Lister v Roberts
[2021] NZHC 2964
•3 November 2021
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,
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-1783
[2021] NZHC 2964
UNDER the Care of Children Act 2004, s 143 and the District Court Act 2016, s 124 IN THE MATTER
of the Care of Children Act 2004
BETWEEN
LISTER
Appellant
AND
ROBERTS
Respondent
Hearing: On the papers Appearances:
Appellant in person Respondent in person
BPC Carter, counsel assisting the Court
Judgment:
3 November 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 3 November 2021 at 4:30 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Parties:
The Appellant The Respondent Copy to:
Mr BPC Carter, Barrister, Auckland
LISTER v ROBERTS [2021] NZHC 2964 [3 November 2021]
[1] Ms Lister seeks a waiver of the requirement to provide security for costs in her appeal against the reserved judgment of Judge S J Fleming in the Family Court at Auckland dated 19 August 2021 in proceedings under the Care of Children Act 2004 (the Act).1
[2] Following the first case management conference on 21 September 2021, I made timetable orders, including that Ms Lister pay security of $2,390 by 5 October 2021.
[3] On 22 September 2021 Ms Lister filed an ex parte application for waiver of security for costs.
[4] On 5 October 2021 I made further timetable orders varying my security for costs order so that security was not payable pending determination of Ms Lister’s application for waiver, directing service of the application and related papers on the respondent, Mr Roberts, timetabling any opposition and indicating that I would determine the waiver application on the papers.
[5]Mr Roberts opposes waiver of security for costs.
Factual background
[6] Ms Lister and Mr Roberts were both born in [foreign country]. Their relationship commenced in 2005 and they married in 2007. They have one child, John, aged 12, who was also born in [foreign country].2 They moved to New Zealand in October 2018.
[7] Following separation in 2019, there was no contact between John and his father for some months, except for a brief period over Christmas 2019. Mr Roberts applied to the Family Court in February 2020.
1 R v L [2021] NZFC 6541.
2 This judgment is an anonymised version will be distributed separately using the same anonymised names that Campbell J used in his recent judgments.
[8] Ms Lister is aged 47 and works as a [profession]. Mr Roberts is aged 70 and retired.
Family Court judgment
[9] The Family Court Judge found that there had been two instances of Mr Roberts using methods of discipline involving inappropriate physical contact on John. Even so, the Judge was satisfied that John was safe in the unsupervised care of his father. The Judge ordered gradual increased contact between Mr Roberts and John. The Judge’s order in summary was that:
· contact will extend to a day on Saturday for four weeks;
· then contact is to move to overnight from Saturday until Sunday one week and in the alternate week, day only (Saturday or Sunday) for eight weeks;
· then increase on the overnight weekend from Friday after school until Sunday evening for a further four weekends, and in the alternate week continuing to spend the day (Saturday or Sunday);
· then every second weekend Friday after school to Monday morning and no contact in the alternative weekend.
Appeal
[10]Ms Lister appeals on the grounds that the Judge erred:
(a)in fact in determining the number, date/time and severity of the episodes of violence between Mr Roberts and John;
(b)in fact and law in:
(i)excluding evidence of Mr Roberts’ history of abusive behaviour with Ms Lister on the ground that it was not relevant to the issue of John’s welfare and best interests; and
(ii)placing insufficient weight on Mr Roberts’ extensive history of violence in all its forms, including psychological and financial abuse of Ms Lister and John in making the safety findings;
(c)in fact and law in applying s 5 of the Act by:
(i)placing undue weight on increasing and normalising John’s unsupervised contact with Mr Roberts and requiring John to have contact with his grandparents;
(ii)placing insufficient weight on John’s safety and his right to be protected from all forms of violence; and
(iii)placing insufficient weight on John’s ongoing fear of unsupervised contact with Mr Roberts and the emotional harm that overnight contact would cause John;
(d)in fact and law in:
(i)finding that Mr Roberts did not pose a future risk to John; and
(ii)finding that overnight supervised contact was in John’s best interests;
(e)in fact and law in placing insufficient weight on John’s views under s 6(2)(b) of the Act.
[11]A separate appeal has been brought by John via his litigation guardian.
Approach to security for costs on appeal
[12] Under r 20.13(2) of the High Court Rules 2016, the Judge must fix security for costs at the case management conference relating to the appeal, unless the Judge
considers that in the interests of justice no security is required. As Lang J said in
Ngai Te Hapu Inc v Bay of Plenty Regional Council:3
The guiding principle is that an appellant will generally be required to provide security for the respondent’s costs. Security may be waived where it is in the interests of justice for that to occur, but exceptional circumstances will be required. In considering an application for waiver the Court is entitled to have regard to the importance of the issues raised by the appeal and the public interest in determining those issues. Although impecuniosity is not usually sufficient without more to justify a waiver, it may affect the quantum of security ordered.
Analysis
[13] Ms Lister applies for a waiver on fifteen grounds. It is unnecessary to recite them in full. I address the factors I consider to be relevant.
