Palmer v Holm

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2014-404-000174 [2015] NZHC 226

IN THE MATTER
of an appeal against a decision of Judge

S J Maude made in the North Shore
Family Court on 23 December 2013

BETWEEN

L PALMER Appellant

AND

C P HOLM Respondent

On the papers

Counsel:

A E Ashmore for the Appellant
S D Cummings for the Respondent

Judgment:

19 February 2015

COSTS JUDGMENT OF GILBERT J

This judgment is delivered by me on 19 February 2015 at 4.30pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

PALMER v HOLM [2015] NZHC 226 [19 February 2015]

[1] In a judgment delivered on 18 September 2014 I dismissed an appeal from a decision of the Family Court at North Shore severely restricting the appellant’s contact with his alienated nine year old son.1 This judgment deals with the costs of that appeal.

[2] The respondent seeks increased costs pursuant to r 14.6 of the High Court Rules on the basis that the appeal lacked merit and the appellant contributed unnecessarily to the time and expense of the proceeding. The appellant submits that there should be no order as to costs in this case. Alternatively, he submits that costs should be reduced because the respondent contributed unnecessarily to the time and expense of the proceeding by filing voluminous submissions that did not comply with the rules.

Should increased costs be awarded?

[3] This is a particularly difficult case involving a child who is alienated from his father. The Family Court Judge found that both parents must take responsibility for this. The Judge was faced with having to make a very difficult decision. Having considered the matter very carefully, the Judge decided that the best course was to leave the child in the sole care of the respondent and severely limit ongoing contact with the appellant, rather than persevere with attempts at ongoing contact or place the child in the appellant’s sole care. I can understand the appellant’s concern about this decision and the reasons he considered an appeal should be pursued. I do not accept the respondent’s submission that the appeal was unjustified or without merit.

[4] The appeal necessarily required a meticulous examination of all relevant background facts and scrutiny of the evidence including the expert reports. Counsel on both sides reviewed this material in considerable detail in their submissions, as was necessary. In my view, it would be quite inappropriate to make an increased costs award against the appellant in this case. He should not be penalised for pursuing the appeal despite its inherent difficulty or for the manner in which it was pursued.

Should costs be decreased?

[5] The appellant submits that the respondent contributed unnecessarily to the time and expense of the proceeding by filing lengthy submissions that did not comply with the rules. The submissions initially filed by the respondent were almost
70 pages long. After the appellant complained, the respondent filed replacement submissions.

[6] As I have already noted, the issues raised on the appeal meant that there was no way of avoiding a careful review of the lengthy background circumstances, about which there was considerable dispute between the parties. Extensive submissions were filed on both sides. I do not consider that the costs to which the respondent might otherwise be entitled should be reduced on account of the length of her submissions.

Should there be an award of costs?

[7] Costs are discretionary. In a case such as the present where the interests of the child are paramount, costs will not necessarily, or even generally, follow the event.2 This is because it would be contrary to public policy to discourage meritorious appeals pursued in the child’s interest by the imposition of adverse costs awards. Such appeals are not pursued in the appellant’s own interest, but for the benefit of the child.

[8] This is such a case. The issues were extremely difficult and there was no obvious solution; it required choosing the least harmful course. The appeal had merit and the appellant was justified in pursuing it for the long term benefit of his son. There was nothing about the manner in which the appellant pursued the appeal that would require an award of costs.

[9] I consider that in the particular circumstances of this case, the costs of the appeal should lie where they fall.

Result

[10] I make no order for costs.

M A Gilbert J

The appeal in Palmer v Holm was brought before the Auckland Registry of the High Court of New Zealand. The appellant, L Palmer, sought to overturn a decision made by Judge S J Maude in the North Shore Family Court on 23 December 2013, which severely limited the appellant's contact with his nine-year-old son, who was alienated from him. The appeal was dismissed on 18 September 2014, and this judgment addresses the costs associated with the appeal. The respondent, C P Holm, argued for increased costs under r 14.6 of the High Court Rules, asserting that the appeal lacked merit and the appellant unnecessarily contributed to the time and expense of the proceedings. The appellant, however, opposed any order as to costs, suggesting instead that costs should be reduced due to the respondent's non-compliant voluminous submissions.

The court considered the difficult nature of the case, acknowledging the challenging decision faced by the Family Court Judge in managing the child's alienation from the appellant. The court found that the appeal, despite its difficulty and inherent challenges, was justified and had merit. The appellant's decision to pursue the appeal was for the benefit of his son, and thus, it was not appropriate to penalize him for this. The court did not accept the respondent's argument that the appeal was unjustified or without merit. The court scrutinized the extensive background facts and evidence, including expert reports, as part of the meticulous examination required by the appeal.

The court also examined whether costs should be reduced due to the respondent's lengthy and non-compliant submissions. Despite the appellant's complaint about the length and compliance of the submissions, the court determined that the nature of the appeal necessitated a detailed review of the background circumstances, which were heavily disputed. The court found that the respondent's extensive submissions were justified given the complex issues involved and thus, no reduction in costs should be made. Given the paramount interests of the child and the merit of the appeal, the court concluded that it would be inappropriate to award increased costs against the appellant. Costs in such cases, where the appeal is pursued for the benefit of the child, are discretionary, and in this instance, the court decided that the costs should lie where they fall.

In conclusion, the court made no order for costs in this matter. The court recognized the difficulty of the case and the legitimate reasons for the appellant to pursue the appeal. The court emphasized that it would be contrary to public policy to discourage such meritorious appeals by imposing adverse costs awards. Therefore, the costs of the appeal were left to lie where they fell.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

On the papers
Counsel:	A E Ashmore for the Appellant S D Cummings for the Respondent
Judgment:	19 February 2015