Denning v Roberts - [2024] NZHC 188

ANONYMISED JUDGMENT FOR PUBLICATION

NOTE: ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE PARTIES AND THE CHILDREN.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2023-409-515

[2024] NZHC 188

UNDER the Care of Children Act 2004

IN THE MATTER

of an application for leave to appeal a Family Court judgment

BETWEEN

DENNING

Appellant

AND

ROBERTS

Respondent

Hearing: 9 February 2024

Appearances:

Denning (Appellant) in person, by audio Roberts (Respondent) in person

Judgment:

15 February 2024

JUDGMENT OF OSBORNE J

The names of the parties have been anonymised in the published judgment to Denning v Roberts

This judgment was delivered by me on 15 February 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

DENNING v ROBERTS [2024] NZHC 188 [15 February 2024]

[1] The appellant and the respondent were formerly married. In this judgment I refer to “appellant” although she is strictly speaking an applicant for leave to appeal until the point is reached that leave to appeal is granted. The parties have a five year old daughter (“Kate” in this judgment — not her real name). On 11 August 2023 the Family Court made a number of orders (“the judgment”1) in relation to Kate, principally that she have an operation removing her tonsils and adenoids (“the operation”).

[2] The appellant opposed the making of the orders and now seeks leave to appeal the judgment. This Court directed that submissions be presented on both the leave application and on the substantive appeal at the one hearing, which has now occurred.

The judgment

[3] Judge Hambleton identified that Kate’s father (the respondent here) had applied under s 46R of the Care of Children Act 2004 (the Act) for an order enabling Kate to have her tonsils and adenoids removed.

[4]The Judge referred to the evidence relating to Kate’s condition:

(a)The respondent’s affidavit evidence, identifying the impact of Kate’s enlarged tonsils upon her eating and sleeping, and causing her to snore, and the respondent’s attempts to resolve the matter out of court before making his application. The appellant had told the respondent she did not consent to surgery for Kate while a Court of Appeal decision was pending, and in particular did not consent to Kate receiving medical treatment “through the public system CDHB other [than for] accident and emergency”. A subsequent request that the appellant consent to surgery on a private basis was met with a similar response.

(b)A letter from an otolaryngologist, Melanie Souter, dated 2 May 2023 supporting the operation. Dr Souter’s report refers to an examination of Kate and her findings, including that Kate has very large grade 4

1 [Roberts] v [Denning] [2023] NZFC 8969.

tonsils meeting in the midline — Dr Souter expresses “no doubt that she has sleep disordered breathing and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Denning v Roberts

Details

AGLC: Denning v Roberts [2024] NZHC 188
Case: [2024] NZHC 188
Decision Date: 15 February 2024

CaseChat Overview and Summary

Denning sought leave to appeal a Family Court judgment made in proceedings brought by Roberts under section 46R of the Care of Children Act 2004. The Family Court had made a number of orders in relation to their five-year-old daughter Kate, principally that she have an operation removing her tonsils and adenoids. Denning opposed the making of the orders and now sought leave to appeal the judgment. This Court directed that submissions be presented on both the leave application and on the substantive appeal at the one hearing. Denning identified a number of grounds of appeal, including that the Family Court erred in finding that it would be plainly contrary to Kate’s welfare and best interests for the proposed operation to not proceed. This Court found that the Family Court did not err in its substantive assessment of Kate’s welfare and best interests and dismissed the appeal.

Orders