Lawyer Ben Keith representing a domestic violence survivor says it is of public interest to have clarity on the matter of costs. File photo. Photo: RNZ/Marika Khabazi
A survivor of domestic violence should not have to pay her abuser's court costs after her bid to get a protection order against him failed, a lawyer has told the High Court.
The Court of Appeal heard the case in the High Court at Auckland on Tuesday, when the panel - presided by Justice Sarah Katz - reserved their decision.
The woman's lawyer, Ben Keith, said it was of public interest to have clarity on the matter of costs, which he called an "echo" of her partner's psychological abuse.
He said costs awarded by courts could often be dry, but in this instance they were in the public interest because they had "a very real consequence" which was to have "another means of control".
Keith said there had been instances when survivors had withdrawn applications for protection orders due to possible court costs.
He also asked the court not to award costs arising from the appeal, not because he was representing his client pro-bono, but because it was in the public interest "and if we are right, a cost order should not be made".
The Family Court in 2021 found the woman had been subjected to psychological violence by her ex after their relationship ended, but at that time the court declined a protection order.
The court requires applicants of protection orders to prove not only that they were subject to family violence, but that they have grounds to fear for their future safety - it was because of the latter that the protection order was declined.
In 2022, the woman failed in a bid to appeal the decision about the protection order and the High Court ordered her to pay $13,000 in court costs.
It is these costs that are the subject of the current appeal.
The respondent's lawyer Simon Jefferson KC opposed the appeal and said the abuse was historical and any appeal carried a risk of costs.
He said he struggled with the idea that "awarding costs perpetuates the abuse", and that costs can often be an incentive to end legal matters.
Jefferson said costs were a risk of any appeal and were not an impediment to those seeking justice.
"The suggestion that if there's an award at costs on appeal that will have a chilling effect...I"m struggling to join the dots on that one."
In his High Court decision in 2022, Justice Geoffrey Venning said the woman's submission that her financial situation was difficult was related to her "choice" to reduce her working hours - something she decided to do in order to spend more time with her child.
"She made that decision aware this issue of costs was outstanding and aware of her other outstanding financial obligations and commitments."
Justice Venning said the issue of costs on the protection order was more nuanced, because the court had rejected her ex's attempt to challenge the finding of domestic violence, and so he ordered a reduction in costs.
"The underlying rationale contained in the comments of Woolford J are that a person should not be dissuaded from pursuing a meritorious application for a protection order in the Family Court," he said.
"A different approach however, applies on an appeal from the substantive decision of the Family Court to this Court. Once the matter has been considered by a judge and the merits of the application ruled on, an applicant who chooses to appeal is in a different position."