IA v RRN

Case [2017] NZHC 1997 21 August 2017

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PUBLICATION OF THE NAME(S) OR IDENTIFYING PARTICULAR(S) OF THE PARTY(IES) TO THIS PROCEEDING OR THE CHILD/CHILDREN WHO ARE THE SUBJECT OF THIS PROCEEDING IS PROHIBITED UNDER S 139 OF THE CARE OF CHILDREN ACT 2004, AND S 11B(3) OF THE FAMILY COURTS ACT 1980 EXCEPT AS PERMITTED BY S 11B(4) OF THE FAMILY COURTS ACT 1980. THESE PROVISIONS GENERALLY PROHIBIT THE PUBLICATION OF IDENTIFYING DETAILS EXCEPT IN CERTAIN CIRCUMSTANCES IN PROFESSIONAL AND TECHNICAL PUBLICATIONS OR BY LEAVE OF A JUDGE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003138 [2017] NZHC 1997

UNDER Care of Children act 2004

IN THE MATTER

of Application for Leave to Appeal Against a Judgment of the Family Court under section 143(2) of the Care of Children Act 2004

BETWEEN

IA Appellant

AND

RRN Respondent

Hearing: On the papers

Counsel:

S Sharma for the Appellant
G M Cameron for the Respondent
P Leʼauʼanae for the Child

Judgment:

21 August 2017

COSTS JUDGMENT OF MUIR J

This judgment was delivered by me on Monday 21 August 2017 at 3.00 pm
Pursuant to Rule 11.5 of the High court Rules.
Registrar/Deputy Registrar
Date:…………………………

IA v RRN [2017] NZHC 1997 [21 August 2017]

Background

[1] On 12 June 2017 I granted the appellant’s appeal on the papers after an earlier hearing on 3 May 2017 which I was requested to adjourn by consent.1 The background is set out in detail in my judgment and will not be repeated suffice to say that:

(a) The appeal arose out of a final order of the Family Court granted on a

without notice application to relocate the parties’ child to Australia.

(b)The Family Court did not in fact have jurisdiction under the Family Court Rules 2002 (the Rules) to grant such application on a final basis.

(c) The Notice of Appeal dated 16 May 2016 did not specifically address the jurisdiction issue, referring generally to the decision having been made without notice and as constituting a miscarriage of justice but not engaging the relevant provisions of the Rules.

(d)In submissions subsequently filed, however, the appellant identified the jurisdictional issue.2

(e) Counsel for the respondent conceded that issue and responsibly also conceded that the likely result would be to grant the appeal. Such was done in advance of the hearing on 3 May 2017.3

(f) In my decision allowing the appeal I reserved costs in the event these were sought by the appellant.

[2] The appellant now seeks costs on both his application for leave to appeal
(similarly reserved) and appeal. There is no dispute that, applying relevant time allocations and daily recovery rates on the 2B basis previously identified as

1      IA v RRN [2017] NZHC 1268.
2      Submissions of appellant dated 27 July 2016.
3      Submissions of respondent dated 30 April 2017.

governing the appeal, the appropriate award in the appellant’s favour would be

$16,167.50.

Submissions

[3] The appellant submits that the normal principles as to costs under the High Court Rules should apply, namely that costs should…

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 IA v RRN

Details

AGLC: IA v RRN [2017] NZHC 1997
Case: [2017] NZHC 1997
Decision Date: 21 August 2017

CaseChat Overview and Summary

The case of IA v RRN involved an appeal against a Family Court decision to relocate a child to Australia. The appellant argued that the Family Court lacked jurisdiction to grant the relocation order, a point which the respondent conceded. The High Court allowed the appeal, and the appellant sought costs for both the application for leave to appeal and the appeal itself. The respondent opposed the costs application, arguing that an award against her would not be in the best interests of the child due to her financial situation. The court examined the relevant provisions of the Care of Children Act 2004 and determined that the welfare of the child should be the primary consideration in awarding costs. The court found that awarding the full amount of costs sought would seriously impact the child's welfare and ordered the respondent to pay 35% of the appellant's costs, to be executed six months later to allow for reconsideration of enforcement. The court also reserved the issue of the respondent's liability for the costs of the lawyer for the child pending further submissions.

The court in this case considered the conflicting authorities on the approach to costs in appeals from Family Court decisions under the Care of Children Act 2004. The court concluded that the welfare and best interests of the child should be the starting point and guiding consideration in awarding costs on appeal. While the normal rules suggest costs follow the event, the court may exercise its discretion to award reduced costs or decline to award costs if doing so would be contrary to the welfare and best interests of the child. The court found that awarding the full costs sought in this case would impose an undue financial burden on the respondent and negatively impact the child's welfare. Therefore, the court ordered the respondent to contribute 35% of the appellant's costs, to be executed six months later to allow for reconsideration of enforcement. The court also reserved the issue of the respondent's liability for the costs of the lawyer for the child pending further submissions from the parties.

Orders