OH v WH [2013] NZHC 2318 (4 September 2013)

Last Updated: 16 September 2013

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO

11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE HTTP://WWW.JUSTICE.GOVT.NZ/COURTS/FAMILY- COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-702 [2013] NZHC 2318

BETWEEN	OH Appellant
AND	WH Respondent

Hearing:	4 September 2013
Appearances:	D Milliken for the Appellant J Steele for the Respondent
Judgment:	4 September 2013

_{ORAL JUDGMENT OF MALLON J}

Introduction

[1] This is an appeal by the appellant, the father, against the respondent, the mother, of a Family Court decision ordering that he pay indemnity costs to the mother of $7,382.63. Scale costs, if ordered, would have been $7,232 on a 2B basis. The father says that this was not an appropriate case for indemnity costs nor for any lesser costs order.

The background

[2] The background to the costs order is an amended parenting order made on

17 September 2012. That parenting order was described by Judge Grace as

_{“probably the most detailed parenting order I have seen in 18 years of sitting on the}

OH v WH [2013] NZHC 2318 [4 September 2013]

bench”.1 Pursuant to that order, amongst other things, the mother had the right to take the children to Germany for a four week period in July 2013. The mother gave the father notice that she intended to take up that option.

[3] The father then approached the mother suggesting that because he was going to be in Israel at or about the same time he saw no reason why the children should not travel from Germany to Israel, during the period that they were in Germany, for a period of about seven days so that the children could spend time with their paternal side of the family. He had a brother who lived in the United States who was also likely to be in Israel with his family at that time. The mother was opposed to the change and there was therefore no agreement between the parents. This meant that, in terms of the amended parenting order, the trip from Germany to Israel to spend time with the children’s paternal family was not permitted.

[4] Following correspondence between the parties in October and November

2012 about the father’s wish for this trip, on 3 December 2012 the father applied to vary the parenting order. The variation was to seek to have the children travel to Israel during the four week period that they would be in Germany. The application generated a number of court documents. These were:

(a) the father’s application without notice for an order reducing the time for filing a defence;

(b) the father’s application for costs; (c) an affidavit of the father;

(d) a minute of the Family Court Registrar;

(e) the mother’s application to strike out the father’s application; (f) the mother’s notice of defence;

1 OH v WH [2013] NZFC 760 at [3].

(g) an affidavit from the mother;

(h) the father’s application to extend the time for a response to the

mother’s strike out application; (i) a memorandum of the father;

(j) the father’s notice of defence to the mother’s strike out application; (k) a further affidavit of the father;

(l) a memorandum for the Judge filed on behalf of the father; (m) a memorandum of lawyer for the children;

(n) synopsis of submissions for the mother.

[5] The father’s application was heard and dismissed by Judge Grace on

31 January 2013.2 He accepted that the father’s application had been made genuinely but considered it was important that the parties have certainty and do not come back to the Court at the “drop of a hat” to relitigate matters. He also made an order that there was to be no further applications by either party for a period of two years unless there was an application for leave and justified grounds for a variation were made out.

The costs decision

[6] An opportunity was given for the parties to make submissions on costs. Submissions were filed in which indemnity costs were sought by the mother. The submissions were considered on the papers. Judge Grace gave his decision on

11 April 2013.3

[7] The Judge referred to the wide discretion in s 142 of the Care of Children Act in respect of costs. He noted two factors of relevance. Those factors were, firstly,

2 OH v WH, above n 1.

that under Care of Children Act cases it is not appropriate to award costs as a matter of course in favour of a successful party. The other factor he referred to was that costs should not be reverted to in an attempt to deter one party or parties in general from pursuing genuine and realistic applications before the Court.

[8] Having referred to those factors, the Judge nevertheless considered that costs were appropriate in this case. He considered that to be because, within three months of detailed parenting orders being made which covered the situation that had arisen, the father had sought to vary these orders for reasons of convenience to the father rather than because of any risk to the children’s physical, mental or moral upbringing. The Judge also took into account that the father had proceeded with the application despite being warned by the mother’s counsel that indemnity costs would be sought.

[9] Having concluded that an order for costs was appropriate the Judge then turned to consider the application for indemnity costs. In that respect the Judge said as follows:4

Indemnity costs are covered in the District Court[s] Rules, r 47C(4). In this case the relevant provision is s 47C(4)(a).

In this case the argument for indemnity costs is based upon the fact that the father was warned that if he continued with the proceedings, costs would be [a] relevant issue for the court to determine in due course. Notwithstanding this, he chose to continue.

In my view this is a case where the Court should award indemnity costs. There will therefore be an order for costs against the father in the sum of

$7,382.63.

