Green v Brown

[2025] NZHC 2394

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TO COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980 THE NAMES IN THIS JUDGMENT HAVE BEEN ANONYMISED

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000242

[2025] NZHC 2394

BETWEEN

[GREEN]

Appellant

AND

[BROWN]

Respondent

Hearing:

On the papers

Appearances:

B Hayes for the Appellant

B Westenra for the Respondent

Judgment:

21 August 2025

JUDGMENT OF WALKER J

[Costs]

This judgment was delivered by me on 21 August 2025 at 4 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Counsel/Solicitors:

B Hayes, Barrister, Hamilton
Wills Westenra Limited, Whangārei

[GREEN] v [BROWN] [2025] NZHC 2394 [21 August 2025]

[1]                 This cost judgment follows delivery of this Court’s judgment on 9 July 2025, dismissing the appeal of a Parenting Order decision made by the Family Court under s 48 of the Care of Children Act (COCA).1 Both the appellant and respondent (not Ms Brown but a family member of Ms Brown) in that matter received Legal Aid. No costs are sought in respect to that appeal.2

[2]                 Costs are sought, however, in respect of the related appeal against  the  Family Court judgment of 27 July 2023, declining Ms Green’s application for a Protection Order against Ms Brown.3 That appeal was abandoned and Ms Brown now seeks costs against Ms Green, in respect of the steps taken in that appeal.

Background

[3]                 Ms Green filed notice of appeal against the Protection Order decision of the Family Court dated 27 July 2023. She applied to adduce further evidence on appeal and subsequently amended her notice of appeal. Ms Brown was granted leave to file evidence. On 4 November 2024, Ms Green abandoned that appeal. Costs were reserved.

[4]                 I subsequently issued a minute determining that costs would be decided once the Parenting Order appeal had been dealt with.4 For reasons explained in that judgment, that appeal was delayed.

[5]                 Ms Green is in receipt of Legal Aid although the commencement date for the grant of legal aid is not clear. Ms Brown is not legally aided. She has incurred legal fees of $5,500 inclusive of GST to defend the proceedings. She contends that the financial burden on her was unnecessary because Ms Green’s claims lacked any foundation. She argues that it is appropriate that an order for costs be made against Ms Green which also specifies the amount that she would have been ordered to pay if s 45 of the Legal Services Act 2011 had not affected her liability. Ms Brown maintains

1      [Green] v [Blue] [2025] NZHC 1872.

2      For clarification purposes, the respondent in the Parenting Order appeal was a different person than the respondent in the Protection Order appeal which is the subject of present costs application.

3      The fictionalised names in this judgment are those chosen by Johnstone J in an interlocutory judgment dated 20 December 2023.

4      [Green] v [Blue] HC Hamilton CIV-2023-419-242, 29 April 2025.

that the appropriate daily recovery rate for the appeal is category 1, pursuant to r 14.3 of the High Court Rules 2016. She has provided a schedule of costs in accordance with the time bands in sch 3 of the High Court Rules totalling $4,134.

[6]                 Ms Green contends she was legally aided as from November 2023. She provides a statement of income and expenditure which indicates that her expenses exceed her income such that she is unable to pay costs.5 She argues that an adverse award of costs would not be in the interests of the child (her son) who is the subject of the proceedings. Moreover, she argues there are no exceptional circumstances that justify an award of costs6 because the appeal had a legal foundation and was withdrawn only after Ms Brown supported her following a hospital admission.

[7]                 Regarding the costs schedule, Ms Green argues that the consolidation of the Protection Order appeal with the Parenting Order appeal meant that the attendances were in respect of both appeals. It follows that any award of costs must take that into account and reduce the claim accordingly.

Discussion

[8]                 As Ms Green was in receipt of Legal Aid from November 2023, s 45 of the Legal Services Act 2011 is engaged. It reads:

45       Liability of aided person for costs

(1)If an aided person receives legal aid for civil proceedings, that person’s liability under an order for costs made against him or her with respect to the proceedings must not exceed an amount (if any) that is reasonable for the aided person to pay having regard to all the circumstances, including the means of all the parties and their conduct in connection with the dispute.

(2)No order for costs may be made against an aided person in a civil proceeding unless the court is satisfied that there are exceptional circumstances.

(3)In determining whether there are exceptional circumstances under subsection (2), the court may take account of, but is not limited to, the following conduct by the aided person:

5      This is not in affidavit form but contains a form of statutory declaration certifying the accuracy of the record.

6      Legal Services Act 2011, s 45(2).

(a)any conduct that causes the other party to incur unnecessary cost:

(b)any failure to comply with the procedural rules and orders of the court:

(c)any misleading or deceitful conduct:

(d)any unreasonable pursuit of 1 or more issues on which the aided person fails:

(e)any unreasonable refusal to negotiate a settlement or participate in alternative dispute resolution:

(f)any other conduct that abuses the processes of the court.

