Larsen v Family Court

[2023] NZHC 761

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.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2023-485-10

[2023] NZHC 761

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of the New Zealand Bill of Rights Act 1990 and the Care of Children Act 2004

BETWEEN

LARSEN

Applicant

AND

FAMILY COURT

First Respondent

CONEY

Second Respondent

Hearing:

On the papers

Appearances:

Ms Larsen self-represented Applicant

M L Greenhough for the Second Respondent

Judgment:

5 April 2023

JUDGMENT OF COOKE J

(Costs)

[1]    By judgment dated 3 March 2023 I dismissed Ms Larsen’s claim for judicial review.1 The Family Court had ordered that Ms Larsen’s young child receive childhood vaccinations as her father had wished, and notwithstanding Ms Larsen’s concerns. Ms Larsen brought these judicial review proceedings challenging the Family Court decision, including on the basis that it involved procedural unfairness.

1      Larsen v Family Court [2023] NZHC 395.

LARSEN v FAMILY COURT [2023] NZHC 761 [5 April 2023]

I held that there was no procedural unfairness, and in any event that the judicial review proceedings were an abuse of process given the restrictions on rights of appeal of decisions of the Family Court.

[2]    Mr Coney now seeks costs. The claim is modest. It is significantly less than what Mr Coney would be entitled to if costs were awarded on a 2B basis. The claim is for a total of $4,867.14, involving an award corresponding to counsel’s fee of

$3,450, with the balance being disbursements.

[3]    In response Ms Larsen has filed an affidavit explaining her perspective, and suggesting that costs should lie where they fall. She says that she is impecunious, that she was attempting to bring these proceedings as a litigant in person, that her claims were not completely without merit, and the Court should follow the approach to the award of costs in care of children matters which I refer to below.

The principles

[4]    Costs awards in this Court are regulated by Part 14 of the High Court Rules 2016. Part 14 is to be applied in a particular way in care of children matters, however.

[5]    In H v A Pankhurst J indicated that a primary consideration in such matters was the best interests of the child or children, and the pursuit of legitimate questions concerning the care of children should not be inhibited by costs awards.2 In Hawthorne v Cox the Court of Appeal referred to this view, and to a potentially different approach in other authority, and endorsed the view of the importance of the interests of the child in costs decisions.3 I applied an approach recognising these points in Adams v Watcher,4 and Hampton v Rennie.5

[6]    As the Court of Appeal indicated in Hawthorne, different considerations potentially arise on appeal to the High Court. Whilst parties:6

2      H v A (2002) 22 FRNZ 447 at [17]. See also R v S [2004] NZFLR 207 at [59]-[65].

3      Hawthorne v Cox [2008] NZCA 146 at [26]–[28].

4      Adams v Watcher [2021] NZHC 432.

5      Hampton v Rennie [2022] NZHC 1681.

6      Hawthorne v Cox, above n 3, at [28] (footnotes omitted).

… should not be discouraged from raising all genuine and responsible arguments they believe to be in the best interests of the child in the lower court, the same might not apply on appeal given that litigation and uncertainty will be prolonged …

[7]    In the end this involves the application of the discretion in relation to costs under r 14.1, and the potential refusal or reduction of awards under r 14.7(g).

Application

[8]    The key factor in the present case is that Ms Larsen had a legitimate reason to have concerns about her child being vaccinated. She had a personal family history of adverse reactions to vaccination. Her concerns were genuine, and understandable. Her criticisms of the Family Court processes were not justified, however. I am nevertheless conscious that she was further advancing an issue of genuine concern to her, and that her focus was on the best interests of her child. I also accept that she is a person of limited means, and that some of the flaws in her proceeding may not have been obvious to her.

[9]    Given the above factors, and without seeking to confine the approach that might be taken by the Family Court, there may not be reason to award costs against Ms Larsen in that Court. But as the above principles suggest the position can be different on appeal, and to a challenge to the Family Court by way of judicial review.

[10]   Given the above factors I have nevertheless decided that Ms Larsen should not be required to pay costs associated with the cost of Mr Coney’s lawyer. I should say, partly for Ms Larsen’s benefit, that the cost claimed for legal fees in that connection was modest. It is quite wrong to suggest,  as Ms Larsen does in  her affidavit, that  Mr Coney “chose to engage one of the most expensive lawyers”. But, on balance, I have decided that Ms Larsen should not be required to pay costs associated with legal fees. But Ms Larsen should take on board that there are costs consequences of going to court. If in the future she engages in any further steps that result in the need for further litigation she is unlikely to be treated this leniently.

[11]   The position is different in relation to disbursements, however. The disbursements are out of pocket expenses incurred by Mr Coney, not only involving

the filing fee and sealing fee, but most significantly including the cost of preparing the bundles for the hearing in the amount of $1,057.14. That is an expense that Ms Larsen would normally have been expected to cover herself as the applicant in the judicial review proceeding. But the cost was met by Mr Coney to facilitate the smooth running of the urgent hearing of Ms Larsen’s challenge. There is no basis for Ms Larsen to avoid a costs award against her in relation to the disbursements.

[12]   For these reasons Mr Coney is awarded the amount of $1,417.14 by way of costs.

Cooke J

Solicitors:

Crown Law, Wellington for the First Respondent

Succeed Legal Ltd, Wellington for the Second Respondent