Snow v Rovida - [2018] NZHC 1586

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND
11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE judgments/

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-659 [2018] NZHC 1586

UNDER the Care of Children Act 2004

BETWEEN

SNOW Appellant

AND

ROVIDA Respondent

Hearing: 9 November 2017

Appearances:

L A Anderson for Appellant
J H Rennie for Respondent

Judgment:

29 June 2018

JUDGMENT OF CLARK J

Introduction

[1] Mr Snow appeals against a decision of Judge Moss ordering him to pay
Ms Rovida’s costs following proceedings relating to the care arrangements in respect of their daughters.1 Fictitious names have been adopted for the parties to protect the identity of the children. References to the Family Court decisions similarly use the fictitious names.

1 [Rovida] v [Snow] [2016] NZFC 8899 [Costs decision].

SNOW v ROVIDA [2018] NZHC 1586 [29 June 2018]

Background

[2] Ms Rovida and Mr Snow separated in 2009. The parents shared the care of their two daughters. In August 2011 they consented to a parenting order whereby care was shared on a 2, 2, 5, 5 nights basis.

[3] That arrangement was varied in January 2014 when the Family Court made a parenting order by consent providing for shared care of the children on a week-about basis.

[4] On 28 March 2014 Ms Rovida applied to the Court for directions to enable one of the daughters to undergo surgery. Medical advice was that she needed an adenotonsillectomy but Mr Snow opposed surgery. Ms Rovida also sought a variation to the January 2014 parenting order so that she would have day-to-day care of the children and Mr Snow would have care four days every fortnight. Mr Snow opposed any change to the parenting order. The Family Court made orders by consent on
26 June 2014 that the daughter was to have her surgery as soon as possible.

Ms Rovida’s application to vary the parenting order remained outstanding.

[5] On 1 October 2014 Mr Snow filed an interlocutory application for an interim parenting order pending the substantive hearing of Ms Rovida’s application. He sought day-to-day care of the children with the mother to have supervised contact four days per fortnight.

[6] Judge Whitehead declined leave to apply noting that Mr Snow had not complied with the statutory leave requirements but, even if he had, the Judge would have declined the application. What was required was that the parties (including the stepmother) improve their relationships in order to improve the co-parenting of the children. The substantive proceeding was to be heard urgently.2

[7] The substantive proceeding came before Judge Moss in June 2015. At the end of a five-day hearing, and having provided the Family Court with some 420 pages of evidence, the parents agreed to continue a week-about arrangement and to commit to

2 [

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 Snow v Rovida

Details

AGLC: Snow v Rovida [2018] NZHC 1586
Case: [2018] NZHC 1586
Decision Date: 29 June 2018

CaseChat Overview and Summary

Snow appeals against a decision of Judge Moss ordering him to pay Rovida's costs following proceedings relating to the care arrangements in respect of their daughters. The appeal raises three primary issues: (a) Was there jurisdiction to order costs on the surgery application? If so, was an indemnity costs award available to the Judge? (b) Was there jurisdiction to award costs on Snow's interlocutory application? (c) Was there a proper basis for a costs order in respect of the parenting order litigation?

The appeal was dismissed. The Court held that there was no error in the Judge's approach to the award of costs on Snow's interlocutory application. The Court found that Judge Moss had jurisdiction to award costs in cases where a party has unreasonably prolonged litigation, or otherwise conducted the litigation in a manner that has brought greater costs on another party, or has caused detriment to the welfare of the child. The Court also held that the award of costs on the general litigation was within the Judge's discretion and the quantum awarded was not excessive.

Orders