Bridge v Blue

[2025] NZHC 2854

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,

PLEASE SEE https://www.justice.govt.nz/family/family-court/after-the-family- court/restrictions-on-publishing-information/

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2025-441-002

[2025] NZHC 2854

UNDER

the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court at Napier

BETWEEN

MS BRIDGE

Appellant

AND

MR BLUE

Respondent

On the papers:

30 September 2025

Appearances:

P A Fairbrother and J Kim for Appellant

J D Cameron and L J Williams for Respondent L A MacLennan for Lawyer for the Child

Judgment:

30 September 2025

JUDGMENT OF GRICE J

(Costs) (anonymous version)

BRIDGE v BLUE [2025] NZHC 2854 [30 September 2025]

Introduction

[1]                  Ms Bridge and Mr Blue were unable to agree on the school that their young child should attend.1 Ms Bridge unsuccessfully appealed against the Family Court’s decision that the child go a local public school favoured by Mr Blue.2 Ms Bridge, herself having trained as a teacher, considered that a private school in the area would suit the child better.

[2]                  In the substantive appeal, I concluded that the Family Court Judge had made no error in relation to the application of the burden of proof and had correctly applied the relevant principles in finding that it was in the child’s best interests to attend the local school. Nor was he in error in assessing the quality of education and opportunities offered by the respective schools. In addition, the Judge had taken into account the child’s views, albeit he ultimately decided against her wish to go to the private school. The recommendation of the lawyer for the child was that the child go to the public school.

[3]                  Mr Blue now applies for costs against Ms Bridge, on the basis there are “exceptional circumstances” justifying an award of costs against her, despite the fact she is legally aided. He seeks costs of $19,120. Ms Bridge opposes the application, noting that she is required to repay her grant of aid. She says that there are no exceptional circumstances arising from her conduct in relation to the proceedings which would allow costs to be awarded, given that she is legally aided.

Legal principles

[4]                  Section 45 of the Legal Services Act 2011 governs the award of costs against a legally aided person. Insofar as relevant, it reads:

45       Liability of aided person for costs

(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the

1      The published judgment has been anonymised using fictional names for the parties and the child: Ms Bridge, Mr Blue and Bree respectively.

2      Bridge v Blue [2025] NZHC 1669 [the appeal judgment].

circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

(a)any conduct that causes the other party to incur unnecessary cost:

(b)any failure to comply with the procedural rules and orders of the court:

(c)any misleading or deceitful conduct:

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)any other conduct that abuses the processes of the court.

(4)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

…

[5]                  “Exceptional circumstances” mean something “quite out of the ordinary”.3 This may cover a variety of diverse circumstances, and therefore each case must be approached in a fact-specific way.4

[6]                  Behaviour throughout the proceedings which has led to additional or unnecessary costs may qualify as exceptional circumstances.  Ms Fairbrother, for  Ms Bridge, cites JPS v KNB (No 1) as an example.5 In that case the respondent’s defence of a parenting application was found to be “unmeritorious”, “clearly doomed to failure”, and “totally without foundation” in the circumstances.6 In addition, the

3      Ngati Tama Custodian Trustee Ltd v Phillips [2020] NZCA 252 at [7], citing Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31].

4      Awa v Independent News Auckland Ltd [1996] 2 NZLR 184 (HC) at 186.

5      JPS v KNB (No 1) FC Palmerston North FAM-2006-054-888, 18 December 2008.

6      At [27]–[29].

respondent had not complied with court directions. This was found to constitute exceptional circumstances.

Grounds for costs

[7]                  Ms Williams, for Mr Blue, submits that the appeal was doomed to failure, and Ms Bridge unreasonably pursued the appeal knowing she was not under the same pressure to pay legal costs as Mr Blue. Further, she submits that Ms Bridge unreasonably pursued an application to adduce further evidence, did not cooperate in the joint filing of case management memoranda, and sought a stay of the Family Court proceedings pending appeal which she then abandoned.

[8]                  Ms Fairbrother, for Ms Bridge, says in opposition that while the issues before the Court were straightforward, there was a lot at stake flowing from the determination as to what school the child should attend. The evidence Ms Bridge adduced was in part updating and in part to cover points concerning the funding of the private education, which she saw as necessary in view of the Family Court’s findings that the funding had not been established. In addition, Ms Fairbrother says the allegation that Ms Bridge did not cooperate in the filing of joint memoranda is incorrect. She says separate memorandum were filed because not all matters were agreed upon by the time filing was due, which is part of normal due process and should not be attributed to the fault of one party. She also submits that the bringing of the application for a stay was not unreasonable in the circumstances.

