F v M HC Rotorua AP 2/01

[2001] NZHC 577

IN THE HIGH COURT OF NEW ZEALAND
ROTORUA REGISTRY AP 2/01

Under the Guardianship Act 1968

BETWEEN F
Appellant

AND M
Respondent

Hearing: 23 April 2001

Counsel: W Cathcart for appellant
A Tisch for respondent
A Cecil-Gibson for Crown

Judgment: 29 June 2001

JUDGMENT OF NICHOLSON J

Solicitors:
W Cathcart, PO Box 75-146, Manurewa for Appellant
F Collins, PO Box 169, Taupo for Respondent
Crown Law Office, DX SP20208, Wellington Central for Crown

INTRODUCTION

[1] F “(the father”) and M (“the mother”) are parents of three daughters - C1 born in April 1988, and twins C2 and C3 born in August 1990. When they separated M had the children. After an acrimonious three day hearing in December 1995 the Family Court ordered custody with M with weekend and holiday access to F. In early 1999 the girls wanted the access terms to be changed to allow them to play netball on successive Saturdays and to attend birthday parties of family and friends. F resisted this on the basis that it interfered with his parental rights. M applied to the Family Court for variation of the access terms. F opposed alleging that the application was an abuse of the process of the Court because of spite and financial motives.

[2] On 27 August 1999 Family Court Judge Whitehead appointed Mr Dowthwait to act as counsel for the children, he having acted as counsel for them in the initial custody and access proceedings. F challenged that decision by appeal to the High Court. That appeal was dismissed by Anderson J on 17 December 1999. F thereupon appealed further to the Court of Appeal which dismissed that appeal on 27 March 2000. When the application for variation of access and the associated defences of abuse of process was set down for hearing in May 2000, Mr Cathcart, counsel for F, applied to Judge Whitehead for Mr Dowthwait’s appointment to be revoked and for the proceedings to be heard by a Family Court Judge other than Judge Whitehead.

[3] On 8 May 2000 Judge Whitehead refused to revoke Mr Dowthwait’s appointment but agreed to stand down from hearing the variation application. This was set down for hearing at short notice by His Honour Judge Mahoney, Principal Family Court Judge. Judge Mahoney struck out the defences of abuse of process but decided in the circumstances not to vary the present access orders. He invited submissions on costs. After receiving them, he ordered F to pay $6,500 costs to M and for F to refund $2,500 to the Crown on account of costs of counsel for the children and M to refund $725 to the Crown on account of such costs.

[4] F has appealed against those costs orders.

POINTS OF APPEAL

[5] Mr Cathcart submitted that the Judge erred by failing to consider the principle that costs followed the event and failing to consider F’s modest financial means. The other points of appeal stated and argued by Mr Cathcart amounted to an attempt to justify and vindicate the way in which F had contested the case, particularly his allegations of disqualifying conduct on M’s part and his abuse of process defences.

[6] Mr Tisch submitted that Judge Mahoney correctly exercised the wide discretion which he had to order payment of costs on the basis of M’s conduct of the case and not on an inappropriate win/lose basis.

[7] Ms Cecil-Gibson emphasised the reluctance of an appellate Court to interfere with the exercise of a discretion to award costs, particularly in the case of the wide discretion granted to the Family Court.

PERTINENT LAW

[8] The variation of access proceedings were under the Guardianship Act 1968 (“the Act”). Section 27B of the Act provides:

“In any proceedings under this Act the Court may make such order as to costs as it thinks fit.”

[9] The discretion thereby granted is not subject to any of the specific general principles which apply to the determination of costs in civil proceedings subject to the High Court Rules. Because of the provision of s 23 of the Act that in any proceeding relating to access to a child, the Court shall have regard to the welfare of the child as the first and paramount consideration and shall have regard to the conduct of any parent to the extent only that such conduct is relevant to the welfare of the child, the general principle stated by R 47(a) of the High Court Rules that the party who fails with respect to a proceeding should pay costs to the party who succeeds does not apply with the same rationale and relevance. The only people who should succeed in custody and access proceedings should be the children and whether or not a parent regards himself or herself as having succeeded or failed should be coincidental and irrelevant. Unfortunately some parents use children as trophies in a personal battle. Judges discourage this and focus on the welfare of the child. To award costs on the basis of apparent parental success or failure would be contrary to the object, principles and practice of the Act. The two primary considerations in deciding costs in proceedings about children should be the reason why a party brought or contested the proceedings and their conduct in doing so.

