Jansen v Jansen - [2022] NZHC 3222

NOTE: PURSUANT TO 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. FOR FURTHER INFORMATION,

PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-413

[2022] NZHC 3222

UNDER the Care of Children Act 2004

BETWEEN

CHARLOTTE JANSEN

Appellant

AND

HENRY JANSEN

Respondent

On the papers:

Counsel:

M A Twentyman and G E Dowd for Appellant Respondent in person

J l Wademan, Lawyer for the Children

Judgment:

2 December 2022

JUDGMENT OF CHURCHMAN J [COSTS]

[1] On 27 October 2022, I dismissed an appeal by Mrs Jansen against a decision of the Family Court regarding shared care arrangements for her sons Steve (aged five) and Bruce (aged two), with their father.1

[2] The remaining issue between the parties is whether they should be required to make a contribution to the costs of Ms Wademan, who was appointed as lawyer for the children.

1 Jansen v Jansen [2022] NZHC 2799; and Jansen v Jansen [2022] NZFC 6937.

JANSEN v JANSEN (COSTS) [2022] NZHC 3222 [2 December 2022]

Positions of the parties

Mrs Jansen

[3] Mrs Jansen submits that she pursued the appeal with a genuine belief that she was acting in the children’s best interests. Mrs Jansen was legally aided in the Family Court because she is currently a beneficiary. However, on appeal, her father has paid for private representation.

[4] Mrs Jansen submits that any requirement to contribute to costs will impact on her ability to provide for Steve and Bruce. She says that this is not in their best interests. She says that this would cause serious hardship, and that therefore she should be exempt from a contribution to Ms Wademan’s costs.

Mr Jansen

[5] Mr Jansen has been self-represented throughout the proceedings. He says that he has done this “due to the prohibitive costs of legal representation”, rather than through any belief that he did not require legal assistance. He says that Mrs Jansen’s conduct throughout the proceedings have caused him considerable stress, and that it has been difficult for him to respond to her allegations. He says that he remained willing to use other forms of dispute resolution throughout the proceedings, and that it is Mrs Jansen’s pursuit of the appeal that has created costs.

[6]Mr Jansen submits that:

Due to the excessive levels of child support I have had to pay (because of the apparent disparity in our respective incomes, and very little of which has made it to the children), I have struggled to get ahead, and therefore it would cause me undue hardship to have to pay half of the costs for Counsel for Children, with a subsequent direct impact on the children while they are in my care.

[7] Mr Jansen requests that he is exempted from contributing to Ms Wademan’s costs.

Ms Wademan

[8]…

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 Jansen v Jansen

Details

AGLC: Jansen v Jansen [2022] NZHC 3222
Case: [2022] NZHC 3222
Decision Date: 2 December 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Wellington Registry, Charlotte Jansen sought to appeal the decision of the Family Court regarding shared care arrangements for her sons, Steve (aged five) and Bruce (aged two), with their father, Henry Jansen. The court dismissed the appeal, and the remaining issue was whether the parties should contribute to the costs of Ms Wademan, the lawyer for the children. Ms Jansen argued that any contribution would impact her ability to provide for the children, and requested exemption from contributing to Ms Wademan’s costs. Mr Jansen argued that he had been self-represented throughout the proceedings due to the prohibitive costs of legal representation, and that it was Mrs Jansen’s pursuit of the appeal that had created costs. The court found that to make an order for either party to contribute to reimburse the Crown for Ms Wademan’s costs would cause serious hardship to them and/or their dependent children. As such, the court declined to order any of the parties to reimburse the Crown for the costs of the lawyer for the child.

Orders