Snow v Rovida [2018] NZHC 1586 (29 June 2018)

Last Updated: 29 October 2018

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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 [Snow] v [Rovida] [2014] NZFC 8928 at [49]–[50] [Interlocutory judgment].

monthly court-based mediation for 12 months, at the end of which a Court appointed psychologist would review progress.

[8] Although the hearing ended in agreement, on 24 July 2015 Judge Moss delivered judgment.³ Following delivery of the judgment, Ms Rovida sought costs. Mr Snow opposed costs and declined to engage in the mediation process unless

Ms Rovida withdrew her costs application. Judge Moss described the children being “left in limbo” because Mr Snow had not confirmed the week-about arrangement would continue and had hesitated to commit to mediation until the costs issue was resolved.⁴ Accordingly, it became necessary for Judge Moss to determine, not only the costs application, but the parenting application. Contention and paralysing conflict continued. On 16 December 2015, Judge Moss recorded in a Minute that no agreement was possible and the matters would require hearing. However, on

21 March 2016 a parenting order was made by consent. Ms Rovida would have the day-to-day care of the children with Mr Snow having responsibility for their care four days a fortnight and at agreed times during school holidays. The costs issue remained outstanding.

[9] On 26 July 2017 Judge Moss delivered her costs decision. Mr Snow was ordered to pay costs on all three proceedings. Indemnity costs were awarded on the surgery application. In a minute dated 17 August 2017, Judge Moss directed costs to be sealed in the sum of $34,479.64, being the amount that Ms Rovida had calculated and that Judge Moss accepted as correct. But on 23 August 2017, counsel for

Ms Rovida filed an interlocutory application to correct an error in the original quantification of costs and sought recision of the Minute dated 17 August 2017. Thus, as at 23 August 2017, following final determination of costs, Ms Rovida sought costs

_{in the sum of $41,106.64.}

³ [Rovida] v [Snow] [2015] NZFC 5767 [Substantive judgment].

⁴ At [6]–[7].

The appeal

Notice of appeal

[10] In his notice of appeal dated 9 August 2017 Mr Snow identifies a number of respects in which it is said Judge Moss erred in fact and in law:

(a) There was no jurisdiction to make a costs order in respect of the application for permission for the daughter to undertake surgery, as costs were determined in a consent order made on 26 June 2014 that recorded: “There is no issue as to costs”;

(b) The costs in respect of the balance of the proceedings was wrongly influenced by the Judge’s view that Mr Snow’s attitude towards that surgery was unreasonable, and this was an irrelevant consideration;

(c) Applying H v M,⁵ there was no proper basis for the award as the Judge held Mr Snow “appeared to genuinely believe his action was necessary in the best interests of his children” and that a costs order would “embitter the father”;

(d) The findings made in the course of Judge Moss’ decision as to costs cannot reasonably be reconciled with previous judicial determinations; the Judge’s concern as to the appropriateness of Ms Rovida’s application; Mr Snow’s evidence; the resolution of outstanding issues by a consent order; and Ms Rovida’s change of position on the first day of the hearing;

(e) Mr Snow’s without notice application was recognised at the time as having merit and should not have been regarded as outside the principle in R v S;⁶

_{(f) There was no factual basis for the Judge’s finding that Mr Snow was}

⁵ H v M [2015] NZHC 3244.

⁶ R v S [2003] NZHC 1010; [2004] NZFLR 207 (HC Full Court).

unreasonably trying to treat his daughter with alternative therapies and that his financial position is “substantially better” than Ms Rovida’s.

[11] Mr Snow seeks to have the costs order set aside and that no order for costs be made.

[12] I consider the appeal raises three primary issues for my determination:

(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 Mr Snow’s interlocutory application?

(c) Was there a proper basis for a costs order in respect of the parenting order litigation?

Approach to appeal

[13] The appeal is brought pursuant to s 143 of the Care of Children Act 2004 (the

Act), which confers a right of appeal against a final decision of the Family Court.

