DAVIS v LEVERS [2013] NZHC 2915

DAVIS v LEVERS [2013] NZHC 2915 [5 November 2013]ANONYMISED VERSION AVAILABLE FOR PUBLICATION IN THISFORM. THE NAMES OF PERSONS INVOLVED ARE FICTITIOUS.SEARCH, COPYING AND INSPECTION OF COURT FILE PROHIBITEDWITHOUT LEAVE OF A JUDGE.IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2013-404-3707[2013] NZHC 2915IN THE MATTER of the Care of Children Act 2004BETWEEN LEVERSAppellantAND DAVISRespondentHearing: 31 October 2013Counsel: A Manuel for AppellantJ D Noble for RespondentD Sim, Lawyer for ChildJudgment: 5 November 2013JUDGMENT OF HEATH JThis judgment was delivered by me on 5 November 2013 at 4.30pm pursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Rogers & Rutherford, AucklandBoyle Mathieson, AucklandCounsel:A Manuel, AucklandD Sim, AucklandThe appeal1[1] Ms Levers appeals against an order for costs, in the sum of $5,425, made by Judge Jan Walker, in the Family Court at Auckland, on 10 July 2013.2 The order wasmade in consequence of the Court's earlier decision to dismiss Ms Levers'application to strike out a parenting proceeding brought by Mr Davis.3Background to judgment under appeal(a) Introductory comments[2] Ms Levers and Mr Davis entered into a de facto relationship in or about September 2001. They separated on 17 July 2004, before their daughter Susan was born some two months prematurely on 27 July 2004. Litigation between the parents started in September 2005, and has continued unabated. Susan is now nine years old.[3] Prior to their separation in July 2004, the relationship between Ms Levers and Mr Davis was fractious and volatile. It included occasions of domestic violence perpetrated by Mr Davis on Ms Levers.4[4] On 2 July 2007, Ms Levers applied for a protection order against Mr Davis. Initially, her application was resolved on the basis of undertakings. Later, on 21 September 2007, an order was made, following an incident that was in breach of the undertakings.1 The names used in this judgment are fictitious and adopt the names that Judge de Jong permitted for reporting purposes, in a judgment given on 28 April 2011. A copy of this judgment will be made available to the parties, together with a second version setting out their correct names. The latter judgment will be subject to suppression orders. The citations to the Family Court'sdecisions use the same names.2 Levers v Davis [2013] NZFC 1091 (Costs) at para [46].3 Levers v Davis [2013] NZFC 1091 (Substantive), at para [163].4 See para [6](a) and [9] below.(b) The Family Court judgment of 28 April 2011[5] Mr Davis applied for parenting orders in January 2007. On 8 August 2007, by consent, Ms Levers was granted day-to-day care of Susan. After that, Mr Davis sought increased contact. His applications for contact, appointment as an additional guardian5 and discharge of the existing protection order came before Judge de Jong. The hearing took place over three days, commencing on 21 December 2009 in the Family Court at Auckland. It was adjourned part-heard but did not resume until early 2011. In directions issued on 2 August 2010, Judge de Jong explained the reasons for that lengthy delay:6[10] I presided over a hearing in December last year that was intended to finalise all matters and, in particular, address substantive issues. I heard evidence over three days about how the father wanted more contact and how he wanted to discharge his protection order. As far as I am concerned the s 60 findings I made on 1 July 2008 are no less relevant after hearing three days of evidence in December but the prospect of the parties being able to parent together harmoniously is an even more distant prospect.[11] The December hearing was extraordinary in that a Court appointed psychologist did not ascertain the views of a child despite having been directed by more than one Judge to do exactly that. Her evidence was that she ascertain the child's views by means other than speaking to the childdirectly about them.[12] I was left with no alternative but to adjourn the hearing so that part of the assessment process could be undertaken. The parties were gutted, as was the Court, by that revelation. I have never experienced such an event in my legal career.[13] I had intended to leave remarks about that psychologist and her work until I release my final decision but I think it is important at this juncture for me to have made the above remarks now because it has had a profound effect, not only on each of the parties but more particularly Susan. It has prolonged the proceedings in a way that no one contemplated or wanted.[14] On 23 December 2009 I released my terms of reference (for thepurpose of ascertaining and assessing Susan's views) and Ms Cameron hassince been appointed by the Court to undertake that assessment. I directed on 23 December 2009, among other things, a s 133 report to ascertainSusan's views about(a) her relationship with each parent and maternal grandparents and5 Because Susan was born after her parents' relationship ended, Ms Levers, is her sole legal guardian: Care of Children Act 2004, s 17(3).6 Davis v Levers FC Auckland FAM-2005-004-2355, 2 August 2010 (Directions of Judge de Jong).(b) her care and (current and proposed) contact arrangements.[15] Seven months have now passed and we are no closer to getting that report. While there are some underlying and justifiable concerns I am concerned that there has also been an unjustifiable standoff.