Hanover, re - [2015] NZHC 1945

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. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2007-404-7415 [2015] NZHC 1945

UNDER The Care of Children Act 2004

IN THE MATTER OF

Applications in relation to the children

Gillian and Tom Hanover

Hearing:
2-6, 9-13, and 18 March and 13 April 2015.

Further submissions received on 8 May 2015

Appearances:

S Heney for Mr and Mrs Saunders
G Webster for Ms Evans
G A Cole for Ms Alder
P E Main for Mr Wilton
L J Kearns for the children
G M Cameron, counsel to assist
A J Pollett for CEO of Child Youth and Family Service
Mr Hanover in person

Judgment:

17 August 2015

COSTS JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
11.30 am on the 17th day of August 2015

Counsel/Solicitors:
G A Cole, Barrister, Auckland
P E Main, Barrister, Auckland
G Webster, The Law Lounge, Takapuna
A J Pollett, Meredith Connell, Auckland
L J Kearns, Barrister, Auckland
G M Cameron, Barrister, Auckland
S Heney, Fletcher Vautier Moore, Nelson

Copy to Mr Hanover

Re HANOVER (COSTS) [2015] NZHC 1945 [17 August 2015]

Table of contents

Contributions to the fees and expenses of counsel for the children and
Dr Blackwell under the COCA s 135A ..................................................................[4] Ms Alder ...............................................................................................................[47] Ms Evans ..............................................................................................................[53] Mr Hanover ..........................................................................................................[56] The Saunders ........................................................................................................[63] Mr Wilton .............................................................................................................[65]
Applications for costs against Ms Alder and Mr Hanover by the Saunders and
MSD .....................................................................................................................[68] MSD’s own costs ..................................................................................................[72] Ms Alder ...............................................................................................................[78] Mr Hanover ..........................................................................................................[91] Result....................................................................................................................[94]

[1] This costs judgment follows the decision issued last week in these proceedings and is to be read in conjunction with it.1 For that reason I do not propose to set out any of the very complex background again here. The pseudonyms used in this judgment are the same as those set out at [5] of the earlier decision. And, as in that decision, I deal with the issues here on the basis of the circumstances as they were known to be at the conclusion of the hearings before me and not in light
of subsequent events.

[2] Presently for determination are the following costs’ issues, namely:

(a) what orders the Court should make under s 135A of the Care of Children Act 2004 (the COCA) in relation to the contributions required of the parties to the costs of counsel for the children, Ms Kearns, and of the psychologist, Dr Blackwell. Particular issues in that regard are whether:

(i)orders can or should be made against Ms Alder or Ms Evans, because they are legally aided;

1 Re Hanover [2015] NZHC 1855.

(ii)the Saunders should be partly or wholly excused from that requirement;

(iii)an order can or should be made against Mr Hanover, because he is an undischarged bankrupt;

(b) applications for party and party costs against…

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.

Continue reading Hanover, re

Details

AGLC: Hanover, re [2015] NZHC 1945
Case: [2015] NZHC 1945
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case involved the children Gillian and Tom Hanover. The proceedings concerned various applications in relation to the children, including disputes about their custody and welfare. The Court had to determine several cost-related issues following the decision on the substantive matters. These issues included the contributions required from the parties to the costs of counsel for the children and a psychologist, as well as applications for party and party costs against certain parties.

The Court considered whether orders could be made against parties who were legally aided or were bankrupt. It held that the statutory requirement to contribute to the costs of counsel for the children under the Care of Children Act 2004 (COCA) took precedence over the Legal Services Act 2011's limitations on costs orders against legally aided persons, unless serious hardship existed. Regarding bankrupt parties, the Court found that bankruptcy did not preclude the imposition of a costs order, though it would consider whether such an order would cause serious hardship.

In applying these principles, the Court found that Ms. Alder and Ms. Evans, who were legally aided, should not be required to contribute due to the serious hardship it would cause to them or their dependent children. Mr. Hanover, who was bankrupt, was ordered to contribute unless serious hardship was shown, which the Court did not find. The Saunders, who were not legally aided, were ordered to make a nominal contribution.

Regarding party and party costs, the Court declined to order costs against Ms. Alder and Mr. Hanover by the Ministry of Social Development and the Saunders, considering the Ministry's unlawful initial placement of the children as a significant factor. However, Ms. Alder was ordered to pay a sum of $1,000 to the Saunders due to her misleading conduct, which the Court found warranted an award of costs despite her legal aid status. The Court also considered but declined to order costs against Mr. Hanover due to his minimal involvement in the proceedings.

Ultimately, the Court ordered specific contributions from the parties to the costs of counsel for the children and the psychologist, and it made various orders regarding party and party costs, taking into account the conduct of the parties and the potential for serious hardship.

Orders