[14] In any proceedings under the Act the Court may make any order as to costs it thinks fit.⁷ A party who appeals a decision reached in the exercise of a discretion must show an error of law or principle; or that the Judge took into account an irrelevant consideration or failed to take account of a relevant consideration; or that the decision is plainly wrong.⁸ A decision may be plainly wrong where the lower court Judge has given excessive weight to some factor or patently inadequate weight to another.⁹

Principles applicable to costs decisions in the Family Court

[15] The starting point, when considering whether costs are to be awarded in care and access proceedings, is that costs do not follow the event in the usual way. This

⁷ Care of Children Act 2004, s 142(1).

⁸ Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

⁹ Alex Harvey Industries Ltd v Commissioner of Inland Revenue [2001] NZCA 356; (2001) 15 PRNZ 361 (CA) at [14].

follows from the fact that by virtue of s 4(1) of the Act the welfare and best interests of the child are the first and paramount consideration.¹⁰ As such the welfare and best interests of the child “may well legitimately override the normal rules as to costs”.¹¹

[16] In R v S Heath J undertook a review of case law concerning costs decisions made in the Family Court. Heath J articulated the following principles:¹²

(a) 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 Court.¹³

(b) In a case where the Family Court Judge has not made any determinations of credibility as between the parents, and where the case might properly be said to have been finely balanced, it is wrong as a matter of principle for costs automatically to follow the event.¹⁴

(c) However, the above observations are not intended to inhibit the Family Court’s “undoubted discretion” to award costs against an unsuccessful party where the party has unreasonably prolonged litigation or otherwise conducted themselves in a manner that has brought greater costs on another party or caused detriment to the welfare of the child. In each case, a balance must be struck.¹⁵

_{[17] I turn to the three categories of costs that Judge Moss awarded.}

¹⁰ H v A (2002) 22 FRNZ 447 (HC) at [17], approved in Hawthorne v Cox [2008] NZCA 146 at [16]

and [26].

¹¹ At [27].

¹² R v S, above n 6.

¹³ At [63].

¹⁴ At [64].

¹⁵ At [65].

Guardianship application to obtain order for surgery

[18] Judge Moss awarded Ms Rovida indemnity costs on the surgery application.¹⁶

Mr Snow’s notice of appeal, dated 9 August 2017,¹⁷ challenged this order on the basis that an earlier consent order recorded conditions including that there was no issue as to costs.

[19] As requested by the Judge in her costs judgment, the parties filed memoranda addressing costs applicable to each proceeding. The Judge intended to then calculate the final award.

[20] Ms Rovida accepted the parties had agreed there was no issue as to costs. Her recalculation excluded the component relating to the surgery application. The amount claimed as at 16 August 2017, the date of Ms Rennie’s memorandum, was $34,479.64. Judge Moss accepted as correct the position set out in Ms Rennie’s memorandum. On

17 August 2017 Judge Moss ordered judgment to be sealed in the sum of $34,479.64.

[21] As no element of the costs award relates to the surgery application this ground of appeal falls away.

Mr Snow’s interlocutory application to vary the parenting order

The interlocutory application

[22] These costs relate to the application for an interim parenting order, which

Mr Snow filed on 1 October 2014.¹⁸

[23] The first ground for Mr Snow’s application was founded in the psychologist’s report provided to the parties on 28 August 2014. In Dr Irwin’s clinical view a fundamental issue arose from the parties’ inability to cooperate in the parenting of the children. She determined the children’s physical needs were being met but not their emotional and educational needs. Dr Irwin expected the girls’ emotional and educational difficulties would intensify unless there was greater stability in their home

¹⁶ Costs decision, above n 1, at [24].

¹⁷ Set out above at [10].

¹⁸ See [5]–[6] above.

environment and said that these risks posed a serious threat to the girls’ long-term mental health.

[24] Judge Whitehead, who heard the application, considered the additional grounds relied on by Mr Snow formed no basis to change the care of the children, or were only unsubstantiated opinion evidence.

[25] Having heard from the parties, Judge Whitehead determined there was a “real need for this matter to be fully investigated, the parties examined and cross-examined and a determination made on all of the evidence rather than part of it”.¹⁹ The children had been in a co-parenting arrangement for five years and his opinion was that further delay in resolving the day-to-day care would not be detrimental to them.²⁰

[26] The Judge declined the application and directed timetabling the substantive proceeding towards an urgent hearing.

