GF v EF

[2019] NZHC 3140

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 judgments/

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CIV-2019-470-40

[2019] NZHC 3140

UNDER

Section 143 of the Care of Children Act 2004

BETWEEN

GF

Appellant

AND

EF

Respondent

Hearing:

29 October 2019

Counsel: Appearance:

LK Speed and K Dyer for respondent T Bartlett for the child

GF, appellant in person

Judgment

29 November 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 29 November 2019 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Holland Beckett, Tauranga

T Bartlett, Tauranga

To:  GF, Tauranga

GF v EF [2019] NZHC 3140 [29 November 2019]

Introduction

[1]    The appellant father and respondent mother were in a de facto relationship from 2010 until November 2012 when they married. There is one child of that marriage, born in 2014, who I will refer to as AF. She is now five. The appellant and respondent separated in early 2018.

[2]    On 19 March 2019, Judge Cook in the Family Court delivered a judgment in which she made a final protection order in favour of the respondent, and parenting orders which gave day-to-day care of AF to the respondent.1 She also ordered the respondent could relocate from Tauranga to Whakatane from January 2020.

[3]    The appellant sought, and was granted, leave to appeal the relocation orders made in the Family Court.2 This judgment determines that challenge to the relocation orders.

[4]    The appellant’s primary challenge to the relocation orders is that AF’s views on relocation were not sought, and accordingly were not considered by the Family Court. He also says circumstances have changed. He now lives in Katikati, which is further from Whakatane than Tauranga. Moreover, he says the acrimony between him and the respondent has decreased, and there is now less of a need to allow relocation to provide space between him and the respondent.

[5]    The respondent says AF was adequately consulted on her views, and in any event is too young to give meaningful views on relocation. She says the respondent moved to Katikati with full knowledge the relocation orders had been made and cannot now claim he is prejudiced by that move.

[6]    Lawyer for the child, Ms Bartlett, appeared in both the Family Court hearing and on appeal. Prior to the appeal hearing, and with the knowledge of both parents, she met with and spoke with AF about the proposed relocation. While AF expressed some concerns about how far it was, Ms Bartlett expressed concerns that these answers may have been “coached” by the appellant. She also submits that given AF’s age, it

1      F v F [2019] NZFC 1590.

2      GF v EF [2019] NZHC 1744.

is not realistic to expect her to fully understand and accordingly give views on the relocation which can be given any significant weight.

Family Court judgment

[7]    In the judgment in which she made the relocation orders, Judge Cook also determined an application for a protection order, and made parenting orders about AF’s care. Neither of these aspects of the judgment are the subject of this appeal. However, in short, the Judge found that the appellant’s behaviour both before and after separation amounted to emotional and psychological abuse. She therefore made a final protection order in favour of the respondent. She also made orders that AF would be in the primary care of the respondent, with contact opportunities for the appellant every Wednesday and second weekend.

[8]    The Judge was nonetheless complimentary about the progress made more recently by the appellant in rehabilitation programmes and counselling, as well as indications he had reduced his alcohol consumption. Accordingly, she was of the view there should be a progression from supervised to unsupervised contact with AF.3 Weekend contact was to remain supervised (by the appellant’s mother) until the appellant had completed counselling programmes.

[9]    Turning to the question of relocation, the Judge ruled in favour of the respondent relocating from Tauranga to Whakatane for the following reasons:

(a)Accommodation was cheaper and more accessible for the respondent in Whakatane.

(b)She noted “given the distance between Whakatane and Tauranga … the impact on contact arrangements is not substantial although it does mean that the applicant’s ability to be able to have contact with his daughter at school events, for example, is far more restricted.”

3      I note the Judge expressly found there was no risk to AF physically from her father, and there was evidence of a loving close relationship between the two.

(c)The increased distance between AF and her extended family was not significant – the breakdown in the relationship between the appellant and respondent meant it was unlikely AF would have contact with her paternal family outside of approved contact hours anyway.

(d)Although not a determinative factor, the Judge noted relocation might be best for the respondent’s emotional health – benefits she opined may have a “flow-on effect” for AF.

[10]   Due to concerns regarding the impact a move halfway through the school year would have on AF, the Judge ruled relocation should not occur until the beginning of the 2020 school year.

