Tlw v Lcb Fc Lhtt

 
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IN THE FAMILY COURT AT LOWER HUTT

FAM-2007-032-000325

In the Matter of the care of Children Act 2004

BETWEEN
TLW
Applicant
and
LCB
Respondent
Appearances:

P Le Page for applicant

J Steele for respondent

P Reid lawyer for children

Decision relating to costs and drug testing — substantive proceeding related to applications under the Care of Children Act by the mother to relocate to Australia with the parties children (unsuccessful) and by the father for alternate weekly care — allegations of drug use and criminal associations against the father — father lied in Court and Family Court made numerous adverse findings against him — whether costs should be awarded under s142 Care of Children Act 2004 (costs) and r207 Family Courts Rules 2002 (costs at discretion of Court) — whether the father should be subject to random drug testing — principles of costs awards under the Care of Children Act 2004.

The issues were: whether costs should be awarded under s142 COCA (costs), r207 Family Courts Rules 2002 (“FCR's”) (costs at discretion of Court) and whether the father should be subject to random drug testing.

Held: Rule 207 FCR's allowed the Court a discretion as to whether to apply any or all of the specific District Court Rules (“DCR's”) so far as applicable to the issue of costs. The common factors under s142 COCA relating to costs included: the overriding need to ensure effect was given to the paramouncy principle contained s4 COCA (child's welfare and best interests to be paramount); object of the COCA to promote the child's best interests; the mattes in dispute; the way the parties had conducted the proceedings; and whether either had unduly complicated or protracted the proceedings; means of the parties; actual costs incurred; the impact any costs order would or may have on the welfare and best interests of the children; and the overall interests of justice.

Both parties had genuinely believed their application would promote the welfare and best interests of the children when their respective applications had been filed. The mother could not be criticised for making the relocation application and the father had not pursued a shared parenting application after the s133 COCA report. Neither party had been legally aided. The mother had limited financial resources and did not work part time. The father had taken a loan from his father to pay the legal costs and due to an injury would be receiving ACC compensation, resulting in him receiving only about 80% of his normal pay. Presently there was provision for him to have contact with the children on a fortnightly basis; a reasonable award of costs would not prevent him from continuing to have that contact. The mother bore the major responsibly for the support and care of the children. An award of full indemnity costs was contrary to the welfare and best interests of the children, however due to the father unduly protracting the proceedings, an award of costs was appropriate.

Each party was to bear their own costs in relation to the relocation hearing and the father was to pay $12,500 in relation to the mother's costs at the first hearing.

Given the father's financial situation he was to be subject to urine testing twice a month at his cost.

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE WWW2.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.

RESERVED JUDGMENT OF JUDGE A P Walsh

[Costs and Drug Testing]

Introduction:
1

On 30 June 2010 I delivered a reserved judgment dismissing Ms B's (the mother) application for relocation. A contact order was made in favour of Mr W (the father) subject to terms and conditions set out in paragraph [154] of the judgment. As issues of costs relating to this hearing and a hearing before her Honour Judge Ullrich QC had not been fully argued, I directed there be a telephone conference with counsel to consider how these issues would be determined.

2

Counsel could not agree upon a drug testing protocol as directed in my judgment. At a judicial conference on 8 October 2010 I made timetabling directions about the filing of further affidavit evidence relating to non-compliance of conditions attached to the order for contact and further directed memoranda were to be filed setting out proposals for drug testing and addressing the issue of costs.

3

At a teleconference with counsel on 1 December 2010, after hearing submissions, I advised I would deal with issues relating to drug testing and costs on the basis of memoranda and submissions filed by counsel. There were ongoing issues between the parties over contact arrangements. I ruled if either party wished to have the current orders varied then the appropriate applications would need to be filed and served in the usual way. I record counsel agreed I could deal with the issue of costs relating to the hearing before Judge Ullrich QC in April and May 2009.

Issue No. 1 – Costs:
4

The father initiated proceedings by filing an application for a parenting order seeking alternate weekly care of the children. The mother opposed that application and filed an application for an order enabling her and the children to relocate to Australia. The father opposed that application.

5

The applications were the subject of a substantive hearing which occurred in two stages. This procedure became necessary given the concerns of the mother about the father's involvement with drugs and criminal associates. At a judicial conference on 11 December 2008, Her Honour Judge Moss issued a minute directing how the hearing was to proceed. At paragraphs [5] to [7] she made the following observation:

5
    However, there is now another problem, which was not able to be solved at the time that Mrs Keith did her report. The mother has criticised the father's parenting, based on involvement with drugs and criminal associates. Ms Keith has referred to those complaints by the mother. Since Mrs Keith's report, the mother has filed a considerable number of affidavits from people who profess direct and individual knowledge of drug use and dealing by Mr W, and including some criminal association. [6] It is necessary for the Court to make findings about that evidence. Mrs Keith is not prepared to, nor is she is qualified to assess that evidence and it would be wrong for the Court to ask her to do that. Thus the fixture which has previously been authorised needs to be divided into two. [7] Although s 60 of the Care of Children Act does not apply to this situation so directly, the process which the Court has developed, to resolve issues under s 60 fit nicely with what is occurring here. Thus there is to be a fixture for 112 days allocated, as soon as is practicable, to consider the allegations made by the mother of the father's fitness to parent these girls in a substantial way, based on the mother's allegations of his criminal behaviour and drugs abuse.

Judge Moss indicated once the Court had made findings about those matters, Mrs Keith would then be asked to consider those findings in an updating report.

6

The fact finding hearing took place before Her Honour Judge Ullrich QC on 30 April and 1 May 2009. On 8 May 2009, Judge Ullrich QC delivered a reserved judgment in which she recorded a number of adverse findings against the father. In my judgment delivered 30 June 2010 at paragraphs [11] to [22] I reviewed the findings of Judge Ullrich. She had noted the mother believed the father would never tell the truth about a matter if it incriminated him. The mother alleged the father was involved with drugs and criminal activity and was particularly concerned he was using the drug “P”. The father denied any involvement in the criminal world and use of drugs. He conceded in the past he had used cannabis occasionally, about three years previously and there were two occasions when he did try the drug “P” but he claimed that was about 3—3 1/2 years ago. About 5—7 years, before he separated from the mother, he admitted he had tried LSD and Ecstasy. He denied he was a big user of cannabis and denied selling cannabis.

7

At the first hearing the father indicated he was prepared to undergo a hair follicle drug test but did not disclose on the first day of the hearing that in fact he had already undergone such a test. Judge Ullrich questioned the father directly about undergoing such a test and the father lied in his response to her. On the second day of the hearing the father was recalled and he admitted at that stage he had undergone hair follicle testing a few weeks previously. That test indicated he had ingested methamphetamine in about November 2008. The father advised he was making further inquires as he did not understand how this could be the result when he had not taken the drug.

8

At paragraphs [75] to [79] Judge Ullrich made a number of specific findings which can be summarised as follows:

1
    The father had lied in answering questions from the Court on the first day of the hearing about hair follicle testing. 2. The father's pattern of denial followed by admissions, when confronted with alternative evidence or consequences was exactly the pattern described by the mother and her partner in their evidence, ie. “deny, deny, deny until you are caught and then say you're sorry”. 3. The father had lied about his involvement with drugs and drug dealing...

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