Costs decision

[27] Judge Moss adopted Keane J’s summary of the principles that are to guide the Family Court’s exercise of discretion in awarding costs.²¹ In H v M, Keane J noted the Court of Appeal’s view that any award must be consistent with the welfare of the child.²² When deciding whether to make a costs award, and in what amount, “it is necessary to assess what impact an award would have on the parents and their ability to care for the child and to work cooperatively in the child’s best interests”.²³ Costs tend to be reserved for cases where a parent pursues litigation unreasonably without regard to a child’s interests.²⁴ That conservative approach to costs in the care of children jurisdiction recognises that parents ought not to be inhibited by the risk of a

_{costs award from acting in the interests of their children.}²⁵

¹⁹ Interlocutory judgment, above n 2, at [48].

²⁰ At [48].

²¹ Costs decision, above n 1, at [2].

²² H v M, above n 5, at [8]–[10].

²³ At [9].

²⁴ At [10].

²⁵ At [10].

[28] It appeared to Judge Moss that Mr Snow’s motivation was “a positive one” in that he sought to assist the children at a time of significant stress for them in the wake of the mother’s house fire. But the application had the reverse effect. Judge Moss considered it portrayed such poor judgment it was not possible to consider the application was a genuine and responsible application brought in the best interests of the child.²⁶ The way in which Mr Snow conducted the litigation “added substantially to the climate of hostility and tension”, which had a “profoundly adverse” impact on the children.²⁷

Submissions on appeal

[29] Mr Andersen, counsel for Mr Snow, cited Thomson v Thomson in support of the proposition that where questions of costs were not reserved or fixed in the proceeding, and where the order has been drawn up and perfected, there is no power to recall the judgment and vary it by adding a new determination as to costs.²⁸ As

Mr Snow’s application was dismissed under s 139A(2) of the Act, and

Judge Whitehead did not reserve costs, the Court was functus officio.

[30] Mr Andersen disputed Judge Moss’ conclusion that Mr Snow’s application for day-to-day care demonstrated poor judgment and that it “sought to suspend” the children’s contact with Ms Rovida.

[31] On behalf of Ms Rovida, Ms Rennie submitted Thomson v Thomson does not assist Mr Snow. There was jurisdiction to award costs. Further, Mr Snow’s without notice application increased hostility between the parties when their inability to cooperate in parenting and their hostility towards each other already posed a serious risk to the children’s wellbeing.

²⁶ Costs decision, above n 1, at [12] citing R v S, above n 6, at [63].

²⁷ At [13].

²⁸ Thomson v Thomson (1992) 6 PRNZ 591 (HC).

Assessment

[32] When Judge Whitehead dismissed Mr Snow’s interlocutory application he did not address costs. But I do not agree that this fact makes the Family Court functus officio or that Judge Moss otherwise lacked jurisdiction to make a costs award.

[33] The District Court Rules address costs in interlocutory applications. Unless there are special reasons to the contrary, costs on an opposed interlocutory application must be fixed in accordance with the rules when the application is determined.²⁹ In exercising its discretionary power to award costs, however, the Family Court “may” apply the District Court Rules so far as applicable and “with all necessary modifications”.³⁰

[34] Thomson v Thomson does not assist Mr Snow. In that case the Family Court made a consent order allowing the respondent to take custody of the child. The order, which did not refer to costs, was sealed. Subsequently, the respondent applied for, and was awarded, costs. The costs order was quashed on appeal, Greig J holding that, because the judgment had been perfected without costs being reserved, there was no power to reactivate, or alter the judgment by adding a costs order. In 2011 the appellant advanced a similar argument in B v B.³¹ Rodney Hansen J regarded Thomson v Thomson as “immediately distinguishable”. The judgment in the proceeding before him had not been sealed.³² Nevertheless, in Hansen J’s view, the Family Court has jurisdiction to award costs whether or not the order has been sealed. Hansen J relied on two decisions of the High Court on appeal from the Environment Court as supporting his view.³³ I am satisfied Judge Moss had jurisdiction to determine the costs application.

[35] The next issue is whether there was error in the Judge’s approach. This being an appeal against the exercise of a discretion I must be satisfied Judge Moss made an

²⁹ District Court Rules 2014, r 14.8.

³⁰ Family Court Rules 2002, r 207(2).

³¹ B v B HC Dunedin CIV-2011-412-328, 26 September 2011.

³² At [40].