[6] The hearing was completed over a further two days, in late January 2011. Judge de Jong delivered a judgment on 28 April 2011.7 In the course of dismissing the applications for contact and discharge of the protection order, and granting Mr Davis leave to withdraw his application to be appointed as an additional guardian, the Judge made some damning findings against Mr Davis. In particular:(a) Judge de Jong was satisfied, on a balance of probabilities, that physical violence occurred, in the course of what he described as a"dysfunctional" relationship. Among other things he accepted Ms Levers' evidence of one serious incident of physical violence that tookplace in the couple's bedroom in either 2003 or 2004. In the Judge's words, the "father was so angry that he is more likely than not to have pinned the mother down on the bed with his hand on her neck". Judgede Jong accepted Ms Levers' evidence that she thought she was "going to die".8(b) The Judge found that the "relationship" between the parents, at the time of the hearings, continued "to be dysfunctional and conflicted".9He considered that the degree of tension and conflict between theparents was "aggravating the condition of an already vulnerable and deeply troubled child". While satisfied that there was no future risk of physical harm, the Judge found that "there [was] a risk of ongoing psychological or emotional harm" from Mr Davis.10[7] Judge de Jong also found "that Susan's long term welfare and interests [were] best met if contact is stopped all together". That, the experienced Family Court7 Davis v Levers FC Auckland FAM-2005-004-2355, 28 April 2011.8 Ibid, at paras [22](b), [28] and [29](a).9 Ibid, at para [29](b).10 Ibid, at paras [31] and [32].Judge acknowledged, was an "extreme conclusion". He expressed his reasons forreaching that view as follows:[63] This Court has come to the conclusion that Susan's long termwelfare and interests are best met if contact is stopped altogether. In no particular order the main reasons for reaching this extreme conclusion are as follows:(a) Susan can no longer cope with contact or a relationship with her father. She has been exposed to parental conflict over many years which is having a highly detrimental effect on her. Susan has heard arguments between her father and important maternal family members. She knows there are tensions between the two sides and that they do not like one another. She is displaying signs of chronic stress with significant somatic symptoms and high levels of anxiety. Susan is therefore a vulnerable child. She is also less resilient than many because she suffers from a mild form of ADD, may have dyslexia and has mixed learning abilities which are adversely affecting her learning.(b) Despite long term contact arrangements Susan is resistant to having contact with her father in advance of visits and is anxious about seeing her father. In what the father described as a typical contact visit, this Court accepts Ms Cameron assessed Susan to exhibit resistant and distancing behaviour with her father in a way that suggests he lacks the skills and insights to engage with Susan.(c) Susan enjoys a strong attachment to her mother but this is at risk of being undermined due to the level of stress and anxiety in her life. That has been illustrated by uncharacteristically negative remarks Susan made to the psychologist about the maternal family.(d) While the father is of the view he has a strong attachment to Susan, this Court accepts the evidence of Ms Cameron that despite long term contact arrangements there is no formal attachment.(e) The mother is highly anxious and stressed. She was viewed by the first psychologist in this way and that remains a feature of more recent assessments and observations. The mother accepts she suffers from anxiety to an extent that affects Susan. Ongoing conflict and stress between the parents (and maternal grandparents) adds to themother's anxiety and continues to affect Susan.(f) This Court is not confident these parents have the energy, desire, ability or finances to affect a level of change necessary in this case. Real and appreciable change requires a full acceptance and commitment to long term intensive and extensive therapy to address their respective issues. That is not present in this case despite what the parents say. They have had plenty of times to demonstrate a serious and determined approach to address their issues but this has not happened in a meaningful way.(g) Of primary concern to this Court is the need to protect Susan (s 5(e)). She has been exposed to conflict since she was in hermother's womb. This Court has been actively involved with thisfamily for enough years to know that reducing contact while the parties (and Susan) attend therapy will not work for Susan. That is because there are major issues affecting each parent and Susan.[8] Next, the Judge considered whether the protection order should be discharged. That turned on whether the original order, made in 2007, remained"necessary".11 The Judge's view on this issue was informed by his earlier findingsabout the extent of pre-separation physical violence, and continuing psychological abuse.[9] In explaining his reasons for dismissing the application to discharge the protection order, Judge de Jong, while acknowledging that Mr Davis had attended a"stopping violence" programme and claimed to have gained "good insights" since,12said:[94] Despite claiming to understand the severity of the mother's anxietyand the effect of his behaviour on her (and Susan) there have been a number of incidents of psychological abuse since the 2007 order. The most recent of these was about three months before the 2011 hearing. Whatever view istaken of what happened on that occasion, the father's disparaging referenceto the mother and his angry threat to call the police left the mother distressed.[95] That incident illustrates the father's lack of insight and the way heminimises the effect of his behaviour. He told this Court no one would haveblinked an eye lid had he behaved that way in the presence of 'adults". Thatis a telling remark.[96] When viewed in isolation some of the incidents may appear to be minor or trivial but they form an irregular pattern contemplated by s 14(3) and Surrey. The father continues to struggle to understand the mother does not want anything to do with him. He related to this Court an occasion when he saw the mother walking a dog and expressed surprise when faced with themother's chilling response to his suggestion that he would like to get to knowthe dog.