(4)Any order for costs made against the aided person must specify the amount that the person would have been ordered to pay if this section had not affected that person’s liability.

(5)If, because of this section, no order for costs is made against the aided person, an order may be made specifying what order for costs would have been made against that person with respect to the proceedings if this section had not affected that person’s liability.

1. If an order for costs is made against a next friend or guardian ad litem

   of an aided person who is a minor or is mentally disordered, then—

   (a)that next friend or guardian ad litem has the benefit of this section; and

   (b)the means of the next friend or guardian ad litem are taken as being the means of the aided person.

   [9]                 The exceptional circumstances listed in s 45 are non-exhaustive, but the examples are directed to improper or unreasonable conduct on the part of the legally aided person.

Costs in a Family Violence appeal context

[10]             The Court of Appeal recently examined the question of costs awards in appeal proceedings under the Family Violence Act 2018 (FVA).7 It noted the different statutory framework applying in respect of the FVA and COCA. It is not uncommon for both frameworks to be engaged at the same time. The Court distinguished between costs awards made in the Family Court, which are discouraged in respect of applicants

7      Clark v Moore [2024] NZCA 264.

under the FVA who bring applications in good faith and appeals of Family Court decisions on an application for a protection order.8

[11]The rationale for that distinction was explained in Re S (A Child):9

…the fact that it is an appeal rather than a trial may be relevant to whether or not a party has behaved reasonably in relation to the litigation…. At first instance, “nobody knows what the judge is going to find” …, whereas on appeal the factual findings are known. Not only that, but the judge’s reasons also are known. Both parties have an opportunity to “take stock” … and consider whether they should proceed to advance or resist an appeal and to negotiate on the basis of what they now know, so it may well be that conduct which was reasonable at the first instance is no longer reasonable on appeal.

[12]               The Court of Appeal said that in such circumstances a party must reflect on whether an appeal is warranted and should embark on an appeal in the knowledge that the High Court Rules costs principles will normally apply, including the likelihood that costs will follow the event.10

[13]             The Court also said that a costs order on an unsuccessful appeal cannot be said to be contrary to the purpose of the FVA by deterring others from making applications.

The Family Court decision dismissing the application for protection order

[14]             The Judge recorded that Ms Green was seeking to have Ms Brown removed as supervisor in the Care of Children proceedings so that the child (Ms Brown’s grandson) would go instead to a formal supervised contact centre to see his father.11

[15]             After assessing the evidence in respect of each incident Ms Green relied on to support her application for protection order, the Judge concluded (with reference to the broad definition of psychological harm and the purposes of the legislation) that overall, and in totality, Ms Green did not need protection from Ms Brown.12

8      At [84]–[85].

9      Re S (A Child) [2015] UKSC 20; [2015] WLR 1631 at [29].

10     Clark v Moore, above n 7, at [88].

11     [Green] v [Brown] [2023] NZFC 7901 at [31].

12 At [88].

[16]             It is implicit in the judgment that, where there was a factual dispute between Ms Green and Ms Brown, the Judge preferred Ms Brown’s account of events. He noted a significant conflict between Ms Green’s affidavit evidence and concession under cross-examination in respect of an assertion that Ms Brown had intentionally locked her in the car.13 He expressed concern about the timing of Ms Green’s without notice application for a protection order given that it was filed the day before the father’s supervised contact was due to restart following a period of it not happening.14 He also suggested that at least some of the incidents relied on by Ms Green could not possibly be a ground relevant to her request for a protection order against Ms Brown.15

[17]             Standing back and assessing the decision and the Judge’s various findings, I cannot accept that there was any reasonable foundation for the appeal as Ms Green argues.

[18]             I consider that exceptional circumstances are made out under s 45 of the Act, justifying an award of costs in respect of the discontinued appeal, subject to the matters discussed below.

Quantum and circumstances

[19]             Before settling on a costs award, all the circumstances must be taken into consideration. This includes the means of the parties. There is no information about Ms Brown’s financial position. Ms Green has provided a schedule of income and expenditure. It is apparent that she is surviving hand-to-mouth, with very little financial assistance from the child’s father. Any order for costs will be an additional burden on such parent as has the day-to-day care of a child.

[20]             But  for  those  circumstances  I  would  have  awarded  category  1A  costs  of $2,703.16 This considers the consolidation of the two different appeals to avoid duplication of costs. It includes the steps taken in opposition to Ms Green’s

13 At [46].

14 At [84].

15     At [65] and [66].

16     Legal Services Act 2011, s 45(5).

application for leave to file further evidence on appeal. In short, this would have been the costs order in favour of Ms Brown if s 45 had not affected Ms Green’s liability.

[21]             However, taking account of the best  interests  of  the  child  at  issue  and  Ms Green’s straitened circumstances, I make no order for costs against her.

............................................................

Walker J