any difference between an application which the Authority takes in its own name and where it appoints a lawyer to act for the applicant. Accordingly, I see no policy reason why an unsuccessful private party applicant should be subject to a costs award when the Authority has appointed a lawyer to act for him or her but not when the Authority has instigated proceedings on the applicant’s behalf.
[43] In his judgment in CRP v LPD Heath J considered that s 100(2) was an important factor against him ordering security for costs on the appeal. Heath J also relied on the role of the Authority in ensuring that New Zealand’s obligations under the Hague Convention are carried out. I consider that the same applies here, which leads me to conclude that there is no proper basis for awarding costs against the appellant.
[44] A further reason against awarding costs can be seen from other aspects of the scheme of the CCA. First, unless there are special circumstances the combined effect of s 131 and 135A require the Court must make an order for the parties to reimburse to the Crown the costs of the lawyer appointed to represent the child in proceedings brought under the CCA. But, s 131(5) expressly prohibits such an order in the case of a lawyer appointed under s 116 to appear for an applicant in a s 105 proceeding, which means that neither party in a s105 proceeding can be subject to an order to reimburse the costs of the lawyer appointed by the Authority. As the authority to order costs in s
142 is subject to s 131, an unsuccessful respondent in proceedings under s 105 will avoid an order for costs. It would seem odd, therefore, if in the present case the respondents could not have been subject to a costs award had they been unsuccessful whereas the appellant can be.17
[45] Finally, it is also possible that the prospect of an adverse award of costs against an unsuccessful applicant may deter a person from making an application for the return of a child, which could hinder the objects of the Hague Convention.
[46] Like Heath J in CRP v LPD, despite there being no express legislative prohibition against ordering costs in the present circumstances, I find that there are strong policy reasons for treating a private party whose application under s 105 is facilitated by the Authority in the same fashion as would be the case had the Authority been the applicant/appellant. Nor can I see any special circumstances here that would warrant me departing from this approach. It follows that I decline to award costs against the appellant.
Conclusion
[47] I have found that when, as is the case here, a private party unsuccessfully brings an application under s 105 of the CCA there is jurisdiction to make an award of costs against him or her.
[48] However, I have also found that when such proceeding has been facilitated by the Authority and there are no special circumstances warranting an award of costs the proper approach in accordance with the purpose and policy of subpart 4 of part 2 of the CCA and the Hague Convention is for the Court to refuse to exercise its discretion to award costs.
17 The respondents could, however, have been subject to pay the costs of returning the child as set out in s 121.
Result
[49]The respondents’ application for costs is dismissed.
0