[97] All these events have occurred in the context of contact changeover or connected in some way with Susan. While it is tempting to discharge the 2007 order, along with his parenting application, the reality is that there is a strong chance the parties will see one another because they live and shop in close proximity to one another. If they lived in different parts of Auckland with little prospect of seeing one another the outcome of this part of the proceedings might well be different.11 Generally, see Surrey v Surrey [2010] 2 NZLR 581 (CA).12 Davis v Levers FC Auckland FAM-2005-004-2355, 14 April 2011 at para [63].[98] However, the past history of this file is that the high level of themother's problems with anxiety, and the father's negative and fixed attitudetowards her, mean the father is very likely to behave in a psychologically abusive way that will significantly impact on the mother as it has in the past. If Susan is present, she is likely to be detrimentally affected as well.(Emphasis added)[10] In October 2007, Ms Levers had sought costs on her successful protection order application. Mr Davis contended that they should be determined later, in the context of the proceedings as a whole. The Court adopted Mr Davis's proposal. Theprotection order costs were for determination before Judge de Jong, along with costs on the applications that he had heard. Even though Ms Levers had succeeded on all of the applications with which the Family Court had dealt, Judge de Jong declined to make any order for costs in her favour. He said:[100] Given the history, nature and outcome of these proceedings this is one of those cases where each party should be left to bear their own legal expenses. For that reason no order is made as to costs.(c) Mr Davis's subsequent application[11] Notwithstanding the terms in which Judge de Jong expressed his conclusions, on 2 November 2011, (just over six months after the judgment was delivered), Mr Davis made a further application to the Family Court for parenting orders. He didnot challenge Ms Levers' status as the parent to have day-to-day care of Susan. Rather, he sought restoration of contact between Susan and himself, on a supervised basis.[12] Mr Davis' application provoked an angry response from Ms Levers, in theform of an application to strike it out. The strike out application was premised onMs Levers' view that Mr Davis's application was premature, and that it could impactadversely on the "considerable progress [that Susan had made] since contact [had] been suspended". The fact that the application was made only some six months afterJudge de Jong had refused to make any contact orders appears to have been thetrigger for Ms Levers' response. That seems clear enough from the nature of theJudge's concerns about the possibility of continuing psychological abuse, theprimary reason given for not discharging the protection order.13(d) The strike out judgment of 13 February 2013[13] I wish to make two comments about the way in which the strike out application was dealt with in the Family Court. I emphasise that both are made with the benefit of hindsight and in ignorance of what I suspect were practical problems caused by the large volume of work with which Family Court Judges in Auckland are required to deal. My observations are not intended to be critical of any of the Judges involved in this proceeding, and should not be read in that way. They are:(a) First, it would have been preferable if Mr Davis's fresh applicationhad initially been referred to Judge de Jong (assuming he had been available) for directions. He was familiar with all of the issues and, at a conference held promptly after filing of the application, that Judge might have been able to determine whether there was merit in MrDavis's application proceeding at that time.(b) Second, by the time that the strike out application came on for hearing, it was stale. Over one year had passed since it was first filed. By that time, what might previously have been seen legitimately as a premature application was always going to be viewed in a different light. That raises the question whether counsel should have asked the Court to allocate a date for the substantive application, rather than the strike out. As things have transpired, the substantive application still requires determination, and the stress caused by the litigation continues for both parents and, more importantly, Susan.[14] In a judgment delivered on 13 February 2013,14 Judge Walker dismissed MsLevers' strike out application. In respect of costs she said:[163] This is not a frivolous or vexatious application, nor one that abuses the process of the Court. This appears to be a reasonable attempt by the13 See para [9] above.14 Levers v Davis [2013] NZFC 1091 (Substantive).father to have a greater involvement in his child's life after an extendedperiod of time and engagement in therapy, and as such, ought not to be struck out. The cases to which s 140(b) [the strike out provision of the Act] and the Family Court Rules are directed are those situations, unlike the current case, where there is no reasonable basis or chance of success. This is not a situation where a litigious parent seeks to modify a determination forpersonal reasons unrelated to their child's welfare.Orders...(iii) In respect of costs, in the event the parties are not able to reach agreement, submissions are to be filed within 14 days pursuant to Schedule 2B.[15] Much of the Family Court Judge's decision was taken up in outlining the submissions and relevant evidence. The Judge's reasons for dismissing the strike out application appear to have been these:Discussion[128] Counsel extensively canvassed matters relating to Susan's welfareand best interests.[129] While the father and Lawyer for the Child viewed it as an ongoing examination, taking into account the serious concerns of Judge de Jong, themother's position is essentially to see matters for Susan in light of the events prior to Judge de Jong's decision.[130] While cognisant of the vulnerability of Susan and recognising that at the time of time when Judge de Jong made his decision the stress levels for Susan were unacceptable, there has now, as a consequence of that decisionbeen, it is hoped, a genuine change in the father's position to focus on Susanand her future.[131] The mother too has taken on board in a positive manner a number of the findings of Judge de Jong.