[11]   The Judge had two reports from Ms Bartlett before her. In the first report, dated 5 April 2018, Ms Bartlett advised that she did not obtain AF’s views due to her age. She nonetheless commented that she considered AF looked comfortable in her mother’s care. In the second report, dated 14 February 2019, Ms Bartlett advised she had met with AF who had spoken happily about both of her parents, but would like to see more of her father. Although the Judge did not specifically refer to AF’s views in the judgment, she did note there was no question AF loved her father and enjoyed spending time with him.4 The Judge also referred to other information contained in the report, including that both parents were concerned AF suffered from anxiety.

[12]   It appears that AF’s views on relocation specifically were not sought prior to the Family Court hearing.

Appellant’s submissions

[13]The appellant challenges the relocation on three grounds.

[14]   First, he says the Judge did not take into account AF’s views, as expressed to Ms Bartlett during her second attendance with AF, that she would like to spend more time with her father. He also submits that there was a failure to obtain AF’s views on

4      F v F, above n 1, at [59].

relocation in particular, which he says was in breach of s 6 of the Care of Children Act 2004 (the Act). He cites a case where a child aged four was deemed to be able to express her views verbally and says AF was clearly able to do so given the comments by Ms Bartlett and others that she was an extremely confident and chatty child.5

[15]   Second, the appellant advises that since the Family Court decision, he has relocated to Katikati. This is further from Whakatane than Tauranga which means visiting AF will be more difficult than envisaged by the Family Court Judge.

[16]   Finally, the appellant submits that too much weight was placed on the tension between him and the respondent. He says he has fully complied with the terms of the protection order against him, has been engaging with health professionals, and his mental wellbeing is much better than it was. There is now much less need to reduce conflict between him and the respondent, and that will be even more true come January 2020 (the proposed relocation date). He further says there will be space between him and the respondent in any event now he lives in Katikati.

Respondent’s submissions

[17]   Ms Dyer for the respondent submits that Ms Bartlett sufficiently discharged her obligation to meet with AF and facilitate the expression of any views she might have. Ms Dyer notes that the Act does not require AF to express views on every issue affecting her, only that she should be given “reasonable opportunities” to express views. She says given AF’s age (particularly at the first meeting), it was legitimate for Ms Bartlett to infer AF’s views from non-verbal cues, including that she appeared comfortable in her mother’s care. Ms Dyer further observes that AF’s view she would like to spend more time with her father has been accommodated; at the time she expressed that view, she was seeing him for 22 hours per fortnight, whereas under the current parenting orders, she is spending 57 hours per fortnight with him.

[18]   In any event, Ms Dyer submits that any view or wish expressed by AF on relocation would likely hold little weight in the overall consideration of whether relocation is in her welfare and best interests; such that any failure to obtain her view

5      C v S [2006] 3 NZLR 420 (HC).

is not material. She submits AF is too young to be able to meaningfully comment on relocation.

[19]   Turning to the impact of relocation  on  AF’s  contact  with  the  appellant, Ms Dyer submits that there is no difference in the amount of time AF will spend with the appellant whether she relocates or not. The only impact relocation will have is on the travel arrangements needed to facilitate that contact. Ms Dyer submits that the appellant has chosen of his own volition to move from Tauranga to Katikati knowing full well the Family Court had made orders allowing the respondent to move to Whakatane; having made this choice, he cannot now claim this prejudices him. She submits if he feels there has been a material change in circumstances, he should apply to have the orders varied, rather than raise this point on appeal. In any event, she notes the parenting orders (which are not under appeal) require the appellant’s mother to supervise his weekend contact with AF. This will mean the weekend contact has to happen in Tauranga, making the move to Katikati less material.

[20]   Finally, Ms Dyer says the Family Court Judge expressly recorded she did not view the need to reduce conflict as determinative to the relocation decision; as a result, the appeal cannot succeed on that ground. She further disputes the appellant’s contention that tension between the parties will be resolved as of January 2020, highlighting that there are ongoing proceedings before the Family Court relating to alleged breaches of the parenting orders and that the parties’ relationship property division remains unresolved.

