Drake v Drake - [2024] NZHC 999

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://

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-443-24

[2024] NZHC 999

UNDER the Care of Children Act 2004

IN THE MATTER

of an appeal against a decision from the Family Court at [ ]

BETWEEN

MRS DRAKE

Appellant

AND

MR DRAKE

Respondent

Hearing: On the papers

Counsel:

V A Crawshaw KC and B Jefferson for Appellant R S Stannard for Respondent

C A Gelston – lawyer for the child

Judgment:

30 April 2024

JUDGMENT OF RADICH J

(Costs)

[1] In my decision of 30 August 2023, I allowed an appeal against a Family Court decision1 in which orders were made for the shared care of a child, Jethro Drake, and for his relocation to the town in which his father, Mr Drake, lived.2 In allowing the appeal, I made orders that Jethro was to remain in the town in which his mother,

1 [Drake v Drake] [2023] NZFC 2975.
2 Drake v Drake [2023] NZHC 2390.

DRAKE v DRAKE [2024] NZHC 999 [30 April 2024]

Mrs Drake, lived but that the equal shared care orders made in the Family Court were to remain in place.

[2] Mrs Drake, Jethro’s mother and the successful appellant, seeks costs on a 2B basis, totalling $22,946. Mr Drake opposes the application, submitting that costs should lie where they fall or that a costs decision should at least wait until the outcome of the appeal from my decision that is pending in the Court of Appeal.

Memoranda on costs

[3] In [155] of my 30 August decision, I said it may be that, in the interests of fostering positive relations between Jethro and both of his parents, the parties would wish to let costs issues rest. I said that, however, in the event that costs were sought, memoranda could be filed, giving 15 working days for a memorandum from the appellant and a further 15 working days for a memorandum from the respondent.

[4] Memoranda were filed by the appellant and by the respondent on 20 September and 11 October respectively. However, as I said in my minute of 8 April 2024, the memoranda were referred to me only on 7 April 2024. As I mentioned, it is not clear what had occurred but it would appear that the memoranda were filed and then not referred on. As I said, that is regretted. I said that, given the passage of time, counsel may wish to file brief updating memoranda within 10 working days. I observed that counsel for the respondent had said in the 11 October 2023 memorandum that the respondent wishes to be heard on the question of costs. I said that the Court’s usual practice is to deal with applications for…

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 Drake v Drake

Details

AGLC: Drake v Drake [2024] NZHC 999
Case: [2024] NZHC 999
Decision Date: 30 April 2024

CaseChat Overview and Summary

The High Court was asked to decide an appeal concerning the care and relocation of a child, Jethro Drake, between his parents, Mrs Drake and Mr Drake. The Family Court had ordered that Jethro would live with his father in one town, with shared care arrangements, but the appellant, Mrs Drake, appealed this decision. The High Court allowed the appeal and ruled that Jethro would remain in the town where his mother lived, while maintaining the shared care orders.

The legal issue before the court was whether Mrs Drake should be awarded costs, which she sought on a 2B basis, amounting to $22,946. Mr Drake opposed the application for costs, arguing that costs should either lie where they fall or be deferred until the outcome of the pending appeal in the Court of Appeal. The court had to determine the appropriate exercise of discretion in awarding costs, particularly in the context of a child's welfare and best interests.

Radich J noted that in proceedings under the Care of Children Act, the welfare and best interests of the child are paramount in determining costs. The court must consider the impact of a costs award on the parents' ability to care for the child and to cooperate in the child's best interests. In this case, the court found that awarding costs to Mrs Drake would adversely affect Jethro's welfare and best interests. Mr Drake had defended the appeal in a genuine and responsible manner, and a costs award would significantly hinder his ability to maintain contact with Jethro. Therefore, the court decided to displace the presumption that costs should follow the event and ruled that costs would lie where they fall.

As a result, the court denied Mrs Drake's application for costs, and no costs were awarded to either party. The decision was made on the basis that such an award would negatively impact Jethro's welfare by potentially severing his relationship with his father.

Orders