[132] As to the benefits for Susan, both s 5(b) and [the Court-appointed psychologist] Ms Cameron identify the importance of an ongoing relationship with both parents. This is not merely for the 'here and now' but also for the future. Susan's welfare and best interests must be seen as an on- going continuum. It should take into account her personal attributes, her development and need for psychological safety.[133] Accordingly, I do not find that the father's application is clearly contrary to Susan's welfare and best interests. A significant period of time has passed since contact last occurred, and since then Susan's "emotional wellbeing" appears to have improved. There has also been a material change in circumstances, even disregarding the length of time in the interim, with the father and mother both participating in meaningful therapy. Theseproceedings cannot be viewed as clearly contrary to Susan's wellbeingwithout any further assessment by the Court as part of an ongoing examination into her welfare....Conclusion[160] Upon the assessment of the father's application for contact, it mustbe said that there is merit in its progression before the court, and to the possibility of Susan re-establishing contact with her father. It will be for the presiding Judge, to determine the success of this application.[161] However, at this stage there are no compelling reasons why the application should be struck out, denying Mr Davis the right to have his application considered.[162] The continuance of the proceeding is not clearly contrary to Susan'swelfare and best interests pursuant to s 140 or the paramount consideration under s 4 of the Act. The time that has lapsed since the making of the last order has given rise to positive steps for Susan and her parents which suggest that an assessment of the situation is required. In fact, it may be in her best interests to have an ongoing relationship with both parents Any decision to re-establish contact will require scrutiny of Susan's welfare and best interestsas well as her views.(e) The costs judgment of 10 July 2013[16] No submissions were made within 14 days of delivery of the 13 February 2013 judgment, as contemplated by Judge Walker's orders.15 Following some(unsuccessful) discussions between counsel to resolve costs, Mr Davis's (then)counsel filed a memorandum in support of the costs application on 15 May 2013. A perusal of that memorandum indicates that counsel believed that the Judge had already made an order for costs, and was only requesting submissions as to quantum.[17] From the way in which the Judge later addressed the costs application, it is clear that she did not intend to make an order in her first judgment. While I agreewith Mr Noble, for Mr Davis, that his former counsel's approach was not an unreasonable interpretation of the Judge Walker's order,16 it is clear from the costs judgment that she considered it was necessary to determine first whether a costs order was justified.1715 Levers v Davis [2013] NZFC 1091 (Costs) para [163](c) set out at para [14] above.16 Because of its reference to "Schedule 2B", which may have created an impression that an orderhad been made: see para [14] above.17 Ibid, at para [30].[18] Ms Manuel, for Ms Levers, elected not to file any memorandum inopposition to the one filed by Mr Davis's former counsel. She told me that was because she expected some "cue" from the Court (having regard to the late filing of the memorandum), or for it to be raised at a subsequent judicial conference. In doing so, she was hoping to avoid further cost to Ms Levers. Ms Manuel pointed to r 132(1) of the Family Courts Rules 2002, which indicates the need for a discrete application to be made to extend the time to take any step in the proceeding; whether the initial period is fixed by the Rules or by judicial order.18[19] In fact, no inquiry was made by the Court as to whether Ms Levers intended to oppose the order sought. Judge Walker proceeded to deal with the question of costs without submissions from Ms Manuel. In doing so, the Judge effectively extended time of her own volition. That approach has raised questions about whether the principles of natural justice have been breached, in relation to a failure to ensure that Ms Levers was heard on the application; or, at least, had made an informed decision not to participate.19[20] Because Mr Davis's former counsel believed that liability for costs had beendetermined, she did not address the principles to be applied when costs orders are made in care of children proceedings. Nor was the Judge referred to relevant appellate authority.20[21] After referring to r 207 of the Family Courts Rules 200221 (the jurisdictional basis on which orders for costs may be made by a Family Court) and a judgment of Judge Emma Smith in RJB v RAG,22 Judge Walker set out her view of applicable principles as follows:[9] Judge E Smith emphasised the Family Court's discretion to awardcosts, and considered that in assessing whether to exercise this discretion, the18 Family Courts Rules 2002, r 132(1).19 By way of analogy, see Skelton v Family Court at Hamilton [2007] 3 NZLR 368 (HC) at paras [72]–[74] and [85]–[91].20 For example, G v Cox [2008] NZCA 134 (on appeal from Hawthorne v Cox [2008] 1 NZLR 409 (HC)) and R v S [Guardianship] (2003) 22 FRNZ 1017 (HC).21 Set out at para [36] below.22 RJB v RAG [2013] NZFC 1389. Judge Smith had referred to relevant appellate authority and to an earlier decision that she had given on the same topic. For example, AHM v EAD FC Christchurch FAM-2007-008-1579, 16 March 2010.Court ought to have regard to all relevant matters, including, but not limited to, the following matters in regards to childcare:(a) the need to ensure that effect is given to the s 4 paramount principles in [Care of Children Act];(b) the object of the legislation;(c) the nature of the disputes;(d) the way in which the parties and counsel conducted the proceedings;(e) the means of the parties;(f) the actual cost incurred by the parties;(g) the overall interests of justice; and(h) the need to be mindful of the genuine and reasonable litigant, who should not fear an award of costs and, given the nature of the Court – the importance of hearing all relevant arguments.