[21]   Ms Dyer submits that should the appeal be allowed, this Court should substitute the decision of the Family Court with the decision it thinks is appropriate, rather than remitting it back to the Family Court for a rehearing. She says a rehearing would add further cost and delay, running counter to the need to make decisions within a time frame appropriate to the child’s sense of time.

Lawyer for the child’s submissions

[22]   As noted, Ms Bartlett again acts as lawyer for the child on appeal. She met with AF on a third occasion prior to the High Court hearing.

[23]   Ms Bartlett advised that prior to this meeting, both the appellant and the respondent had contacted her expressing concerns AF’s views on relocation were being influenced by adults. The appellant told Ms Bartlett AF was scared to see her. Ms Bartlett met AF at her school, with neither parent present.

[24]   AF described positive experiences at both of her parents’ homes. She commented on her princess bed and pets at her father’s house, and that a park and dairy were close by to her mother’s house. She also told Ms Bartlett she thought it would be “pretty cool” to live with the children of the respondent’s new partner should she move to Whakatane.

[25]   AF nonetheless made several remarks that she did not want to move to Whakatane. The following passages of the lawyer for the child’s submissions are illustrative:

16.        I asked [AF] if she knew how long it takes to get to Whakatane and her reply was “no”. I asked if it would take the whole day and she replied “no”. In response to my question in which I asked “does it take very long”, her reply was “I don’t know”.

17.        I asked [AF] if she had lived in Whakatane before. [AF’s] reply was “no” and she went on to say “if I lived there it will be my first time to have lived there”. I asked “would you like to live there”.  [AF] replied “it would be too long to get there”.

[…]

22.   [AF] then proceeded to tell me that her father knew I was coming to  see her and that she had asked her father every day when I would be coming. [AF] spoke about her Nana, asking if she remembered me coming to see her before, but she said she could. [AF] then said I was coming to see her “about Whakatane, just because and I don’t want to live there”. I asked if Dad told her to say that and she said “yeah”. I asked her if her “Mummy” told her I was coming to see her and she replied “no she didn’t know”.

[…]

25. I then asked [AF] why she didn’t want to go to Whakatane to live and she replied when she “went fishing to get pipis they got stuck in the water and she didn’t want to get stuck in the water as Mum would have to get out of the boat and there were waves and she doesn’t like getting waves in the boat”. I asked is there any other reason to not go to live in Whakatane and she replied “no”. I asked is that the only reason you don’t want to go to Whakatane and she replied “yes”.

Approach on appeal

[26]   An appeal to the High Court under the Act is governed by s 143 of the Act. Section 143(4) provides that “the High Court Rules 2016 and sections 125 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act”.

[27]   Pursuant to the High Court Rules, the appeal proceeds by way of rehearing.6 The leading decision in relation to the approach to be taken on an appeal of this kind is the Supreme Court’s decision in Austin, Nichols & Co Inc v Stichting Lodestar.7 Although the appeal court is to come to its own view on the merits, the onus is on the appellant to satisfy the appeal court that it should differ from the decision under appeal. It is only if the appeal court considers that the trial court is wrong that it is justified in interfering with it.

[28]   After hearing an appeal, the Court may make any decision it thinks should have been made, direct the decision-maker to rehear the proceedings, or make any order the court thinks just.8

[29]   The Court of Appeal has described the approach on appeal from the Family Court in this way:9

An appeal to the High Court from the Family Court is an appeal by way of rehearing. Whilst the High Court will naturally give weight to the views of the specialist Court and may in some cases think it best to remit the case for reconsideration, it is fully entitled to substitute its views on questions of fact, including the issue of what is in the best interests of the child or children concerned. There is no rule of law requiring the High Court to defer in these respects to the Family Court even in a finely balanced case.

[30]   On the specific question of relocation, the Supreme Court in K v B described the Family Court’s task in considering a relocation application is to make an assessment and decision based on an evaluation of the evidence, by determining and evaluating the facts, considering all of the relevant principles from s 5 of the Act and

6      High Court Rules 2016, r 20.18.

7      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [3]-[5].

8      High Court Rules 2016, r 20.19.

9      D v S [2003] NZFLR 81 at [18].

other factors, and then making a judgment as to what course of action will best reflect the welfare and best interests of the child.10 There is no presumption in favour of either relocation or the status quo, and no party bears an onus of proof.11 Ultimately, a relocation application “is necessarily a fact-specific inquiry.”12 On an appeal, and given the appeal proceeds by way of rehearing, an assessment on the same basis will need to be carried out as to whether the relocation orders ought to have been made.13

Evaluation

Was there a failure to provide AF with a reasonable opportunity to express her views?

