Palmer v Holm

[2015] NZHC 226

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS

11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2014-404-000174 [2015] NZHC 226

IN THE MATTER

of an appeal against a decision of Judge

S J Maude made in the North Shore
Family Court on 23 December 2013

BETWEEN

L PALMER Appellant

AND

C P HOLM Respondent

On the papers
Counsel:	A E Ashmore for the Appellant S D Cummings for the Respondent
Judgment:	19 February 2015

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 19 February 2015 at 4.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

PALMER v HOLM [2015] NZHC 226 [19 February 2015]

[1]      In a judgment delivered on 18 September 2014 I dismissed an appeal from a decision of the Family Court at North Shore severely restricting the appellant’s contact with his alienated nine year old son.1   This judgment deals with the costs of that appeal.

[2]      The respondent seeks increased costs pursuant to r 14.6 of the High Court Rules on the basis that the appeal lacked merit and the appellant contributed unnecessarily to the time and expense of the proceeding.  The appellant submits that there should be no order as to costs in this case.  Alternatively, he submits that costs should be reduced because the respondent contributed unnecessarily to the time and expense of the proceeding by filing voluminous submissions that did not comply with the rules.

Should increased costs be awarded?

[3]      This is a particularly difficult case involving a child who is alienated from his father.  The Family Court Judge found that both parents must take responsibility for this.  The Judge was faced with having to make a very difficult decision.   Having considered the matter very carefully, the Judge decided that the best course was to leave the child in the sole care of the respondent and severely limit ongoing contact with the appellant, rather than persevere with attempts at ongoing contact or place the child in the appellant’s sole care.  I can understand the appellant’s concern about this decision and the reasons he considered an appeal should be pursued.  I do not accept the respondent’s submission that the appeal was unjustified or without merit.

[4]      The appeal necessarily required  a meticulous  examination of all relevant background facts and scrutiny of the evidence including the expert reports.  Counsel on both sides reviewed this material in considerable detail in their submissions, as was necessary.   In my view, it would be quite inappropriate to make an increased costs award against the appellant  in this case.   He should not be penalised for pursuing the appeal despite its inherent difficulty or for the manner in which it was pursued.

Should costs be decreased?

[5]      The appellant submits that the respondent contributed unnecessarily to the time  and  expense  of  the  proceeding  by  filing  lengthy submissions  that  did  not comply with the rules.  The submissions initially filed by the respondent were almost

70 pages long.   After the appellant complained, the respondent filed replacement submissions.

[6]      As I have already noted, the issues raised on the appeal meant that there was no way of avoiding a careful review of the lengthy background circumstances, about which there was considerable dispute between the parties.   Extensive submissions were filed on both sides.  I do not consider that the costs to which the respondent might  otherwise be entitled  should  be reduced  on  account  of the length  of her submissions.

Should there be an award of costs?

[7]      Costs are discretionary.   In a case such as the present where the interests of the child are paramount, costs will not necessarily, or even generally, follow the event.2     This is because it would be contrary to public policy to discourage meritorious appeals pursued in the child’s interest by the imposition of adverse costs awards.   Such appeals are not pursued in the appellant’s own interest, but for the benefit of the child.

[8]      This is such a case.   The issues were extremely difficult and there was no obvious solution; it required choosing the least harmful course.   The appeal had merit and the appellant was justified in pursuing it for the long term benefit of his son.  There was nothing about the manner in which the appellant pursued the appeal that would require an award of costs.

[9]      I consider that in the particular circumstances of this case, the costs of the appeal should lie where they fall.

Result

[10]     I make no order for costs.

M A Gilbert J