Grey v Grey

[2025] NZHC 555

PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND

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.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2024-442-000037

[2025] NZHC 555

UNDER

the Family Violence Act 2018

IN THE MATTER OF

an appeal against the making of a temporary protection order against an associated respondent

BETWEEN

SARAH GREY

Appellant

AND

RUBY GREY

First Respondent

GEORGE GREY

Second Respondent

Hearing:

(On the papers)

Counsel:

M J Vesty for Applicant

E V Kittelty and Y E Clarisse for First Respondent Second Respondent abides the decision of the Court

Judgment:

18 March 2025

JUDGMENT OF LA HOOD J

(Costs)

[1]        The appellant seeks costs against the first respondent. They are opposed on the basis that the first respondent is legally aided and/or costs are inappropriate in the family violence context of this case.

GREY v GREY [2025] NZHC 555 [18 March 2025]

[2]I am not minded to award costs for two reasons.

[3]        First, the first respondent is legally aided and there are no exceptional circumstances to justify an award under s 45 of the Legal Services Act 2011. Although there were attempts to negotiate a settlement by both parties, I consider Mrs Grey did not act unreasonably by continuing to defend the appeal. I found there was no error in the Family Court’s conclusion that the evidence established an incident of family violence (for the purpose of the interim application), and the appeal was only allowed by a “narrow margin” based on the objective reasonableness of the first respondent’s fear of future family violence. The first respondent had an arguable case and was entitled to let the Court determine it,1 especially in the context of her subjectively held fears of future family violence.

[4]        Second, even if she were not legally aided, I consider the decision of Clark v Moore is not applicable here.2 There, the Court held that an appellant who embarks on appeal against a Family Court decision to decline a protection order should face costs on the usual principles. That reasoning does not apply to a protected person who has not embarked on appeal, but rather had a reasonable basis for defending an appeal against the grant of a protection order. In my view, there is little difference in principle between an unsuccessful first instance applicant for a protection order and a successful first instance applicant who unsuccessfully but reasonably defends a protection order on appeal. Both should not be deterred from seeking the court’s protection through adverse costs awards.3

[5]        Arguably, a protected person defending an appeal has an even stronger interest in not being deterred from seeking the Court’s protection, as there has been a finding by a Family Court Judge that they are in need of protection. As the Court of Appeal said in Clark, the position is different if an appeal is embarked on following a fully reasoned decision of the Family Court that a protection order is not necessary.4

1      Lepionka & Company Investments Ltd v Gibson Sheat [2023] NZHC 2745 at [35].

2      Clark v Moore [2024] NZCA 264 at [87].

3      Pyke v Sherriff [2017] NZHC 1990, [2017] NZFLR 719 at [27]; endorsed in Clark v Moore, above n 2, at [84].

4      Clark v Moore, above n 2, at [87]–[89].

[6]I therefore decline the application for costs.

La Hood J

Solicitors:

Duncan Cotterill, Nelson for First Respondent