[10] The outcome of the proceedings is obviously another matters which must be considered in deciding whether to exercise my discretion, and was in fact a matter considered in detail by the Judge in RJB v RAG.[11] Judge E Smith notes that the welfare arguments in family law matters involving children can be finely balanced, with legitimate positions and genuine arguments advanced by parties, which should always be considered – this being the reason why traditionally costs have not followed the event in family law matters. However, she also comments that there willbe occasions where a party's position may be "significantly unmeritorious".[22] The Judge discussed the costs application under each of those headings. Forpresent purposes, Judge Walker's assessment of the need to promote the welfare and best interests of children and her ultimate findings assume importance. On those topics, the Judge said:Object of the legislation and s 4 of [Care of Children Act][16] The object of the legislation is to promote the welfare and best interests of children – in this particular case, the parties' daughter, Susan. Under s 4 of [Care of Children Act] these welfare and best interests'considerations must be the first and paramount consideration. The decision whether to continue to preclude contact between a parent and child isobviously highly pertinent to Susan's welfare and best interests.[17] While the mother submitted that ongoing litigation was not inSusan's best interests due to emotional effects it had on her, this could be, aslawyer for the child submitted, at the high cost of having no relationshipwith her father. It was certainly not in Susan's best interests, despite thepressures and stress involved in litigation, to deny any further contact between her and her father without undertaking further assessment as to the effects this may have on her as well as her views on the matter....Finding[31] Having had regard to the above matters, I am satisfied that in the circumstances, this is a matter where the father ought to receive an award of costs. He was successful in this interlocutory matter, which was not one of those finely balanced issues within which costs are inappropriate.[32] The overall interests of justice, and the welfare and best interests of Susan supported the dismissal of the applications to strike out or stay the parenting orders sought, as well as the application to prevent further proceedings without leave. While there is a history of litigation between the parties, there has been a material change in circumstances, and indeed, a long period of non-contact in terms of Susan's sense of time. These factors,and the high threshold required to achieve the orders sought by the mother indicate that the jump to deny the father his day in Court was somewhat unreasonable action to take.[33] The father appeared to be a genuine litigant with respect to his contact application, which was carefully framed and realistic in the circumstances. It was therefore important that his relevant arguments, seemingly based on Susan's best interests and welfare, particularly with aview to re-establishing a positive relationship with her father, were able to be considered by the Court.[34] While little is known about the actual costs of the parties and their means, the limited evidence before the Court has not persuaded me that the Court ought not to exercise its discretion to award costs, although this may be a factor in determining the quantum thereof.[23] Judge Walker then addressed the quantum of costs to be ordered. I did not understand counsel for Ms Levers to challenge the amount of the order, if I were touphold the Family Court Judge's decision to award costs.Competing contentions[24] Ms Manuel submits that the Family Court Judge erred:(a) By determining Mr Davis's application for costs when it had been made some two and a half months after the time for filing memorandahad been fixed by the substantive judgment of the Family Court, given on 13 February 2013.23(b) By not notifying Ms Levers that she intended to determine costs on the basis of an out of time memorandum.(c) By failing to take into account (either at all or adequately), the impact that an order for costs would have on the child, who has been the subject of lengthy care of children proceedings.24[25] Mr Noble submits that an appeal against an order for costs is treated as an appeal against the exercise of a discretion. He contends that no error of principle has been demonstrated. Nor, he submits, did the Family Court Judge fail to take account of relevant factors or take into account irrelevant ones. And, he asserts, the decisioncannot be regarded as "plainly wrong".25[26] Ms Sim, Lawyer for the Child, was appointed to be heard on the appeal.26While not taking any position on the appeal, Ms Sim has helpfully highlighted factors relevant to the welfare of the child. She concluded by submitting that it wasdifficult to see how the Court could interfere with (what she characterised as) "the proper exercise of the Judge's discretion in the circumstances". At her request (andwith the agreement of the parties), I excused Ms Sim from participation in oral argument.Analysis(a) The notice point[27] The first question is whether the Judge erred in failing to ensure that Ms Levers was aware that she intended to deal with the question of costs on the basis of23 Leves v Davis (Substantive) [2013] NZFC 1091 at para [163](iii), set out at para [14] above.24 Citing G v Cox [2008] NZCA 134 (on appeal from Hawthorne v Cox [2008] 1 NZLR 409 (HC)) and R v S [Guardianship] (2003) 22 FRNZ 1017 (HC).25 May v May (1982) 1 NZFLR 165 (CA).26 Levers v Davis HC Auckland CIV-2013-404-3707, 27 August 2013 (Minute of Ellis J) at para [9].the late memorandum from Mr Davis's counsel. The starting point for analysis onthis issue is r 132 of the Family Courts Rules 2002.