³³ At [41]–[42], referring to National Investment Trust v Christchurch City Council [2001] NZRMA

289 (HC) and Wilson v Selwyn District Council HC Christchurch CIV-2004-485-720,

15 December 2004.

error of law or principle, took into account irrelevant considerations, failed to take into account relevant considerations or was plainly wrong.³⁴ I am not so satisfied.

[36] While it appeared to Judge Moss that Mr Snow’s motivation in bringing the application was “positive”, in terms of intending to assist his children, that is not the end of the assessment for costs purposes. The Family Court retains a discretion 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.³⁵

[37] Judge Moss identified the ways in which Mr Snow’s application has prejudiced the welfare of his children. He had added substantially to the climate of hostility and tension, which had profoundly and adversely impacted on the children.³⁶ Earlier Judge Whitehead had emphasised the girls’ best interests and welfare required the parents to withdraw from the hostility and animosity between them.³⁷ And the psychologist had advised conflict between the parents was the paramount cause of harm to the children.³⁸

[38] In those circumstances, it was open to Judge Moss to conclude the application showed an “inability to act on the underpinning recommendation of Dr Irwin, in terms of addressing and ameliorating the effect of conflict. The application exacerbated the conflict.”³⁹ Mr Snow’s application exacerbated the hostility paralysing the parties. For example, Mr Snow brought evidence before Judge Whitehead of photos and allegations of deeply personal aspects of Ms Rovida’s life that, at best, had questionable relevance to his application.

[39] Finally, I note that Mr Snow required leave to commence his proceedings because they were “substantially similar” to proceedings that were subject to a final order within the past two years.⁴⁰ Yet, as Judge Whitehead observed, there was no

³⁴ Kacem v Bashir, above n 8, at [32].

³⁵ R v S, above n 6, at [65].

³⁶ Costs decision, above n 1, at [13].

³⁷ Interlocutory judgment, above n 2, at [45].

³⁸ Substantive judgment, above n 3, at [27].

³⁹ At [15].

⁴⁰ Care of Children Act, s 139A(1).

material change in circumstances.⁴¹ The parents’ animosity and hostile style of communication was not a change in the circumstances of the children nor of the parties.⁴²

[40] The appellant has not established Judge Moss erred in her approach. I am satisfied the award of costs on Mr Snow’s application was not only within jurisdiction but was available to the Judge in light of her analysis of all relevant matters and the applicable legal principles. This ground of appeal does not succeed.

Ms Rovida’s parenting order application

Costs decision

[41] Judge Moss referred to this proceeding as the “general litigation about the day-

to-day care of the children”.⁴³ Judge Moss observed the litigation “occupied years” and had “continued on and off”.⁴⁴ Each parent laid the blame for the conflict at the door of the other parent. Ultimately the outcome was agreed in favour of the mother’s application.⁴⁵

[42] Though the father appeared to “genuinely believe that his action was necessary in the best interests of [the] children” he was not prepared to let issues go and the litigation had a profoundly adverse impact on the children by imposing “significant legal costs” on the mother.⁴⁶ Mr Snow’s style of litigation was “confrontational and time consuming” and it did not appear “possible that he and his counsel could retain focus on the future interests of the children in preference to obtaining rulings” in favour of his position.⁴⁷ Mr Snow displayed a determination to be right that took priority over what needed to happen for the children. This was particularly so in relation to the surgery, but also transportation of the children to school, school events

_{and the children’s possessions.}⁴⁸

⁴¹ Interlocutory judgment, above n 2, at [43].

⁴² At [44].

⁴³ Costs decision, above n 1, at [1].

⁴⁴ At [14].

⁴⁵ At [19].

⁴⁶ At [21].

⁴⁷ At [20].

⁴⁸ At [20].

[43] The litigation sapped the constructive energy of the parents and severely worsened the quality of cooperation and communication between the parties.⁴⁹

[44] Mr Snow’s financial position was “substantially better” than Ms Rovida’s in terms of earnings and assets. The combined effect of running the litigation in an adverse way, and persisting with unnecessary issues, imposed a burden on the mother that had affected the girls’ wellbeing. For this reason there would be an award of costs.⁵⁰

Parties’ positions

[45] Mr Snow appeals the costs award in relation to the general litigation on the following bases:

(a) There was no specific finding Mr Snow defended the application unreasonably and without regard to the children’s interests. Such a finding is a necessary prerequisite to an award of costs.

