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Thorpe v Green [2021] NZFC 12262

Published 22 March 2023

Costs — increased costs and indemnity costs — declaration of paternity — Family Proceedings Act 1980, s 171 — Care of Children Act 2004 — Status of Children Act 1969, s 3 — Family Court Rules 2012, r 207 — District Court Rules 2014, rr 14.2 & 14.6 — A v A [1999] NZFLR 447 — H v A (2002) 22 FRNZ 447 — R v S (2003) 22 FRNZ 1017 — T D P v S J C (2011) NZFLR 241. The applicant had been successful in her application for a declaration of paternity against the newly declared father's estate and the grandfather's estate. She sought increased or indemnity costs awarded against each respondent because of their initial rejection of DNA testing to settle the matter, which then resulted in the proceedings. The respondents detailed that in earlier paternity proceedings commenced by the deceased father, the applicant had not engaged in this process. Therefore costs should lie where they fell. The Judge noted that the deceased father was responsible for not taking the earlier proceedings forward, causing them to be struck out. The Court outlined its unfettered discretion under the Family Proceedings Act to make decisions in relation to costs, exercised on a principled and reasonable basis. The Judge acknowledged that various principles in legislation identify the importance of the status of a child's parentage. As such, proceedings about these matters are of significance and those involved should endeavour to resolve them quickly. The Judge found that the respondents had failed to take up the remedy of DNA testing available, and had not accepted paternity based on the strong results that followed. An award of two-thirds increased costs was made in favour of the applicant, to the sum of $15,000. This was to be split equally by the two respondents. Judgment Date: 6 December 2021 * * * Note: names have been changed to comply with legal requirements. * * *