The recent decision of H -v- H in the High Court on the 10th of November 2020 looked again at the traditional view that costs are not awarded in Family Law cases.
This case was an appeal from the Circuit Court in relation to access to the children. The father in this case was the primary career. The mother, who the court accepted had alcohol addiction issues, was appealing the Circuit Court decision in relation to access.
The High Court Judge restated the principal that the primary consideration for the court regarding access and custody is the best interests of the children. He dismissed the notion that a Mother put forward that a Mother had some “natural” role as a primary career and ruled that “custody and access is not to be decided on by reference to some discriminatory theory of what is natural, but by reference to the best interests of the children which normally involves the society of both parents.”
Having broadly affirmed the Order of the Circuit Court, the Judge turned to the question of costs.
Traditionally costs are not awarded against either party in Family law cases. In this case the Judge revisited that presumption. As the Mother had been unsuccessful in her appeal, the Judge was asked to award costs to the Husband.
The Judge considered that the fact that it was a family law case might have traditionally been seen as a reason for no order as to costs, but did warn that this cannot be an absolute rule. The Judge was concerned that if there was no award as to costs in matters of this nature on a virtually automatic basis, that there was no incentive for parties to act reasonably in general and in particular to minimise the
amount of litigation involved.
The Judge felt that as the access issues had been dealt with extensively in both the District Court and the Circuit Court already, and that the appeal to the High Court had failed. The Judge held that whilst he would not necessarily wish costs orders to become a completely routine feature of family litigation, that they must have some place in the appropriate case.
It seems clear that the Judge felt that an award of costs was appropriate in a family law case where the unsuccessful party continued to litigate a case from court to court, without any success in the appeal. The Judge was critical of the manner that the Mother had presented the case and characterised her evidence as unreliable.
Had this not been the case it is unclear if the Court would have awarded costs to the Husband so this case should not be taken as general precedent for awarding costs in Family Law.
Contact Ronan Kennedy at ronankennedy@kfos.ie for more information.
