Hammond v Hammond

[2013] NZHC 2895

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS

11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-001236 [2013] NZHC 2895

BETWEEN  G E HAMMOND Appellant

ANDA J HAMMOND Respondent

Counsel:                  Appellant in Person

J M Irving for the Respondent
P K Cobcroft Lawyer for the Children

Judgment:                4 November 2013

COSTS JUDGMENT OF GILBERT J

This judgment was delivered by me on 4 November 2013 at 12.00 pm Pursuant to Rule 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:………………

G E HAMMOND v A J HAMMOND [2013] NZHC 2895 [4 November 2013]

[1]      Mrs Hammond, who is legally aided, seeks an award of costs following the dismissal   of   Mr   Hammond’s   appeal   and   application   for   judicial   review.1

Mr Hammond, who has limited financial means and is in arrears for child support, opposes costs and submits that they should lie where they fall.

[2]      Having reviewed the submissions filed by the parties, I have come to the conclusion that costs should lie where they fall for the following reasons.

[3]      First, I am satisfied that Mr Hammond pursued this proceeding in what he genuinely considered was the best interests of his two daughters.  He has not had any contact with either of his daughters, other than a brief unscheduled meeting, since

2008.   This is largely because the daughters are “enmeshed” with Mrs Hammond who has alienated them from Mr Hammond.  Mr Hammond responsibly pursued the appeal in an attempt to make progress towards resolving this unsatisfactory situation.

[4]      Judge Adams, who gave the judgment appealed from, held that the children are alienated from Mr Hammond as a result of Mrs Hammond’s actions.  The Judge described the children as having “unwarranted antipathy” towards Mr Hammond. He found that Mrs Hammond was “an alienating parent instead of a protective one” and said that he could “find no balanced reality that can account for [the daughters’] opposition to their father”.   It is clear that the Judge would have directed contact between the children and Mr Hammond had he thought such an arrangement would

work:2

Had this matter come before me four years ago, I doubt that I would have

hesitated long before taking decisive action…

[5]      Second, Mr Hammond made a reasonable offer to settle the proceedings if Mrs Hammond would agree to the children being referred for counselling.   That offer was not accepted.

[6]      Third, although the appeal was dismissed, Mr Hammond was not entirely unsuccessful because he secured an undertaking to the Court from Mrs Hammond

that the younger daughter will attend a state school from the beginning of the 2014

1 Hammond v Hammond [2013] NZHC 2545.

2 GEH v AJH [2013] NZFC 889.

school year. Judge Adams had not been prepared to disturb the home schooling arrangement although he described it as “relatively unhealthy”.

[7]      Fourth, the Judge made a quite serious factual error in his judgment which reflected badly on Mr Hammond.  That has now been corrected.3   Mr Hammond also demonstrated other legitimate concerns about the process.

[8]      In  these  circumstances,  I  do  not  consider  that  Mr  Hammond  should  be required to pay costs.

Result

[9]      The respondent’s application for costs is dismissed.

M A Gilbert J

3 Hammond v Hammond above n 1 at [17].