[31]   I first consider whether there was a failure to give AF a reasonable opportunity to express views on matters affecting her; in particular, the proposed relocation to Whakatane.

[32]   In my view there was. The first time Ms Bartlett met with AF, she had just turned four, and was not receptive to engaging with Ms Bartlett.14 But by the time  Ms Bartlett met with AF for the second time, AF was receptive to engaging with her, and conversed with Ms Bartlett about her views on her relationships and contact with her parents, and expressed the view that she wanted to “see more of Dad”. But there is no suggestion that she was asked specifically about the possibility of moving to Whakatane, which was by then a proposal that had been raised by her mother, the respondent.15

[33]   Randerson J considered a similar issue, with a similarly aged child, in C v S.16 After surveying the relevant aspects of the legislation and its background, his Honour noted that the obligation in s 6 is to provide a “reasonable” opportunity to a child to express their views. The concept of a “reasonable” opportunity will be influenced by factors such as the age and other characteristics of the child.17 The process for

10     K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [35].

11     At [24], [29].

12 At [23].

13 At [32].

14     At that time, the respondent had not made her application for relocation in any event.

15     The relocation application was filed on 18 May 2018, and this second meeting with AF took place on 12 February 2019.

16     C v S, above n 5.

17     At [31](c).

providing such an opportunity must similarly be tailored to the individual child.18 In C v S, Randerson J held that the child, aged a little over four years, should have been asked for her views on the matters in issue in that case, by either the lawyer for the child or the Judge.

[34]   I consider this should have occurred in this case also. While at the time of the Family Court hearing, AF was (just) five years old, there is no indication she was incapable of expressing her views, and as noted, when subsequently asked about the potential move to Whakatane (in September  this  year), was able  to engage with  Ms Bartlett on that issue. In my view, while a reasonable opportunity to express her views on the relocation ought to have been afforded, a separate question is what weight a Judge puts on any view which might be given, given AF’s age. Again, this will need to take into account the child’s age and characteristics, as well as the content of the views expressed.

[35]   Given Ms Bartlett did speak with AF prior to the appeal hearing, I am satisfied that AF has now been provided with a reasonable opportunity to express her views on the relocation. There was no objection to those views being communicated to this Court via Ms Bartlett’s submission to the Court. I note a similar approach was taken in Carpenter v Armstrong.19 In that case, there had also been a failure to provide the children in question with a reasonable opportunity to express their views on a relocation (in that case, from New Zealand to England). But prior to the appeal hearing, that opportunity had been provided and the views were communicated to the Court. Heath J noted that “the steps that were taken after the appeal was lodged cured the problem that arose in the Family Court”.20 The Judge also referred to William Young P’s judgment for the Court of Appeal in HC v PS, in which his Honour noted that once a court on appeal finds a breach of s 6, that does not automatically render the Family Court judgment void or ultra vires, such that the matter must always be remitted to the Family Court for a rehearing.21 Rather, the appeal court must then

18 At [33].

19     Carpenter v Armstrong HC Tauranga CIV-2009-470-511, 31 July 2009.

20 At [84].

21     HC v PS CA115/06, 18 October 2006.

consider whether the breach had a material impact on the outcome of the proceedings.22

[36]   The position is a little different in this case, given, as noted, AF’s views are now before the Court. Given this, and that the appeal proceeds by way of a rehearing, the appropriate course is for me to determine the appeal, but with regard to the views now expressed by AF (which must be considered on a de novo basis).

[37]   I have carefully considered AF’s views. I am of the view that even if they had been available to the Family Court, they would not have had an impact on the outcome of the application for relocation.

