F v F

[2015] NZHC 239

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, 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 INVERCARGILL REGISTRY

CIV-2010-425-000440 [2015] NZHC 239

BETWEEN	F Appellant
AND	F Respondent

Hearing:	On the papers
Counsel:	JB Walker for Appellant KR Templer for Respondent
Judgment:	23 February 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 23 February 2015 at 4.30 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Jeff Walker & Cleland Murdoch, Invercargill

AWS Legal, Invercargill

F v F [2015] NZHC 239 [23 February 2015]

[1]      On 11 February 2011, I delivered a judgment of an appeal against a decision of the Family Court in Invercargill (Judge PF Boshier) delivered on 6 August 2010. That decision declined to vary a parenting order made by the same Judge on 17 July

2009 by which the children were in the day to day care of father.  That order effectively confirmed an earlier order by Judge Flatley.

[2]      The appeal was heard over two days, with the benefit of a further report from an expert.  It resulted in some minor amendments of the orders made by Judge Boshier but left the day to day care of the children with the father.  At the end of the judgment I reserve costs, saying, “I favour awarding costs to the respondent, unless he is legally aided”.

[3]      My next contact with the file was on 5 August 2014, three and a half years after the judgment, when I received an enquiry from the Registrar of the Invercargill Court regarding the refund of security of costs.  The sequence of correspondence, as far as I can tell, is that on 17 February 2011, the week after the judgment, the solicitor for the father advised the Registrar of the High Court in Christchurch that there would be an application for costs and it was anticipated that would be filed and served by 12 April 2011.

[4]      On 19 September 2012, the Registrar advised counsel on both sides that “the security for costs (paid by the appellant) was still in our law trust account.  Please advise who these should be paid for”.

[5]      Mr Walker advised these should be paid to Mrs F, who had put up the security for costs.  That was on 20 September 2012.  On 30 July 2014, Mr Walker reiterated this request, copying it to counsel for the husband.   On 8 August 2014, counsel for the father filed an application for costs generally.  This was opposed and I have received memorandum from both parties.

[6]      As  the  judgment shows,  this  was  a  difficult  case.    Indeed,  it  could  be described as a very difficult case.  In that sense, the appeal was meritorious.  The judgment records in part that the children were happy to live with the mother as that was a wealthier household.  That fact may have, and I think did, influence my initial

judgment that the father should recover costs, having been put to the expense of opposing the appeal and being largely successful.

[7]      In the submissions before the Court, I can now see that the plaintiff is of very limited means.

[8]      The father has been very slow in making an application for costs.   He has neglected to do so over several years.  In some measure, this dispute as to costs now has only come to a head because of pressure from the Registrar to resolve the security of costs.

[9]      In the circumstances, I think it is now too late for the father to see costs.  I do not favour the mother receiving costs.  I think justice will be done if the security for costs is repaid to the mother. There is no order for costs.