(b) Both parents were criticised in the July 2015 judgment. The criticisms of Mr Snow cannot be justified in that he was successful in resisting

Ms Rovida’s application for change when his view was supported by the court appointed psychologist.

(c) The criticism that Mr Snow persisted with issues that were unnecessary is not based on findings in either judgment and is difficult to understand and likely relates to the Judge’s view of what occurred at mediation after the substantive judgment, which was not relevant to the determination of costs.

(d) Ms Rovida was not the successful party because her application was dismissed. Mr Snow was successful in resisting Ms Rovida’s application for a change to shared care.

⁴⁹ At [21].

⁵⁰ At [22].

(e) An irrelevant consideration was taken into account at [20], being the relevance of the surgery to the costs application and this wrongly influenced the general approach to costs.

(f) There is also a failure in the costs judgment to recognise that the judgment relates to events up to 24 July 2015 and the reference to December 2015 adds confusion.

[46] Ms Rovida points to the discrepancy in incomes. Mr Snow, it is said, is advantaged by being in a two-parent household. He earns over $205,000 whereas

Ms Rovida’s income is $54,000. Ms Rovida submitted payment of costs to her will assist her to pay legal fees from the 2015 hearing and enable her to use her limited income to continue to support the children. Conversely, liability for costs will not compromise Mr Snow’s ability to care for the girls nor, therefore, their interests while in his care.

[47] Counsel submitted costs should cover the period between 26 March 2014 and

12 April 2016, when the final consent order was made.

Assessment

[48] Typically, parties expect of a judgment that it will answer the questions before the court. That is the orthodox role of a judgment: to make factual findings, determine the issues and decide whether the applicant for relief has established her or his case. As it turned out, Judge Moss was not required to determine the applications before her: Ms Rovida’s 28 March 2014 application to have the children live in her day-to- day care and Mr Snow’s 1 October 2014 application for the children to live in his and Mrs Snow’s day-to-day care. As at the beginning of the hearing both parties risked losing the day-to-day care of their children.

[49] Following five days of evidence before Judge Moss the parents reached agreement. They agreed to continue their week-about arrangement. They agreed to commit to what Judge Moss described as the “major project” of addressing the accumulated hostility and hurt, which impeded their ability to cooperate, and they committed to practicing communication in regular formal court-based mediation over

12 months.⁵¹ That being the outcome, it was not necessary for Judge Moss to determine the care arrangements for the children.

[50] When parties reach an agreement in a court setting, it is to be expected that the judge will record the fact of the hearing and the outcome. Judge Moss delivered a comprehensive judgment running to 150 paragraphs because she considered it necessary to “record findings from the evidence to provide a staging post, and outcomes” from which the parents could build acceptance, tolerance, forgiveness, insight into their differences and appreciation of the strengths each household provides to the children.⁵² I do not accept that any criticism can reasonably be directed at the Judge on the basis the application before her had been effectively rendered moot and the substantive judgment was not therefore required to determine any issue. The Judge had a lengthy experience of the parties, including their ability to reach consensus yet depart from their agreed positions and return to litigation. In the circumstances, the judgment was not only well-intended but prudent.

[51] Judge Moss observed the many episodes of conflict that mattered to the adults, and which were covered to some degree in the evidence, but which she had not recorded in her judgment. She described the complexity of the detail, and the extensive focus in emails on one household or the other prevailing in their account, as presenting “an overwhelming task” to her as the presiding Judge.⁵³ Judge Moss said reflecting on the impact of the conflict on the children had been disturbing to her and observed that such a reaction is rare.

[52] The Judge acknowledged the accord the parents reached meant the matter “could simply have been resolved by consent” but “the extremity and complexity of the conflict require[d] a different approach”.⁵⁴ Counsel were invited to make submissions in relation to “the fields which should be covered in the judgment”.⁵⁵

⁵¹ Substantive judgment, above n 3, at [2].

⁵² At [3].

⁵³ At [6].

⁵⁴ At [25].

⁵⁵ At [25]

[53] Mr Snow’s appeal against the costs judgment is to be understood in this broader context.

[54] What were essentially cross-applications for parenting orders were disposed of by consent with the status quo continuing until, in March 2016, Ms Rovida was granted day-to-day care by consent.