[38]   First, I take into account AF’s age. The fact that AF’s specific views on relocation were not before the Family Court is perhaps indicative that lawyer for the child, and the Family Court Judge, did not consider views of a child that young on a relocation issue could carry any weight. Both lawyer for the child and the Judge are very experienced in this area of the law. It was not necessarily an unreasonable position to take. As it happens, given AF’s age, I place little weight on the views she has expressed (see [39]-[40] below). I should be clear, however, that this conclusion is different to whether she was given a reasonable opportunity to express her views. Given her age, she clearly has real difficulties with the concepts of time and distance. But, by way of example only, her age would not necessarily have precluded her from expressing a real fear or concern about going to Whakatane because of, for argument’s sake, a very difficult relationship with any of those persons with whom it is proposed she will live once there. And any such views might be given considerably more weight by the Court, or at least have led to further inquiries being made. I therefore do not consider it appropriate to conclude that simply given AF’s age, she could not give any views on relocation which could potentially be given some weight.23

22 At [6].

23 This does not mean, however, that a child’s age can never provide a proper foundation for the conclusion that it would be pointless to seek views on a particular issue. Clearly it could be if the child was very young, or even if a little older, the particular issue was something a child of that age could clearly not comprehend.

[39]   But in this case, once AF’s views had been ascertained, her concern at moving to Whakatane (other than waves coming in the boat when fishing for pipis) was that it would take “too long” to get there. The questioning of AF shows, however, that unsurprisingly, she has no real concept of time and distance between Tauranga, or Katikati, and Whakatane. Given this, her view that it would take “too long” cannot be given any real weight. I also note that she said “I don’t want to live there” (in Whakatane), but agreed that “daddy” had told her to say that. The question asked of her, however, was a somewhat leading question, and she may have simply wanted to oblige by saying yes. Her answer to that particular question would carry more weight if the inquiry had been framed in an open way. But when asked why she didn’t want to live in Whakatane, she was clear it was only because of her concern at waves coming in the boat when fishing for pipis. And the fact that she did say it would take too long to get to Whakatane, yet at the same time, had no concept of time and distance between the towns, is suggestive of some form of “coaching”.

[40]   Accordingly, given AF’s age, her inability to fully appreciate concepts of time and distance, and the concern at coaching, I consider the Family Court Judge would have placed limited or no weight on AF’s views. I take the same approach.24 While I consider there was a breach of s 6 to give AF a reasonable opportunity to express her views on relocation, that breach had been “cured” by the time of the appeal hearing. And AF’s views on relocation do not have any material impact on the outcome of the relocation decision.

[41]   This deals with the primary ground of the appellant’s appeal. I now turn to the remaining issues raised.

Did the Judge fail to give due consideration to the effect of the relocation on the appellant?

[42]   The appellant says the Judge should have considered the impact the relocation will have on him, particularly given the close relationship between him and AF.

24     See a similar outcome in Carpenter v Armstrong, above n 19, at [84].

[43]   I am satisfied the Judge did not err in this regard, and gave proper and full consideration to the impact of the relocation on contact between the appellant and AF. She noted the close relationship between father and daughter, and AF’s view that she wanted to spend more time with her father. But as counsel for the respondent notes, the effect of the Family Court’s final parenting orders is a significant increase in the contact time between the appellant and AF.

[44]   Further, it became clear through argument before me that the appellant is fully committed to being a regular and consistent presence in his daughter’s life. He is to be commended for that. It is clear he and his daughter have a close relationship and enjoy being together. But the relocation will not, in my view, have any, or any real, adverse impact on that relationship. Given the continuing friction between the appellant and the respondent, it is unlikely contact between the appellant and AF will occur outside the scope of the Family Court’s existing orders. Before me, the appellant, in my view, somewhat exaggerated the impact of the relocation. Whakatane is only approximately one hour from Tauranga. Since the Family Court judgment, the appellant has chosen to move to Katikati. But that only adds approximately 30 minutes to the travel time.25 The appellant sought to emphasise the cost of having staff on site at the farm at which he works to cover for him given the earlier time he will need to leave to travel to Whakatane. But no evidence of such costs was sought to be adduced on appeal, and in my view, the appellant was also exaggerating the time by which he would need to leave the farm on a Friday to collect AF. Further, the orders envisage the respondent travelling to Tauranga to collect AF at the conclusion of weekend visits with the appellant, and the parties meeting at a “half way point” for Wednesday contact, which also cuts down the travel time.