[28] Rule 132 applies to a time that has been fixed by a judicial order.27 In her strike out judgment of 13 February 2013, Judge Walker had directed thatsubmissions on costs be filed "within 14 days" of delivery of that judgment.28 Rule 132(3) sets out the circumstances in which time might be extended:132 Changing times by which things to be done...(3) An order extending the time may be made before or after the time has expired by—(a) a Judge on such terms and conditions (if any) the Judge thinks fit if—(i) each person or party affected consents; or(ii) whether or not an interlocutory application for the purpose is filed, the Judge is satisfied that it is in the interests of justice to make the order; or(b) a Registrar on such terms and conditions (if any) the Registrar thinks fit if—(i) each person or party affected consents; or(ii) an interlocutory application for the purpose is filed and the Registrar is satisfied that it is in the interests of justice to make the order.....[29] While I do not doubt that the Judge had power, of her own volition, to extend time,29 she had to be satisfied, in doing so, either that each party consented to an extension of time or that it was in the interests of justice to make an order. In this case, there was no consent. The question is whether it was appropriate for the Judge, implicitly, to extend time "in the interests of justice".30 That turns on whether Ms Levers ought to have had the opportunity to make submissions on the issue.27 Family Courts Rules 2002, r 132(1).28 Levers v Davis [2013] NZFC 1091 (Substantive) at para [163](iii), set out at para [14] above.29 Family Courts Rules 2002, r 132(3)(a)(ii).30 Ibid.[30] In Skelton v Family Court at Hamilton,31 this Court was faced with an application to review a decision made by the then Principal Family Court Judge to publish judgments delivered in a Family Court proceeding, relating to a well publicised abduction of the child who had been the subject of those proceedings. The Judge had made the direction without hearing from the parties. The power to permit publication, under r 139 of the Care of children Act (in the form in which that section stood when Skelton was decided in 2007) required an assessment of whether publication was in the best interests of a child. As with the case of r 132 of the Family Courts Rules, I was satisfied in Skelton that the Family Court had power to exercise its jurisdiction to allow publication, of its own motion.32[31] In considering whether the Principal Judge had acted in breach of the principles of natural justice,33 I said:[85] Once the Family Court, through one of its Judges, had decided to consider exercising its power to permit publication of its own motion, two options arose. The first was to seek submissions from the parties and the lawyer for the child before making a decision under s 139(2). The second was to act unilaterally, without the benefit of submissions.[86] In acting unilaterally, the Family Court made an order of an ex parte nature. I describe the order in that way because it was initiated by the Court without notice to anyone; as opposed to an ex parte order, which is made following an application by only one party to a dispute. The standard to be applied by the Family Court in making a unilateral decision can be no lower than that required to make an ex parte order.[87] The circumstances in which it is appropriate for Family Courts to make ex parte orders were discussed in detail in both Martin v Ryan and Y v X. Those cases emphasise both that the exercise of such jurisdiction should occur rarely and the need for caution in proceeding ex parte. Both cases dwell on the need for compliance with the principles of natural justice, particularly the audi alteram partem (hear the other side) principle. The need to comply with those principles of natural justice is both affirmed and emphasised by s 27(1) of the Bill of Rights.(footnotes omitted)[32] Rule 220 of the Family Courts Rules set out the circumstances in which applications may be made without notice. Like Skelton, this was a case in which the relevant jurisdiction (being the implicit extension of time) was invoked by a Judge in31 Skelton v Family Court at Hamilton [2007] 3 NZLR 368 (HC).32 Ibid, at para [74].33 See s 27(1) of the New Zealand Bill of Rights Act 1990.the absence of an application. The difference between this case and Skelton is that Judge Walker made no conscious decision to extend time, while the decision to publish in Skelton was deliberate. Because Judge Walker did not turn her mind to the extension issue, she did not seek submissions from counsel for Ms Levers, either on the extension issue or the substantive question of costs.34[33] I am confident that Judge Walker's attention was never drawn to the fact thatthe time for filing the memorandum as to costs fixed by her substantive judgment had expired. Thus, there was no reason for her to turn her mind explicitly to the question whether an extension of time should be granted, and if so on what terms. However, even though it is somewhat harsh on Judge Walker to make this finding, r 132(1) and (3)(a) of the Family Courts Rules does contemplate the need for a Judge to alert a party if he or she were to decide to proceed to judgment on the basis of a late memorandum or application, to which that party has not responded.[34] While as a matter of law, I consider the Judge ought to have ensured Ms Levers had an opportunity to respond, counsel for both Mr Davis and Ms Levers must each take some responsibility for what occurred. Counsel for Mr Davis (in the absence of consent from Ms Levers) should have made it clear that the memorandum seeking costs was being filed and served out of time and that an extension was required. Equally, counsel for Ms Levers ought not to have stood back and ignored the memorandum, putting her client at risk of an adverse judgment through a failure to make submissions. At the end of the day, the decision I have reached on this issuefocuses on the injustice that might be suffered by a person in Ms Levers' position,notwithstanding the way in which her counsel elected to deal with the point.