[10] As stated by Penlington J in Josling v Josling Hamilton Registry, AP 94/95, 28 May 1997, p 18:

“Whereas in ordinary civil litigation normally costs follow the event that rule does not necessarily apply with the same force in proceedings under the Guardianship Act.

[11] In B v G (1994) 12 FRNZ 515, 517 Morris J said:

‘I do not accept, as a matter of principle, in proceedings of this nature costs necessarily follow the event. No statutory provisions so provide and indeed the discretion given under the statute is an indication to the contrary. That is understandable as in so many of these proceedings the paramount interest is that of the child and not of the parties. I suspect also in many cases this discretion is there so that essentially family proceedings and disputes can be settled on a much more amicable basis with the future in mind rather than the normal run of civil cases where parties are unlikely to meet again and know at the beginning costs will, without doubt, follow the result.’”

[12] In general civil proceedings the manner in which a party conducts proceedings so as to unnecessarily complicate and lengthen the proceedings can be a factor to be taken into account in deciding whether to order costs - Hamilton City Council v Waikato Electric Authority & Ors, Hammond J, Hamilton Registry, CP 21/93, 29 September 1993. In my view this conduct factor is one of the two primary considerations to be taken in account when exercising the wide discretion to order costs given by the Act.

[13] The financial situation of a party and his or her ability to pay costs is not a primary consideration in exercising the costs discretion - Smith v Sanders [1992] NZFLR 412.

[14] On appeal a Court is reluctant to interfere with the exercise of the discretion to order costs and will only do so if it is satisfied that the Judge applied a wrong principle or failed to correctly apply the applicable principle - Cates v Glass [1920] NZLR 37. That reluctance is stronger in respect of the exercise of the costs discretion given by the Act to the specialised jurisdiction of the Family Court.

MOTIVES AND CONDUCT

[15] In the appeal judgment of 17 December 1999 Anderson J said:

“The interests of the children’s welfare seem to have been subordinated over the past seven or eight months to the father’s perception of his own rights. The chronology of the matrimonial history since the mother and father separated is, quite frankly unduly litigious. It is a matter of dismay to this Court that something as straight forward as considering whether access should be given some flexibility in order to meet ordinary incidents of a child’s life, such as attending birthday parties, is still unresolved.” (para 19)

[16] In dealing with an interlocutory aspect of the application on 15 February 2000, Judge Whitehead said:

“This application (for variation of access) was first filed on 28 May 1999 or thereabouts and subsequent to that time many procedural delays have been undertaken causing, in my determination, the interests of the children to be subordinated by that of the parents.

We are approaching the anniversary of the filing of the application. I have expressed in a number of decisions my concern that the delay is not addressing the issues relating to the children’s interests.” - emphasis added

[17] In the judgment he gave on 10 May 2000 on the variation of access application, Judge Mahoney said:

“Regrettably this application which should have been settled or determined quickly with limited evidence has become lost in a marathon of litigation which has had very little to do with the well being of the three girls and in the course of which their interests have been lost sight of. . . .

As a gesture towards refocusing the attention of the parties on their children who have been waiting for their requests to be dealt with since 1999, I am going to deal first with . . .