[45]   Ultimately, the appellant confirmed that he would do all he needed to do to ensure his ongoing contact with AF. I have no doubt that will be the case. As noted, the appellant struck me as a caring and engaged father. I do not consider the Judge erred in concluding that the relatively short increase in travel time consequent on the relocation was contrary to the best interests of AF. The parenting regime was considered by the Judge to be in AF’s best interests. The appellant does not challenge

25     These travel times were confirmed by the appellant at the hearing.

those aspects of the Family Court decision. And the Family Court Judge, with whom I agree, concluded that the relocation would not have any substantial effect on that contact regime. This is particularly so given the appellant has made it clear that he will continue to avail himself of full contact with AF as permitted by the parenting orders.

Did the Judge give too much weight to the need to reduce conflict between the parents?

[46]   The appellant also argues that the Judge placed too much weight on the need to reduce conflict between the parties and the impact the relocation would have on the respondent’s wellbeing, and a flow on effect to AF.

[47]   This point can be dealt with briefly. I do not consider the Judge erred in this regard. Indeed, it appears matters such as this played a very minor part only in her judgment. The Judge expressly recorded that these considerations were not determinative in her allowing the relocation. Rather, she concluded that given the minimal impact the relocation would have on the parenting regime (which is not challenged on appeal), the relocation should be permitted (though as of 2020, to avoid disruption to AF’s schooling).

The overall position on a rehearing

[48]    I have reviewed the relevant materials before the Family Court, the notes of evidence, the Judge’s decision and the parties’ submissions and related legal authorities. I have considered AF’s updated views. I note that I am not required to give “deference” to the lower court, but equally I am not required to proceed as if the Family Court decision did not exist.26 Having conducted a review of the materials referred to, I have reached the same conclusion as the Judge, and thus concluded she did not err on the question of relocation.

[49]   The Family Court decision was a careful decision, which, other than the issue arising in relation to s 6, expressly took into account the relevant legislative

26     K v B, above n 10, at [31].

provisions.27 The Judge also expressly referred to and took into account those factors discussed in S v O as to relocation.28

[50]   As noted, the appellant does not challenge the final parenting orders made in the Family Court. They are accordingly taken to be in AF’s best interests and consistent with the principles set out in s 5 of the Act. The relocation does not have any impact, or any impact of any real substance, on the appellant’s contact with AF. Given this, it cannot be said that the relocation itself does not appropriately reflect AF’s best interests and the principles set out in s 5. Specifically:

(a)The relocation order does not undermine or alter the parenting orders’ focus on AF’s safety;29

(b)The relocation order is consistent with AF’s care and upbringing being primarily the responsibility of her parents;30

(c)The relocation order does not undermine or prevent AF’s care and upbringing being facilitated by ongoing consultation and cooperation between her parents;31

(d)The relocation order permits continuity in AF’s care, development and upbringing, as she will continue to live primarily with her mother, but with increased and regular contact with her father;32

(e)The relocation order, in the context of the broader parenting orders, accommodates and promotes AF’s relationship with both her parents;33

(f)The relocation order does not undermine or adversely affect AF’s continued relationship with broader family members, particularly given

27     Care of Children Act 2004, relevantly for the present appeal, ss 4 and 5.

28     S v O [2006] NZFLR 259.

29     Care of Children Act 2004, s 5(a).

30     Section 5(b).

31     Section 5(c).

32     Section 5(d).

33     Section 5(e).

such broader contact is likely to continue to need to be through the parenting orders;34 and

(g)The relocation order does not undermine or have any particular impact on the preservation or strengthening of AF’s identity.35

Result

[51]For the reasons set out in this judgment, the appeal is dismissed.

Costs

[52]Were the appeal to be dismissed, the respondent sought costs.

[53]   I do not propose to make any order as to costs between the parties. Given I have found that there was a breach of s 6 of the Act, and that this was the primary basis for the appellant’s appeal, it was not unreasonable for him to bring the appeal (including seeking leave to do so), even though the appeal was ultimately unsuccessful. Nor did the way he went about conducting the appeal, despite representing himself, unreasonably or unnecessarily add to or increase the costs which would otherwise have been incurred by the respondent.

[54]   Ms Bartlett’s costs, as lawyer for the child, are to be paid out of funds appropriated for that purpose by Parliament in the ordinary way.

Fitzgerald J

34     Section 5(e).

35     Section 5(f).