RMJ v BJG - [2017] NZHC 2470

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS
11B TO 11D OF THE FAMILY COURTS ACT 1980, FOR FURTHER INFORMATION, PLEASE SEE
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000795 [2017] NZHC 2470

BETWEEN
RMJ

Appellant

AND

BJG Respondent

Submissions filed:
31 July 2017 (Respondent twice); 28 and 29 August 2017

(Appellant)

Counsel:

A M Corry for the Appellant
P A Cowey for the Respondent

Judgment:

9 October 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [COSTS]

The appeal and its outcome

[1] In November 2015, Judge J A McMeeken made a parenting order under the Children, Young Persons and their Families Act 1989 (“2015 judgment”).1 The Court ordered unsupervised contact between the parties’ daughter and the respondent on carefully crafted terms. There had been a similar outcome in earlier proceedings
between the parties in 2011 (“2011 judgment”).2

1 [Anonymised] v [Anonymised] [2015] NZFC 9517 (“2015 judgment”).
2 RMJ v BJG FC Ashburton FAM-2010-003-000151, 29 September 2011 (“2011 judgment”).

RMJ v BJG [Costs] [2017] NZHC 2470 [9 October 2017]

[2] The appellant’s appeal to this Court under the Care of Children Act 2004 (“COCA”) from the 2015 judgment was dismissed (“appeal judgment”).3 Each of the five grounds of appeal failed. Costs were reserved.

The interlocutory applications and their outcome

[3] Before the appeal itself was heard, this Court heard and determined two sets of interlocutory applications of the appellant. First, the appellant applied for leave to bring out of time an appeal against the 2011 judgment. Secondly, the appellant applied for leave to adduce on her appeal from the 2015 judgment two sets of opinion evidence and one set of documentary evidence.

[4] The Court delivered two parallel judgments both on 2 September 2016 (“the interlocutory judgments”). In the first, the Court dismissed the appellant’s application for leave to appeal the 2011 judgment.4 In the second, the Court granted one aspect of the interlocutory applications in relation to one set of expert evidence and dismissed the aspect that related to documentary evidence.5

Costs

The legal aid position

[5] The appellant was in receipt of legal aid for the appeal. The provisions of s 45 Legal Services Act 2011 (“LSA”) therefore apply. I return below at [90] – [103] to the application of the LSA’s provisions.

Party/party costs

[6] The respondent seeks an order that the appellant pay his costs and disbursements of the appeal on a 2B basis.6 For the respondent, Mr Cowey submits that although s 45(2) LSA applies, there are exceptional circumstances justifying an
order of costs. In the event the Court declines to make such an order, Mr Cowey

3      RMJ v BJG [2017] NZHC 1159 (“appeal judgment”).
4      RMJ v BJG [2016] NZHC 2077 (“first interlocutory judgment”).
5      RMJ v BJG [2016] NZHC 2078 (“second interlocutory judgment”).
6      High Court Rules, Category 2 under r 14.3(1) and band B under r 14.5(2).

seeks an order under s 45(5) LSA specifying what the costs order would have been but for the provisions…

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 RMJ v BJG

Details

AGLC: RMJ v BJG [2017] NZHC 2470
Case: [2017] NZHC 2470
Decision Date: 9 October 2017

CaseChat Overview and Summary

RMJ appealed against a parenting order made in the Family Court. The appeal was dismissed. The respondent now seeks costs against the appellant of the appeal and two interlocutory applications. The appellant opposed the making of any costs orders. The court held that the appellant's conduct of the appeal and the proceedings generally has been unreasonable and contrary to the best interests of the child. The court found that the welfare of the child would be best served by the imposition of costs on the appellant. The court also found that the appellant's limited financial means precluded the imposition of any costs against her. The court made an order under the Legal Services Act 2011 specifying what costs orders would have been made but for the appellant's receipt of legal aid.

Orders