(b) The welfare and best interests of the child[35] The Family Court's jurisdiction to award costs in care of childrenproceedings stems from s 142(1) of the Care of Children Act and r 207 of the Family Courts Rules 2002. They state:142 Costs34 Compare with Skelton v Family Court at Hamilton [2007] 3 NZLR 368 (HC) at para [90].(1) In any proceedings under this Act, the Court may make any order as to costs it thinks fit....207 Costs at discretion of Court(1) The Court has discretion to determine the costs of—(a) any proceeding:(b) any step in a proceeding:(c) any matter incidental to a proceeding.(2) In exercising that discretion, the Court may apply any or all of the following DCRs, so far as applicable and with all necessary modifications:(a) 4.2—principles applying to determination of costs:(b) 4.3—categorisation of proceedings:(c) 4.4—appropriate daily recovery rates:(d) 4.5—determination of reasonable time:(e) 4.6—increased costs and indemnity costs:(f) 4.7—refusal of, or reduction in, costs:(g) 4.8—costs in interlocutory applications:(h) 4.9—costs may be determined by different Judge:(i) 4.10—written offers without prejudice except as to costs:(j) 4.11—effect on costs:(k) 4.12—disbursements.(3) This rule is subject to the provisions of the family law Act under which the proceedings are brought.[36] The section and the rule work together, conferring a discretion on the Court to determine costs of any proceeding, any step in a proceeding or any matter incidental to a proceeding.35 Rule 207(2) goes on to identify provisions in the District Courts Rules that may be applied in relation to the fixing of costs.3635 Family Courts Rules 2002, r 207(1).36 Ibid, r 207(2).[37] A number of authorities deal with the factors to be taken into account in determining how, in a given case, the discretion can be exercised in a principled manner. The previous incarnation of s 142(1), s 27B of the Guardianship Act 1968, was considered by a Full Court of this Court in R v S [Guardianship],37 in the context of an application by a mother to relocate to Sydney with a child. Given the similarities between s 142(1) of the Care of Children Act and s 27B of the Guardianship Act, there is no reason to depart from the principles expressed in that case.[38] In R v S, attention was drawn to the importance of the welfare of the subject child (or children) in determining whether to make such an order. Giving the principal judgment, with which Priestley J agreed, I said:[63] 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 Court. As the Family Court, in guardianship proceedings, exercises an inquisitorial jurisdiction it is important that all relevant arguments be put before the Court. As to the nature of the inquisitorial jurisdiction, I refer to P v K [[2003] 2 NZLR 787] at 815-818 per Priestley J. In particular, I draw attention to the authorities collected in paras [148] and [149] at 815-816.[64] Further, I am of the view that, particularly in a case where the Judge does not appear to have made any determinations of credibility as between the parents and where the case might properly be said to be finely balanced, it is wrong, as a matter of principle, for costs automatically to follow the event in such proceedings. In this particular case, I note that the Judge did not refer expressly to the concession made by R before the hearing which removed the need to spend much energy and resources on issues involving the child's involvement in R's religion. That is a factor which ought to havebeen taken into account on the question of costs in this case, but was not.[65] In making those observations I do not intend to inhibit the Family Court in the exercise of its undoubted discretion (under s27B of the Act) to award costs against an unsuccessful party in guardianship proceedings where the party has unreasonably prolonged litigation or otherwise conducted himself or herself in a manner which has brought greater costs on another party or has caused detriment to the welfare of the child. In each case a balance must be struck.[66] While the Judge, in this case, took the view that the shared care arrangement in force at the time of the hearing was no longer practicable, it was open to argument as to what type of care arrangement should replace it.37 R v S [Guardianship] (2003) 22 FRNZ 1017 (HC).A different form of shared care arrangement may have been appropriate; primary care in favour of either parent may have been consideredappropriate. With reference to the Judge's reasons for awarding costs, summarised in para [29] above, I notea) The appropriate form of care arrangement had to be determined;b) The fact that neither of the parties were in a strong financialposition and their legal costs were "not substantiallydifferent" does not advance a case for costs;c) The statement that the "overall interests of justice" requiredan order for costs was a conclusion rather than a reason for a conclusion.(Emphasis added)[39] In G v Cox,38 the Court of Appeal considered an application by Ms G for leave to appeal against my decision in the High Court,39 refusing to award costs in favour. She argued that costs should have been ordered in her favour, on the basisthat "costs should normally follow the event", and that that usual rule in High Court proceedings should also be applied to proceedings under the Care of Children Act.[40] In addition to R v S, the Court of Appeal considered a number of decisions of the High Court in which different approaches had been taken; in particular, H v A40and DLB v DLS.41 Delivering the judgment of the Court in Cox, Glazebrook J said:[27] Our preliminary view is that this favours the approach to costs outlined in H v A where the welfare of the child is the overriding and paramount consideration (as required by s 4 of the [Care of Children Act]. However, it seems to us that the conflict between the two decisions may be more apparent than real. Although Cooper J would start with the High Court Rules, he did acknowledge that the welfare and best interests of the child may well legitimately override the normal rules as to costs.