JANSEN v JANSEN (COSTS) [2022] NZHC 3222

JANSEN v JANSEN (COSTS) [2022] NZHC 3222 [2 December 2022]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2022-485-413[2022] NZHC 3222UNDER the Care of Children Act 2004BETWEEN CHARLOTTE JANSENAppellantAND HENRY JANSENRespondentOn the papers:Counsel: M A Twentyman and G E Dowd for AppellantRespondent in personJ l Wademan, Lawyer for the ChildrenJudgment: 2 December 2022JUDGMENT OF CHURCHMAN J[COSTS][1] On 27 October 2022, I dismissed an appeal by Mrs Jansen against a decisionof the Family Court regarding shared care arrangements for her sons Steve (aged five)and Bruce (aged two), with their father.1[2] The remaining issue between the parties is whether they should be required tomake a contribution to the costs of Ms Wademan, who was appointed as lawyer forthe children.1 Jansen v Jansen [2022] NZHC 2799; and Jansen v Jansen [2022] NZFC 6937.Positions of the partiesMrs Jansen[3] Mrs Jansen submits that she pursued the appeal with a genuine belief that shewas acting in the children's best interests. Mrs Jansen was legally aided in the FamilyCourt because she is currently a beneficiary. However, on appeal, her father has paidfor private representation.[4] Mrs Jansen submits that any requirement to contribute to costs will impact onher ability to provide for Steve and Bruce. She says that this is not in their bestinterests. She says that this would cause serious hardship, and that therefore sheshould be exempt from a contribution to Ms Wademan's costs.Mr Jansen[5] Mr Jansen has been self-represented throughout the proceedings. He says thathe has done this "due to the prohibitive costs of legal representation", rather thanthrough any belief that he did not require legal assistance. He says that Mrs Jansen'sconduct throughout the proceedings have caused him considerable stress, and that ithas been difficult for him to respond to her allegations. He says that he remainedwilling to use other forms of dispute resolution throughout the proceedings, and thatit is Mrs Jansen's pursuit of the appeal that has created costs.[6] Mr Jansen submits that:Due to the excessive levels of child support I have had to pay (because of theapparent disparity in our respective incomes, and very little of which has madeit to the children), I have struggled to get ahead, and therefore it would causeme undue hardship to have to pay half of the costs for Counsel for Children,with a subsequent direct impact on the children while they are in my care.[7] Mr Jansen requests that he is exempted from contributing to Ms Wademan'scosts.Ms Wademan[8] Ms Wademan has provided a memorandum showing that her costs were $4,584(excluding GST).Discussion[9] Where a lawyer is appointed for the purpose of representing the interests of achild or children, the Court is required to make an order pursuant to s 135A of the Careof Children Act 2004 (the Act).2 An order pursuant to s 135A requires the parties toreimburse the Crown two-thirds of the amount paid to the lawyer representing thechild.3 Each party against whom an order is made must pay an equal share4, unlessthat would be inappropriate.5[10] However, the Court may decline to make an order against a party if satisfiedthat the order would cause serious hardship to the party or to a dependent child of theparty.6 Serious hardship is defined by the Act in the following terms:serious hardship, in relation to a party or a dependent child of a party,—(a) includes significant financial difficulties that arise because of—(i) the party's inability to meet minimum living expensesaccording to normal community standards; or(ii) the cost of medical treatment for an illness or injury of theparty or a dependent child of the party; or(iii) a serious illness suffered by the party or by a dependent childof the party; or(iv) the cost of education for a dependent child of the party:(b) does not include significant financial difficulties that arise because—(i) the social activities and entertainment of the party or those ofa dependent child of the party may be limited; or2 Care of Children Act 2004, s 131(4)3 Section 135A(1); and Family Courts (Prescribed Proportion of Professionals' Costs) Regulations2014, cl 4.4 Section 135A(3).5 Section 135A(4).6 Section 135A(2).(ii) the party is unable to afford goods or services that areexpensive or of a high quality or standard according to normalcommunity standards.[11] The issue in this matter is therefore whether either Mr or Mrs Jansen haveestablished that serious hardship would result if they were each required to pay a thirdof Ms Wademan's total costs. If required to make a contribution, they would eachhave to pay $1,528. As in relation to all matters heard pursuant to the Act, the welfareand best interest of the children must be the first and paramount consideration.[12] As stated by Katz J:7Parliament has provided no definition of "normal community standards" orwhat evidence the court can obtain to assess what these standards are.8Median or average household income has been used as an indicator.9 JudgeCoyle in Hodson v Ewart thought that normal community standards must takeinto account housing costs (mortgage or rent payments), food, clothing,power, vehicle expenses and the cost of other basic necessities of life.10Educational costs for dependent children can also be seen as a necessity.[13] I do not have any information from the parties as to their respective income oroutgoings, apart from Mrs Jansen's indication that she is currently a beneficiary, andthat Mr Jansen is already paying or has paid significant child support. There is noindication as to the parties' assets or debts.[14] I acknowledge that the fact that a person's main source of income is a benefitis an indicator of serious hardship.11 Mrs Jansen has sought family support in order tobe represented on appeal, having received legal aid in the Family Court.[15] Mr Jansen has remained unrepresented throughout the proceedings because ofthe cost of obtaining representation, although I am unaware as to whether he wouldhave qualified for legal aid. He currently has day to day care of Steve and Bruce.7 M v B [2022] NZHC 2605 at [26].8 Hodson v Ewart [2014] NZFC 9342 at [25]. See also Family Law – Child Law (online loose-leafed, Thomson Reuters) at [CC135A.04].9 See for example Moore v Rayne [2014] NZFC 8876; and Mene v Dyson [2014] NZFC 8613.10 Hodson v Ewart [2014] NZFC 9342 at [26].11 Penfold v Clarke [2015] NZFC 1318.[16] Against that is the factor that a contribution of $1,528 each is a relatively smallorder for costs in comparison to other High Court appeals, and also that he hasacknowledged a large disparity in his income relative to Mrs Jansen.[17] On balance, I am satisfied that to make an order for either party to contributeto reimburse the Crown for Ms Wademan's costs would cause serious hardship to themand/or their dependent children.Result[18] I decline to order any of the parties to reimburse the Crown for the costs oflawyer for the child, on the basis that doing so would cause serious hardship to eachof them and/or their dependent children.Churchman JSolicitors:Morrison Kent, Wellington for AppellantJ L Wademan, Wellington, Lawyer for ChildrenCopy to: The Respondent