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Roth v Roth [2020] NZFC 3465

Published 09 November 2022

Costs — interlocutory application — inadmissible evidence — legal aid — Care of Children Act 2004, ss 132 & 142 — Family Court Act 1980, s 12A(4) — Legal Services Act 2011, s 45 — Family Court Rules 2002, rr 3(1)(a), 8(1), 170 & 207 — District Court Rules 2014, rr 14.2-14.12, 14.13, 14.15, schs 4 & 5 — PRH v CTB [2012] NZHC 674 — H v M [2015] NZHC 3264 — M v A [Costs] [2006] NZFLR 441. This was an application for costs in respect of an interlocutory matter between the parties. The parties were involved in childcare proceedings; the respondent mother had made a without notice application for a parenting order, and the applicant father applied to exclude as inadmissible some evidence from a social worker's report. At the application hearing the mother withdrew the evidence. The father sought costs on the basis that he was successful in his application as to admissibility and that the respondent mother had unnecessarily incurred costs by opposing the application until it reached the hearing stage. A court has a discretion to grant costs and must consider the welfare and best interests of the child in Care of Children Act proceedings. The Judge concluded that the mother should have withdrawn the evidence when first invited to do so. Given that the mother was legally aided, this brought s 45 of the Legal Services Act into play. This meant that costs could not be awarded against a legally-aided party unless there are exceptional circumstances, if costs are awarded the costs must not be unreasonable in the circumstances, and if costs are not awarded the court must state how much would have been awarded but for the provision. The Judge considered it would potentially be disadvantageous to the children if costs were awarded against the mother. The Judge declined to order costs but noted that but for the s 45 provision, costs in the amount of $1,500 would have been awarded. Judgment Date: 22 May 2020. * * * Note: names have been changed to comply with legal requirements. * * *