[28] We would also accept, as pointed out by Cooper J, that different considerations might arise on appeal than in the lower court. While parents should not be discouraged from raising all genuine and responsible arguments they believe to be in the best interests of the child in the lower court, the same might not apply on appeal given that litigation and uncertainty will be prolonged — see E v C [1995] 3 NZLR 310 at 314 (CA).38 G v Cox [2008] NZCA 146.39 Hawthorne v Cox [2008] 1 NZLR 409 (HC) at para [99].40 H v A (2002) 22 FRNZ 447.41 DLB v DLS [2007] NZFLR 422.[41] In light of those authorities, did Judge Walker ask herself the right question?The correct question was: Are Susan's best interests promoted or harmed byrequiring Ms Levers to pay costs to Mr Davis? However, it seems to me that Judge Walker asked herself the wrong question: Were Susan's best interests promoted by dismissing Ms Levers' strike out application? By asking the wrong question the Judge focussed on the impact of a decision not to strike out Mr Davis's applicationon the welfare and best interests of Susan, rather than the impact of any costs order that she may have made.[42] In touching on the "best interests" factor, Judge Walker did so with referenceto the dismissal of the strike out application, as opposed to the award of costs. In her costs judgment, she referred to the decision whether contact between Mr Davis andSusan should be further precluded as "highly pertinent to Susan's welfare and best interests."42 That point was emphasised by her later observations that the "overallinterests of justice, and the welfare and best interests of Susan supported thedismissal of the" application to strike out and to the genuine nature of Mr Davis's application, "seemingly based on Susan's best interests and welfare, particularly witha view to re-establishing a positive relationship with her father".43[43] Both G v Cox and R v S emphasise the need to link a decision whether to award costs to the impact of any order on the best interests and welfare of the childconcerned. While there is no immutable rule that the "best interests" factor willnecessary trump all others, some good reason must be shown for the countervailing considerations to be given greater weight. By asking herself the wrong question, the Judge failed to consider the appropriate balance to be struck when determining whether to order costs.44(c) Conclusions[44] Having decided that the Judge erred in not ensuring that Ms Levers had the opportunity to be heard on the late costs application and in asking herself the wrongquestion when considering the "best interests" criterion, I consider the appeal should42 Levers v Davis [2013] NZFC 1091 (Costs) at para [16], set out at para [22] above.43 Ibid, at paras [32] and [33], set out at para [22] above.44 G v Cox [2008] NZCA 134 at para [28] and R v S [Guardianship] (2003) 22 FRNZ 1017 (HC) at para [65], set out at paras [40] and [38] above respectively.be allowed. Given the amount involved, I propose to deal with the costs issue myself, rather than to remit it to the Family Court for reconsideration.[45] In my view, costs ought not to have been awarded against Ms Levers on her unsuccessful strike out application, because:(a) The application was brought at a time proximate to firm findings by a Family Court Judge that the extreme step of preventing contact between Mr Davis and his daughter should be taken.45 No appeal wasbrought against Judge de Jong's decision to refuse contact. InNovember 2011, Ms Levers could properly have seen Mr Davis's fresh application both as an abuse of the Court's processes, and anattempt to engage her (and Susan) in unnecessary litigation.(b) Although Ms Levers had been successful in obtaining a protection order and in defending all of the applications made by Mr Davis with which Judge de Jong dealt, no costs were awarded in her favour.46 Itake Judge de Jong's reasons for reaching that conclusion asnecessarily reflecting the need to avoid further conflict between the parties through making an order for costs against Mr Davis. A similar approach was required on the strike out application, given the history of the proceedings generally.(c) Ms Levers, having made an understandable application to strike out tomeet Mr Davis's fresh application but not having had the opportunityto have that resolved at a time proximate to its filing, ought not to have been mulcted in costs. Both parties must assume some responsibility for not ensuring that the hearing of a stale application to strike out was replaced by one designed to resolve the issues raised byMr Davis's application.4745 See the findings set out at paras [7] and [9] above.46 See para [10] above.47 See para [13] above.Result[46] For those reasons, the appeal is allowed and the order for costs made in the Family Court is set aside. In substitution, I rule that there be no order for costs onMs Levers' unsuccessful strike out application.[47] I make no order as to costs on the appeal. The problems that emerged through the late application for costs in the Family Court, and the inability for full submissions to be made by both sides48 were not caused exclusively by steps taken on behalf of the litigants, though they must take some responsibility, for reasons already outlined.49 Further, consistent with her position that costs should not have been ordered in the Family Court, Ms Manuel did not ask for costs on a successful appeal.[48] The costs and disbursements incurred by Ms Sim, as Lawyer for the Child, shall be paid out of monies appropriated by Parliament for the purpose.[49] Sadly, this litigation is likely to continue. It has reached the point where both parties should expect to be at risk of costs if they put forward unsustainable arguments, or if their conduct demonstrates that they are not dealing genuinely and sensibly with the issues raised, with the best interests of Susan at the forefront of their minds. I leave both Ms Levers and Mr Davis to reflect on that observation.____________________________P R Heath JDelivered at 4.30pm on 5 November 201348 Taking account of the way in which Judge Walker's order was interpreted by Mr Davis' formercounsel: see para [17] above.49 See para [34] above.