[55] The substantive judgment levels criticism at both parents. The children’s safety was put at risk by the accumulation of “intense focus by each parent on their own practice or point of view prevailing”.⁵⁶ All three adults compromised the children’s welfare.⁵⁷ Both parents felt intensely about their own viewpoint about what the children needed and argument in court contributed to the polarity between the parties.⁵⁸

[56] Mr Andersen correctly submits there is no specific finding in the substantive judgment to the effect Mr Snow defended the proceeding unreasonably and against the interest of the children. In my view it is sufficient that, in her costs decision, Judge Moss acknowledged an award of costs should be reserved for cases where a parent pursues litigation unreasonably without regard to a child’s interests.⁵⁹

Judge Moss concluded, for the reasons she set out, that Mr Snow had pursued litigation

unreasonably. I see no merit in the complaint that findings and criticisms of the way in which a party conducted litigation are made for the first time in the context of a costs award when they should have been made in the substantive judgment. Such criticisms and findings frequently become relevant only at the point where costs are in issue.

[57] Mr Andersen submitted that the Judge’s criticisms of Mr Snow for persisting with issues that were unnecessary is not based on findings in either judgment and is difficult to understand. Counsel submitted it was likely that the criticisms related to the Judge’s view of what occurred at mediation. No basis is offered for asserting the Judge incorrectly relied on considerations that arose after the hearing as opposed to

⁵⁶ At [7].

⁵⁷ At [9].

⁵⁸ At [29].

⁵⁹ Costs decision, above n 1, at [2].

the impressions she formed before and during the hearing. I do not consider this ground of appeal has merit.

[58] Nor do I accept Judge Moss’ decision was inappropriately influenced by her response to the surgery application (in respect of which she had been prepared to award indemnity costs). The surgery application was simply a “particular” instance of the Judge’s view that “the father’s determination to be right took priority” over what was needed for the children.⁶⁰ The Judge listed a number of issues in respect of which she considered Mr Snow took an unreasonable approach, including the surgery application.

[59] Turning to the financial position of the parties, Mr Andersen contended there was no basis for Judge Moss’ conclusion that their positions were significantly different. The evidence suggests otherwise. Mr Snow was cross-examined about his income. Ms Rovida had estimated Mr Snow’s income to be around $207,000 on the basis of the level at which he was paying child support. By comparison Ms Rovida’s income was around $54,000. Mr Snow was not compelled to provide details of his income to the Court. Mr Snow, however, was asked if he could see that when he earned around $200,000 and his wife earned approximately $150,000, asking

Ms Rovida to pay for anything extra was an issue for her given she earned a seventh of Mr Snow’s household income. Mr Snow did not refute that but answered: “Wasn’t that part of the reason why we pay child support because it takes into account some of those things?”

[60] Even accepting Mr Snow’s income to be around $130,000 (the figure he “thought” it to be — “something like that”) the difference in household wealth is such that it was relevant to the calculation of costs. The welfare and interests of the children are to be assessed not only by reference to emotional needs. An economic impact on them is also a relevant consideration.⁶¹ The Judge did not err in taking account of the significant difference in relative wealth between the father’s and mother’s households. It is a factor relevant to the children’s welfare and interests and it supported, along with the other factors justifying costs, an award in favour of the mother.

⁶⁰ At [20].

⁶¹ H v A, above 10, at [17].

[61] In relation to the period for which the costs award applies, on 23 August 2017 counsel for Ms Rovida filed an interlocutory application in the Family Court seeking amendment of the costs order on the basis there had been a failure to include in the amended calculation, costs incurred post 24 June 2015.⁶² Mr Snow filed a notice of opposition on 6 October 2017. That application is yet to be determined.

Result

[62] Given Judge Moss’ expertise and the particular advantage she had of a lengthy engagement with the parties over several years, in court proceedings and mediations, I would hesitate to depart from Her Honour’s findings and conclusion. But in any event, the appellant has not established Judge Moss erred in the exercise of her discretion to award costs, nor the quantum awarded.

_{[63] The appeal is dismissed.}

_{Karen Clark J}

Solicitors:

Hutt City Law Ltd, Petone for Appellant

McWilliam Rennie, Wellington for Respondent

⁶² See [9] above.