RM v JB - [2022] NZHC 2605

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-488-000091

[2022] NZHC 2605

BETWEEN
RM

Appellant

AND

JB

Respondent

Hearing: On the papers

Counsel:

L J Kearns KC and K Cohen for Mr M C Muston for Mrs B

V A Crawshaw KC and M Davies for Ms K N J Dore and G Thompson for Mr B

D W Hart for the children (V and L)

Judgment:

10 October 2022

JUDGMENT OF KATZ J

[Costs]

This judgment was delivered by me on 10 October 2022 at 2:00 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Thomson Wilson
Henderson Reeves Connell Rishworth Wills Westenra Ltd
C Muston D W Hart

Counsel: L J Kearns KC
V A Crawshaw KC

M v B [2022] NZHC 2605 [10 October 2022]

CIV-2021-488-000097 CIV-2021-488-000098

IN THE MATTER of an appeal against the decision of the
Family Court dated 4 August 2021

BETWEEN KV
Appellant in CIV-2021-488-000097 Respondent in CIV-2021-488-000098

AND CB
Appellant in CIV-2021-488-000098 Respondent in CIV-2021-488-000097

Introduction

[1] On 20 May 2022 I delivered a judgment (the appeal judgment) in respect of three inter-related appeals from a decision of the Family Court1 relating to the care arrangements and parenting orders for two step-siblings – a nine-year-old girl (V) and a five-year-old boy (L).2

[2] L is the child of Mr B and his former partner Ms K. V is the child of Mrs B and her former partner Mr M. Mr and Mrs B entered into a relationship in early 2018 and married in February 2019. V and L live with Mr and Mrs B some of the time.

[3] Following delivery of the appeal judgment, the following costs issues must now be determined:

(a)Should Mr M be ordered to pay costs to Mrs B, as sought by her?

(b)Should any or all of the parties be required to contribute to the costs of lawyer for the child?

Should Mr M be ordered to pay costs to Mrs B?

[4] In the Family Court, Judge King found that V had been psychologically abused in the care of Mr and Mrs B. Despite this, the Judge held that V was safe in her mother’s unsupervised care going forwards and ordered that V was to continue to be in the shared care of her parents on a week about basis. Mr M appealed that decision on the basis that serious risks were posed to V’s psychological safety by allowing her to remain in her mother’s care on a week about basis. He sought an order granting him day-to-day care of V, with Mrs B having only supervised contact under strict conditions.

[5] I dismissed Mr M’s appeal. Although I found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RM v JB

Details

AGLC: RM v JB [2022] NZHC 2605
Case: [2022] NZHC 2605
Decision Date: 10 October 2022

CaseChat Overview and Summary

RM and JB were involved in a legal dispute concerning the care arrangements and parenting orders for two step-siblings, V and L. The Family Court had previously ruled on the matter, with RM appealing the decision. The appeal was heard in the High Court, where the Court was required to decide whether RM should be ordered to pay costs to JB, as sought by her, and whether any or all of the parties should contribute to the costs of a lawyer for the child.

The High Court, in dismissing RM's appeal, considered the principles relating to costs awards in Family Court proceedings. The Court noted that in Family Court proceedings, costs are not necessarily awarded to the successful party but may be awarded on the consideration of all relevant factors. The paramount consideration in Family Court proceedings is the welfare and best interests of the child. The Court also considered the impact that a costs award would have on a parent and by extension the child’s welfare.

In this case, the Court found that RM had advanced a genuine and responsible argument which he considered was in V’s welfare and best interests, and that the appeal was responsibly brought and pursued. The Court also accepted that awarding 2B scale costs against RM would likely have a serious impact on his household, including his ongoing support of V. Taking these factors into account, the Court concluded that an award of costs was not appropriate in this case.

Regarding the costs of the lawyer for the child, the Court found that ordering any of the parties to reimburse the Crown for a portion of the costs would cause serious hardship to the parties and/or their dependent children. As a result, the Court declined to order any of the parties to contribute to the costs of the lawyer for the child.

In conclusion, the Court declined JB's application for costs against RM and also declined to order any of the parties to reimburse the Crown for the costs of the lawyer for the child.

Orders