Impecuniosity
[14] Ms Lister claims that she does not have funds available to pay security and cannot obtain a bank loan due to the actions of Mr Roberts. She says the only collateral she has to offer in support of a bank loan is her home. Mr Roberts has lodged a caveat against the home on the ground that it is relationship property. Ms Lister did not provide details of her income and expenditure, nor assets and liabilities.
[15] Mr Roberts’ affidavit referred to Ms Lister’s affidavit of assets and liabilities filed in their Family Court relationship property matter where she apparently stated that she has income of approximately $209,000 per annum, primarily as a [profession].
[16] Ms Lister’s evidence falls short of satisfying me that she cannot pay the standard security of $2,390 for a one day hearing. A one day hearing is required for the two appeals to be heard together.
[17] In any event, impecuniosity is not usually sufficient without more to justify a waiver, although it may affect the quantum of security ordered. In the circumstances, I am not satisfied that impecuniosity calls for the quantum of security to be reduced.
3 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZHC 643 at [5].
Merits, importance and public interest of the appeal
[18] Ms Lister submits the proceeding involves family violence, the appeal has merit and involves a matter of public interest, including the protection of children who have experienced violence from further violence and the rights of children to have their views given adequate weight in parenting proceedings that affect them.
[19] Mr Roberts submits the case does not involve family violence and the appeal has “little merit” given the Judge’s “well-reasoned judgment”.
[20] It is neither possible nor appropriate to consider the merits of the appeal in any detail. But I make the following preliminary observations:
(a)The experienced Family Court Judge found there had been two instances of Mr Roberts using methods of discipline involving inappropriate physical contact on the child, but even so the Judge was clearly satisfied that the child was safe in the unsupervised care of his father.
(b)I accept that John does not want unsupervised contact with his father. The Family Court Judge understood that. She said that John was very clear that contact should be supervised. Nevertheless, the Judge concluded that increasing contact was in John’s best interests.
[21] In Campbell J’s recent stay judgment, he expressed the preliminary view that the merits are not strong.4 That is also my preliminary view. Thus, I am not in a position to conclude that the likely merits of the appeal weigh against requiring security to be provided.
[22] I accept the issues are of importance to Ms Lister and ultimately John’s welfare is the first and paramount consideration. In that sense the issues are important. This would be of particular significance if requiring security were likely to preclude the
4 Re Application by Price [2021] NZHC 2764 at [77].
appeal from being pursued. But it is relevant in this context that the child, by his litigation guardian, has filed a separate appeal.
[23] Also, the importance of the issues to Ms Lister and John does not mean the appeal raises an issue of public interest. The appeal appears largely based on challenging the Judge’s factual findings rather than issues of wider public interest.
Costs if the appeal is unsuccessful
[24] Ms Lister submits that Mr Roberts does not need the protection of security because he is self-represented in this appeal. As she submitted, the purpose of security for costs is to protect the other party for costs if an appeal is unsuccessful. The primary rule is that a lay litigant in New Zealand is not entitled to recover costs against an unsuccessful party.5 That rule is the subject of consultation, with a view to law reform, but is currently applicable. On that basis, there is merit in Ms Lister’s submission that, even if she is unsuccessful in this appeal, there is at least a reasonable prospect that costs would not be awarded against her. This weighs against requiring security to be provided.
[25] However, Mr Roberts submits that he does need costs protection if the appeal is unsuccessful as he intends to hire his lawyer from the Family Court proceedings to represent him in the appeal as soon as he receives funds from the relationship property case. While the timing is unclear, I accept that when Mr Roberts engages counsel this factor weighing against security will cease to apply.
[26] In custody and access appeals costs do not necessarily follow the event. This follows in part from the fact that the child’s welfare is the first and paramount consideration. But costs may well be awarded where one or both parties unnecessarily prolong litigation contrary to the interests of the child. Costs will be determined on consideration of all relevant factors.6 So it does not follow that security for costs is unnecessary in custody and access appeals.
5 McGuire v Secretary for Justice [2018] NZSC 116, [2019] 1 NZLR 335 at [55].
6 H v A (2002) 22 FRNZ 447 (HC) at [17]-[18], referred to in G v Cox [2008] NZCA 146 at [27].
See also Reeve v Sampogna (2003) 22 FRNZ 1017 (HC).
[27] Ms Lister submits this is not a case in which a costs award would not be recoverable from her unless security is paid. I accept that is likely given Ms Lister’s interest in the home which is subject to Mr Roberts’ caveat.
[28] Even so, I consider that the prospect of a costs award if the appeal is unsuccessful is a neutral factor given Mr Roberts’ stated intention to engage counsel.
Conclusion
[29] Taking these factors together, I consider the only factor approaching exceptional circumstances is Mr Roberts’ current self-represented status. Overall, I consider the interests of justice favour requiring security for costs to be paid once Mr Roberts has counsel acting for him in the appeal.
Result
[30]Ms Lister’s application for waiver is declined but I direct that the security of
$2,390 be paid within five working days of Mr Roberts’ counsel confirming that he is acting.
Gault J
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