[M] took the step of applying to the Court for a variation of the existing order so that the concerns of the children could receive attention. [F] has treated that as an act of bad faith, an attack on his religion as well as his parental authority. It is no such thing and it is regrettable that submissions of his counsel sought to have the Court treat it in that light. [F’s] religion is a factor in the narrow issues before the Court but not in the way it has been represented by his counsel which is extravagant and irrelevant to the scope of these proceedings. I am satisfied that the mother believed that she was promoting the interests of her daughters in applying to the Court, however badly that application has gone subsequently. . . . Although strenuous attempts were made to show her up as a person of bad faith and a liar, I am satisfied that she is a person of integrity and honesty.

These proceedings would have taken quite a different course had [F] and his advisor reflected more on the children waiting for a decision while they pursued other issues with a degree of effort and determination out of all proportion to the simple matters before the Court.

He [F] is a man who has nursed a strong sense of grievance dating back to the break-up of his marriage to [M]. He has felt a sense of persecution for his religious beliefs over the years. He clearly felt that he was in danger of losing ground as a parent. I think that that in part has been the reason for the way in which he has viewed these proceedings and his anxiety to see [M] put down by the Court in a punitive way. It is a matter of concern that the proceedings have been driven in that direction by [F] and his counsel to an extent out of all proportion to the scope of the proceedings.

I have also taken particular account of the fact that the application to the Court was made in this particular case so that the children could be heard and have their wishes taken into account. Despite those various considerations, I have decided not to grant the application. In the ordinary course, Courts should be reluctant to intervene in the way parents organise their children’s time during periods of access. . . .

It would be wrong if this decision was seen as a defeat for [M] and it certainly should not be communicated to the children in that way. She made the application in good faith on their behalf.

I turn to deal with the abuse of process claim . . . . I am satisfied from the evidence that [M] had no such motive (spite or an endeavour to put pressure on [F] to provide financial support). . . . It is clear . . . the reason why [M] had her counsel file a memorandum and then issue proceedings was to enable her children to be heard. I find as a fact that she had no other motive than that.” - emphasis added

[18] In his costs judgment of 21 December 2000 Judge Mahoney said:

“[3] The way in which the proceedings were handled for the respondent father led to the costs of the applicant and of counsel for the child becoming inflated well above the modest level of costs which would otherwise have occurred. . . .

[5] As I listened to the evidence and the line of cross-examination of the mother at the hearing, and read the affidavits, memoranda and submissions of counsel, I became more and more concerned at the way in which a simple application, narrow in focus, was being used to conduct a campaign under the guise of an abuse of process application.

[6] The fact that the Court had to deal with that application on its merits, should not divert attention from the respondent’s own conduct of the case which in my view in itself amounted to an abuse of process. . . .

[8] It was the way in which the father responded to the mother’s initial application which diverted the energies and attention of the parties from the simple issue before the Court, itself capable of resolution through an exchange of affidavits and if necessary a short hearing instead of the protracted course which the proceedings followed.” - emphasis added

DECISION

[19] As is apparent from the quoted parts of his judgments, Judge Mahoney made careful and considered findings about the motives and conduct of F and M in the variation of access proceedings. It is apparent from Judge Mahoney’s judgments and from the comments of Anderson J on appeal and Judge Whitehead on earlier aspects that the motive and conduct of F turned what should have been a simple application, dealt with promptly, into a “marathon of litigation” (to use Judge Mahoney’s description). Judge Mahoney gave appropriate weight to this in exercising his costs discretion. F complains that he is not in a financial position to pay the substantial amount of costs that he was ordered to pay and that this should have caused Judge Mahoney to assess costs at a far lower figure. However, as stated, the financial situation of the parties is not a primary consideration in exercising the costs discretion and F should have taken his financial situation into account when deciding the nature and extent of his participation in the variation of access matters.

[20] I consider that Judge Mahoney correctly exercised the costs discretion. I dismiss the appeal.

COSTS ON APPEAL

[21] The hearing of the costs appeal occupied a full afternoon with the bulk of that occupied by Mr Cathcart. All counsel had prepared written submissions. It is appropriate and just that F pay costs to by the other parties in respect of his unsuccessful appeal. I accordingly order that he pay costs of $1,500 plus disbursements to the respondent and costs of $500 plus disbursements to the Crown.