Jansen v Jansen
[2022] NZHC 3222
•2 December 2022
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] Ms Wademan has provided a memorandum showing that her costs were $4,584 (excluding GST).
Discussion
[9] Where a lawyer is appointed for the purpose of representing the interests of a child or children, the Court is required to make an order pursuant to s 135A of the Care of Children Act 2004 (the Act).2 An order pursuant to s 135A requires the parties to reimburse the Crown two-thirds of the amount paid to the lawyer representing the child.3 Each party against whom an order is made must pay an equal share4, unless that would be inappropriate.5
[10] However, the Court may decline to make an order against a party if satisfied that the order would cause serious hardship to the party or to a dependent child of the party.6 Serious hardship is defined by the Act in the following terms:
serious hardship, in relation to a party or a dependent child of a party,—
(a)includes significant financial difficulties that arise because of—
(i)the party’s inability to meet minimum living expenses according to normal community standards; or
(ii)the cost of medical treatment for an illness or injury of the party or a dependent child of the party; or
(iii)a serious illness suffered by the party or by a dependent child of the party; or
the cost of education for a dependent child of the party:
(b)does not include significant financial difficulties that arise because—
(i)the social activities and entertainment of the party or those of a dependent child of the party may be limited; or
2 Care of Children Act 2004, s 131(4)
3Section 135A(1); and Family Courts (Prescribed Proportion of Professionals' Costs) Regulations 2014, cl 4.
4 Section 135A(3).
5 Section 135A(4).
6 Section 135A(2).
(ii)the party is unable to afford goods or services that are expensive or of a high quality or standard according to normal community standards.
[11] The issue in this matter is therefore whether either Mr or Mrs Jansen have established that serious hardship would result if they were each required to pay a third of Ms Wademan’s total costs. If required to make a contribution, they would each have to pay $1,528. As in relation to all matters heard pursuant to the Act, the welfare and best interest of the children must be the first and paramount consideration.
[12]As stated by Katz J:7
Parliament has provided no definition of “normal community standards” or what evidence the court can obtain to assess what these standards are.8 Median or average household income has been used as an indicator.9 Judge Coyle in Hodson v Ewart thought that normal community standards must take into account housing costs (mortgage or rent payments), food, clothing, power, vehicle expenses and the cost of other basic necessities of life.10 Educational costs for dependent children can also be seen as a necessity.
[13] I do not have any information from the parties as to their respective income or outgoings, apart from Mrs Jansen’s indication that she is currently a beneficiary, and that Mr Jansen is already paying or has paid significant child support. There is no indication as to the parties’ assets or debts.
[14] I acknowledge that the fact that a person’s main source of income is a benefit is an indicator of serious hardship.11 Mrs Jansen has sought family support in order to be represented on appeal, having received legal aid in the Family Court.
[15] Mr Jansen has remained unrepresented throughout the proceedings because of the cost of obtaining representation, although I am unaware as to whether he would have qualified for legal aid. He currently has day to day care of Steve and Bruce.
7 M v B [2022] NZHC 2605 at [26].
8Hodson v Ewart [2014] NZFC 9342 at [25]. See also Family Law – Child Law (online loose-leaf ed, Thomson Reuters) at [CC135A.04].
9 See for example Moore v Rayne [2014] NZFC 8876; and Mene v Dyson [2014] NZFC 8613.
10 Hodson v Ewart [2014] NZFC 9342 at [26].
11 Penfold v Clarke [2015] NZFC 1318.
[16] Against that is the factor that a contribution of $1,528 each is a relatively small order for costs in comparison to other High Court appeals, and also that he has acknowledged a large disparity in his income relative to Mrs Jansen.
[17] On balance, I am satisfied 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.
Result
[18] I decline to order any of the parties to reimburse the Crown for the costs of lawyer for the child, on the basis that doing so would cause serious hardship to each of them and/or their dependent children.
Churchman J
Solicitors:
Morrison Kent, Wellington for Appellant
J L Wademan, Wellington, Lawyer for Children Copy to: The Respondent
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