Green v Regan - [2017] NZHC 1916

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980.

THIS JUDGMENT HAS BEEN ANONYMISED AND MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2016-488-000132 [2017] NZHC 1916

BETWEEN
[MS GREEN]

Appellant

AND

[MR REGAN] First Respondent

ATTORNEY-GENERAL Second Respondent

Hearing: 27 July 2017

Appearances:

S M Henderson and C J L Martin for Appellant
No appearance for the First Respondent
D Harris and M Majeed for the Second Respondent

Judgment:

11 August 2017

JUDGMENT OF KATZ J

This judgment was delivered by me on 11 August 2017 at 4:00pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Henderson Reeves Connell Rishworth Lawyers, Whangarei
Crown Law, Wellington

GREEN v REGAN [2017] NZHC 1916 [11 August 2017]

Introduction

[1] Ms Green and her former partner Mr Regan have been engaged in protracted proceedings in the Family Court.1 Following a nine-day hearing of parenting applications under the Care of Children Act 2004 (“Act”), Judge S M R Lindsay made a costs contribution order under s 135A.2 As a result, Ms Green and Mr Regan are each required to contribute one-third of certain costs incurred by the Crown in relation to the proceedings. Ms Green’s one-third share of the costs is $11,007.92. She appeals the costs contribution order.

[2] Mr Regan elected not to take part in the appeal. As the costs ordered are payable to the Crown, the Attorney-General was joined to the proceedings as second respondent in order to defend the costs contribution order on behalf of the Crown.

[3] Ms Green’s primary ground of appeal is that there has been a breach of natural justice. In particular, Ms Green submits that the making of the costs contribution order was wrong in law because the process followed by the Judge denied her the opportunity to be heard. I will consider the natural justice ground of appeal first, and will only address Ms Green’s two alternative grounds (which focus on the substantive merits of the decision under appeal) if the need arises.

The statutory framework

[4] Section 135A of the Act requires the parties to refund the Crown, in equal shares, a fixed proportion of the costs and expenses paid to the lawyer appointed to represent the child (“Lawyer for Child”) and to the specialist report writers. The required proportion is fixed by regulation at two-thirds in total, which means that each party must pay one-third of the costs.3 The court must make a costs contribution order under s 135A unless:

(a) such an order would cause “serious hardship” to the party or to a dependent child of the party;4 or

1 To protect the identity of the children who are the subject of the proceedings, pseudonyms have been used for the names of the parties.
2 [Names redacted] [2016] NZFC 7175 at [288].
3 Family Courts (Prescribed Proportion of Professionals’ Costs) Regulations…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Green v Regan and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] NZHC 1916
Decision Date: 11 August 2017

CaseChat Overview and Summary

In this case, Ms Green, the appellant, challenged a costs contribution order made against her in Family Court proceedings. The order required her to contribute one-third of certain costs incurred by the Crown in relation to the proceedings. Ms Green argued that the making of the costs contribution order was wrong in law because the process followed by the Judge denied her the opportunity to be heard, thereby breaching natural justice. Mr Regan, the first respondent, did not participate in the appeal, and the Attorney-General, as the second respondent, defended the costs contribution order on behalf of the Crown. The High Court was required to determine whether the Family Court's process in making the costs contribution order complied with the principles of natural justice.

The court held that the procedure followed in the Family Court was not sufficient to meet the requirements of natural justice. Although the Judge's Chambers' Minutes may have alerted Ms Green to the fact that a costs contribution order was under consideration, the court found that the opportunity for Ms Green to address whether a costs contribution order should be made against her was inadequate. Specifically, the court noted that the only input sought from counsel was regarding Ms Green's legal aid status, and no opportunity was provided for the filing of submissions on whether Ms Green should be exempted from making a costs contribution order on the "serious hardship" ground or otherwise. The court concluded that the appropriate remedy was to quash the costs contribution order and remit the matter to the Family Court to reconsider the issue, providing Ms Green with an opportunity to address the relevant issues before a final decision was made.

The appeal was allowed, the costs contribution order was quashed, and the matter was remitted to the Family Court to reconsider its decision on whether a costs contribution order should be made against Ms Green. The court also noted that if the costs of this appeal could not be agreed between counsel, leave was reserved to the appellant to file a memorandum on costs.

Orders