Should costs be awarded against Ms Bridge?

[9]                  The Family Court Judge assessed the issue of schooling as “reasonably balanced”, noting that both parents had advanced reasonable positions.7 In those circumstances, he declined to make any order for costs between the parties, nor to order a contribution toward the costs of appointing the lawyer for the child.8

7      [Blue] v [Bridge] [2024] NZFC 15770 at [27] and [39].

8 At [40].

[10]              While Ms Bridge was unsuccessful in her appeal, she mounted her arguments in a measured way and counsel made appropriate submissions. The appeal grounds could not be said to be hopeless or completely unmeritorious.

[11]              There was no suggestion of any failure to comply with the procedural rules and orders of the court, nor any abuse of the Court’s processes.   I do not consider       Ms Bridge conducted the appeal in a manner which could be said to give rise to extraordinary circumstances. While the court encourages parties to cooperate in filing joint memoranda, Ms Fairbrother explained the reasons for not doing so in this case. In addition, Ms Bridge explained that she discontinued the stay application when it became apparent that arrangements for a relatively early fixture could be made. I accept, as Ms Williams pointed out, that responding to the application to adduce further evidence would have added to Mr Blue’s costs, despite the application being dealt with at the appeal hearing.

[12]              In conclusion, the threshold of exceptional circumstances has not been met. While not all appeals involve applications for a stay and to adduce further evidence, they are not uncommon.

[13]              In the event that I did find exceptional circumstances had been established, Ms Fairbrother argued that the principle relating to the paramountcy of the child’s welfare and best interests militated against a cost order.9 The impact on the child of any award of costs must be considered. In this case Ms Bridge is not in fulltime employment. Also, parents acting in the interests of their children should not be inhibited from seeking the courts’ assistance. However, those considerations may not apply to the same extent on appeal as they do in relation to costs at first instance.10 Costs will be awarded where litigation has been pursued and/or conducted unreasonably.

9      Care of Children Act 2004, s 4. That section provides that the welfare and best interests of a child must be the first and paramount consideration in the application of that Act and in any other proceedings involving the guardianship of, or the role of providing day-to-day care for, or contact with, a child.

10 G v Cox [2008] NZCA 146 at [28].

[14]              In my view, the appeal was not pursued unreasonably, together with the paramountcy of the child’s best interests, weigh against a costs award in this case.

Contribution to lawyer for the child costs

[15]              Ms MacLennan was appointed to act as lawyer for the child on appeal. She also acted in that role in the Family Court proceeding.11 Section 135A of the Care of Children Act 2004 sets out the process for assessing and ordering costs contributions from parties towards the costs of lawyers appointed under the Act to represent children.

[16]              The Family Court Judge considered that any contribution to the lawyer for the child costs pursuant to s 135A was inappropriate. He said:

[40]    As the parties have taken reasonable positions and arguments, this is  a case where it would be inappropriate for any matters of cost between the parties to arise and certainly not a situation where I would be levying the costs incurred by the Court through Ms MacLennan's appointment against either of the parents. Earlier on I had given a warning about the potential for costs, simply so the parents were aware that there is potential. But having read their evidence and heard from them, I accept that they were both advancing reasonable perspectives in what they see as the welfare and best interest of their daughter. I emphasise as well that either of their positions was achievable and it came down to a fine balance of those areas of uncertainty.

[17]              In view of the comments of the Judge at first instance, and given Mr Blue had little choice but to participate in the appeal in order to support the Family Court’s decision and the recommendation of the lawyer for the child, it would be inappropriate for him to contribute to the costs of the lawyer appointed on appeal. Mr Blue’s contribution is therefore set at zero.

[18]              The fact that Ms Bridge is legally aided precludes an order for a cost contribution being made against her unless exceptional circumstances are established.12 This Court in Re Karaka concluded that s 135A of the Care of Children Act is subject to s 45(2) of the Legal Services Act. Therefore, a legally aided party is not required to pay costs for court-appointed lawyers unless the exceptions set out in

11 The appointment of lawyer for the child was made on the request of both parties following a callover of the matter on  24 February 2025:  [Bridge] v [Blue]  HC Napier  CIV-2025-441-2,  25 February 2025 (Minute of La Hood J)

12 Re Karaka [2016] NZHC 183, [2016] NZFLR 64 at [59].

s  45  of  the  Legal  Services  Act  apply.    As I have found above, exceptional circumstances do not apply here.

Conclusion

[19]The application for costs is declined for the reasons set out above.

Grice J

Solicitors:

Fairbrother Family Law, Napier for Appellant Willis Legal, Napier for Respondent