Lowe v Auckland Family Court

[2017] NZHC 1173

NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995

AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980.  FOR FURTHER INFORMATION, PLEASE SEE US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-2593 [2017] NZHC 1173

BETWEEN

LOWE

Applicant

AND

AUCKLAND FAMILY COURT First Respondent

WAY

Second Respondent

Hearing:	On the papers
Appearances:	S L Abdale for Applicant A F Todd for First Respondent J E McLennan for Second Respondent M K Headifen as lawyer for the child
Judgment:	31 May 2017

JUDGMENT OF LANG J [on costs]

This judgment was delivered by me on 31 May 2017 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

LOWE v AUCKLAND FAMILY COURT [2017] NZHC 1173 [31 May 2017]

[1]      In  this  proceeding  the  applicant  applied  for  judicial  review  of  five interlocutory decisions made by a Judge in the Family Court.

[2]      On 24 April 2017 I issued a judgment in which I found that grounds for review of one of those decisions had been established, but I declined to order relief in respect of that decision.1   I found that grounds for review in respect of three other decisions had not been established.  I made no finding in relation to the remaining decision because the applicant did not pursue that ground at the hearing.

[3]      At the conclusion of my judgment I indicated that my initial impression was that honours had been reasonably evenly shared and that costs should lie where they fall.   The applicant does not share this view and nor does the second respondent. Each seeks costs against the other.  The applicant also seeks costs against the first respondent, the Auckland Family Court.   It is now necessary to determine those applications.

The claims for costs by the applicant and the second respondent

[4]      I do not propose to traverse the detailed submissions made by counsel in their respective memoranda.   In short, Ms Abdale for the applicant submits that costs should be awarded to her client because she succeeded in principle in respect of the most significant issue raised by the proceeding.  This related to whether the Judge was entitled to dismiss an application the applicant had filed seeking orders under the Domestic Violence Act 1995 (the DVA) without giving her an opportunity to be heard.

[5]      Ms Abdale also submits that the Court needs to adhere to the principles set out in the Care of Children Act 2004 (CCA), because the present proceeding related in large part to the parties’ son.  Furthermore, she submits that the Court should take into account the fact that the applicant is in very difficult financial circumstances.

[6]      Mr  McLennan  for  the  second  respondent  submits  that  his  client  should receive costs because he succeeded in relation to most of the claims made by the

1      Lowe v Auckland Family Court [2017] NZHC 1173.

applicant.   For that reason he submits that costs should follow the event and an award of costs in favour of the second respondent is justified.

Decision

[7]      Having reviewed the file and my decision again, I confirm my tentative view that costs should lie where they fall.  The bulk of the time during the hearing was occupied in dealing with three issues.  My decisions in relation to these also formed the bulk of my judgment.  The issues were whether the Judge should have dismissed the application for orders under the DVA, whether he should have directed that certain affidavits filed by the applicant in the CCCA proceeding should be removed from the file and whether relief should be granted in respect of the decision in respect of which I found grounds for review to have been established.  The applicant succeeded in respect of the first of these but was unsuccessful in relation to the other two.  Of the three issues, I consider that the first was roughly equal in importance to the other two combined.   There was virtually no time spent at the hearing on the challenge to the remaining decisions because the outcome in respect of those was fairly obvious to all concerned.

[8]      I do not accept that reference to the principles contained in the CCA is helpful in the present context because this case related to challenges to procedural steps taken in the Family Court rather than to matters of substance affecting the parties’ son.

[9]      I acknowledge that the applicant is in difficult financial circumstances, but an adverse award of costs was always a possibility when she elected to institute proceedings in this Court without the benefit of a grant of legal aid.   I do not consider it would be appropriate to make an allowance for that fact when the second respondent has also no doubt been put to considerable expense as a result of a proceeding that did not produce a positive outcome for either party or their son.

[10]     There will be no order for costs as between the applicant and the second respondent.

The application for costs by the applicant against the second respondent

[11]     The applicant seeks costs against the second respondent because the Judge whose decisions were the subject of challenge in this proceeding continued to issue interlocutory decisions in the Family Court.  That does not give rise to a justifiable claim for costs against the second respondent in this proceeding because it concerns matters outside the purview of this proceeding.

[12]     The second respondent abided the decision of this Court from the outset and sought only to be heard in the event that an issue as to costs arose.  Thereafter the second respondent played no part in the proceeding at all.  For that reason it would be inappropriate to make an order for costs against the second respondent.

Costs in respect of lawyer for the child

[13]     Hinton  J  reappointed  Mr  Headifen  as  lawyer  for  the  child  when  the proceeding was called in this Court for the first time on 21 November 2016.  As matters transpired, however, Mr Headifen played a minimal role in the proceeding because it did not relate directly or substantively to the parties’ son.  Rather, and as I have already observed, it involved challenges to procedural steps taken in the Family Court.

[14]     Section 135A of the CCA requires the Court to make an order requiring the parties  to  reimburse  the  Crown  in  specified  proportions  in  respect  of  the  costs incurred by the Crown when the Court appoints a lawyer to act on behalf of a child. The Court may, however, depart from this requirement where it considers that such

an order would be inappropriate.2

[15]     With the benefit of hindsight, there was no need for this Court to reappoint Mr Headifen for the purposes of the present proceeding.   It follows that I do not consider it would be appropriate for the parties to be required to contribute to his costs.  I therefore make an order under s 135A(4) of the CCA that neither party is

required to reimburse the Crown in respect of Mr Headifen’s costs.

2      Care of Children Act 2004, s 135A(4).

Lang J

Solicitors:

Vicki Pomeroy Law, Auckland

Holmden Horrocks, Auckland
Counsel:

S Abdale, Auckland

M K Headifen, Auckland