My assessment of the appeal

[10] Because this is an appeal against a discretion, the father must show that the Judge made an error of law or principle, took account of irrelevant considerations, failed to take account of irrelevant consideration or that the decision was plainly

_wrong.5

4 At [16]-[18].

[11] The father contends that there was no principled basis on which to order costs when the father had acted genuinely. He refers to the decision of Reeve v Sampogna where Justice Heath made the following comment:6

In my view, it is wrong in principle to make an adverse order for costs against a parent who advances a genuine and responsible argument in what he or she regards as the best interests of the child. If costs orders are made in those circumstances they may operate as a disincentive for such arguments to be put to the [Family] Court.

[12] The father further says that if acting genuinely it should be irrelevant that he made the application soon after the parenting order was made. He says that there is nothing in the Care of Children Act to confine variations to matters where children are at risk. He says that the application was dealt with reasonably expeditiously. He says that the Judge did not take into account r 4.6.4(a) of the District Courts Rules. And he says that the fact of having been warned that indemnity costs would be sought is not a sufficient basis upon which indemnity costs should be ordered.

[13] Dealing with each of those points in turn, in Reeve the Judge does not go as far as to say that genuine applications can never warrant an award of costs. Notwithstanding the genuineness of an application, there may be other factors that are relevant. The statement relied on on behalf of the father refers to a “genuine and responsible argument”. Even on the basis of that statement therefore, costs might be ordered in respect of a genuine but not responsible argument.

[14] As to the question of timing, in my view this was a relevant factor in the Judge’s assessment of costs. The application was brought almost immediately after the amended parenting orders had been finalised following the process that the Judge had described in his decision. The application was an unnecessary one in the sense that no real or at least pressing change in circumstances had arisen to warrant the application being made. As the Judge found it was an application made more out of convenience than in terms of the children’s needs.

[15] I agree that the Care of Children Act does not confine applications to situations where there is some risk to the children. But that does not mean that

6 Reeve v Sampogna [2003] 22 FRNZ 1017 (HC) at [63].

applications that are framed as being in the best interests of the children, but in reality are applications of convenience and not in the best interests of the children, cannot be the subject of costs.

[16] I agree that the father, who was unrepresented before the Family Court, dealt with the matter reasonably expeditiously. Nevertheless the application did generate the court documents that I have referred to already and as a result the mother was put to legal costs that she ought not to have incurred.

[17] I do not agree that the Judge did not take into account r 4.6.4(a) of the District Courts Rules. The Judge referred to r 47C(4)(a) which was the relevant provision in the District Courts Rules 1992. Those rules have been replaced by the District Courts Rules 2009. It is the 2009 Rules, not the 1992 Rules, that apply. However r 4.6.4(a) is in identical terms as the 1992 rule. As I read the Judge, he ordered indemnity costs because he regarded the father’s application as being within that provision. He was not awarding costs merely because a father had been warned. Rather it was a combination of an unnecessary application which ought not to have been pursued and that the father had been warned of the consequences of pursuing such a proceeding. I do agree, however, that if indemnity costs had been awarded merely because a warning had been given, that would not be a sufficient basis on which to order indemnity costs.

[18] Overall the submission is made for the father that there was a leap from a decision that costs were appropriate to a decision that the costs should be indemnity costs, and that there was an insufficient basis on which to make that leap. I would have been concerned about the decision but for the fact that indemnity costs in this case were in effect scale costs as the Judge was aware. Had that not been the case I would have regarded the decision to award indemnity costs as plainly wrong. But I do not take the same view when indemnity costs were essentially scale costs.

[19] The father raises whether scale costs were too high given their closeness to actual costs and that there ought to have been a consideration as to what a reasonable contribution to costs ought to have been. I do not accept this submission because the submissions to the Judge set out the calculation of scale costs. They were before the

Judge. He was able to see how they had been determined and it is apparent from the ultimate decision that he made that he was satisfied that scale costs were not unreasonable in the circumstances. I also accept the point that the mother’s counsel has made today that where an unrepresented party is making applications there can be additional work involved for the counsel in considering and opposing the applications. It also does appear that the actual costs incurred were incurred efficiently.

Result

[20] The appeal is dismissed. That leaves the issue of costs in this case. I might have been inclined to order costs on a 1B basis given that the point was narrow and the appeal has been dealt with efficiently by the father’s counsel today. However on balance I accept that 2B costs are appropriate on the appeal. Category 2 was the category put forward by both parties at the case management conference and was accepted by Williams J. There is no sufficient basis for me to now take a different view. Accordingly costs on the appeal will be on a 2B basis.

Mallon J