Reid v Gelbart

[2020] NZHC 975

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2662

[2020] NZHC 975

UNDER

The Care of Children Act 2004

IN THE MATTER

of an appeal against a decision of the Family Court

BETWEEN

SARAH JAYNE AMANDA REID

Appellant

AND

SHACHAR GELBART

Respondent

Hearing:

On the papers

Appearances:

B Keith for Appellant

A Hansen for Respondent

Judgment:

13 May 2020

JUDGMENT OF LANG J

[on costs]

This judgment was delivered by me on 13 May 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

Solicitors:

Thomas Dewar Sziranyi Letts, Lower Hutt Haigh Lyon, Auckland

B Keith, Barrister, Wellington S Jefferson QC, Auckland

A Hansen, Barrister, Auckland

REID v GELBART [2020] NZHC 975 [13 May 2020]

[1]    On 21 April 2020 this Court was scheduled to hear an appeal by Ms Reid against a judgment delivered by Judge Druce in the Family Court on 28 November 2019.1 On 8 April 2020 the appellant, Ms Reid, filed a notice of discontinuance.

[2]    Counsel have been unable to reach agreement regarding the issue of costs on the appeal. They have filed memoranda addressing that issue and the Registrar has referred these to me as Duty Judge for a decision to be made on the papers.

Background

[3]    The judgment under appeal related to an order made by the Judge requiring the parties’ five year old son to be returned to Kenya, where he had been living with the respondent, his father.

[4]    The discontinuance of a civil proceeding would ordinarily entitle the defendant or respondent to an award of costs because the unsuccessful party is generally required to contribute to the costs of the successful party.2 The respondent relies on this principle in seeking an award of costs in his favour.

[5]    Ms Reid contends this would be inappropriate in the circumstances of the present case. She says she was forced to discontinue the appeal by events beyond her control, namely the worldwide Covid-19 pandemic. She says this has also now required the Family Court to reconsider whether her son should return to Kenya.

[6]    On Ms Reid’s behalf Mr Keith has provided the Court with a copy of a minute issued by Judge Burns in the Family Court on 23 April 2020. This directs a further hearing in the Family Court to reconsider how the orders made by Judge Druce can be implemented given that fact that most, if not all, travel to Kenya has now been suspended.

[7]    I do not accept Mr Keith’s submission that the issue that was to be argued on the appeal is now to be reconsidered by the Family Court. The following passages

1      Gelbart v Reid (relocation) [2019] NZFC 9520.

2      High Court Rules 2016, r 14.2.1(a).

from the Minute demonstrate that the issue decided by Judge Druce is not to be reconsidered or revisited at the forthcoming hearing in the Family Court:

[10]      Therefore there has to be further hearing to consider all of the issues and whether the orders made by Judge Druce can now be safely and appropriately in the best interests and welfare of the child implemented. There is no question that the orders remain on foot and this is not to be an opportunity to rehear any of the matters before the Court and heard by Judge Druce. It is not a rehearing but a question of whether the orders can be appropriately implemented or whether there should be a deferral pending further evidence being presented to the Court that the orders are in fact viable.

[11]      I therefore direct that further hearing which I am going to direct below is not to be an opportunity for Ms Reid to revisit the determinations and issues made by Judge Druce which are now confirmed following the abandonment of the appeal. There is no doubt that the child can travel to Kenya. It is not a question of if but when. The whole focus of the hearing which I am going to direct will be on the question of timing of the implementation of the orders and whether any additional conditions need to be added. Accordingly I make the following directions:

…

[8]    These observations make it clear that the orders made by Judge Druce remain intact, and the only issue to be reconsidered in the Family Court is their implementation. It follows that the respondent remains the successful party on the appeal to this Court notwithstanding the hearing that is about to be held in the Family Court. He is therefore entitled to costs on a Category 2B basis for all steps taken in the appeal together with disbursements as fixed by the Registrar. The security for costs that the appellant paid into this Court is to be applied by the Registrar in part- payment of those costs.

Lang J