Fietje v Edwards

[2005] NZCA 141

IN THE COURT OF APPEAL OF NEW ZEALAND

CA61/03

BETWEENLEONARD FIETJE AND JULIETTE MARIANNE FIETJE

Applicants

ANDBELINDA LORRAINE EDWARDS

First Respondent

ANDLUKE PATRICK DAVID O'MALLEY

Second Respondent

Court:Anderson  P, O'Regan and Robertson JJ

Counsel:Applicants in person

No appearance for First Respondent
C D Eason for Second Respondent

Judgment (on the papers):      7 June 2005 

JUDGMENT OF THE COURT

There will be costs in favour of the second respondent in the sum of $1,000 together with disbursements (if any).

REASONS

(Given by Robertson J)

Introduction

[1]       On 14 July 2003, an application for leave to appeal in this matter was dismissed by a Court comprising Blanchard, Tipping and Anderson JJ.

[2]       There is an outstanding question of costs.

[3]       This is a regrettably sad situation revolving around the care of a female child born in January 1999.   The applicants have acted for themselves throughout.  They are the child’s maternal grandparents.  Their daughter, the first respondent, is the child’s mother.  The second respondent is the child’s natural father.

[4]       The applicants sought to adopt the child, whom they have always cared for and continue to do so.  The second respondent objected and sought guardianship and access orders in his favour in the Family Court.

[5]       Attempts to obtain agreement between the relevant parties were unsuccessful. The adoption application came on for hearing in the Family Court in Christchurch on 20 September 2002.  An adoption order was refused.  The applicants appealed to the High Court and, in a reserved decision of 18 December 2002, Hansen J dismissed the appeal.

[6]       The applicants applied to Hansen J for leave to appeal to this Court, which was refused on 10 March 2003. The application failed on jurisdictional grounds and the applicants were ordered to pay $1,000 in favour of the second respondent plus any disbursements. They sought leave from this Court which was refused.

[7]       Notwithstanding very clear indications, the applicants have persisted with the matter arguing in detail about the reality of their caring role and their involvement with their granddaughter, but not coming to terms with the fundamental legal issues which are comprehensively covered in the written submissions in opposition filed on behalf of the second respondent.

[8]       Their present position is that there should be a lenient approach on the question of costs because an adverse award of costs will penalise the people who are caring for the child who is at the centre of this matter.

[9]       Under Rule 21 of the Court of Appeal (Civil Rules) 1997, generally costs follow the event.  There is sometimes a more cautious approach with regard to family proceedings.

[10]     In the present case, there can be no doubt that the applicants have throughout believed that they have acted in the best interests of the child by persisting with this matter. John Hansen J took that into account when he said it seemed to be “appropriate to temper any award of costs.”

[11]     Notwithstanding the clear warnings given to them about both the position in law and the genuineness of the second respondent, the applicants engaged in a further round of litigation.  It is clear from a reading of the file that there was never any prospect of success, but there was an unwavering determination to continue in spite of all that had happened in the past.

[12]     Balancing the competing issues, we are of the view that a modest costs order is appropriate. There will be costs in favour of the second respondent in the sum of $1,000 together with disbursements (if any).

Solicitors:
Williams and Co, Christchurch