Smith v Smith - [2024] NZHC 3553

NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004 AND SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980, THE PARTIES IN THIS DECISION HAVE BEEN ANONYMISED.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2024-409-229

[2024] NZHC 3553

IN THE MATTER of an appeal against a decision of the Family Court

BETWEEN

CONNOR SMITH

Appellant

AND

ROSE SMITH

Respondent

Hearing: 5 November 2024

Counsel:

G P Tyrrell and J M Neville for Appellant J L S Shaw for Respondent

R M Williams for Chief Executive of Oranga Tamariki T D Holton – lawyer for child

Judgment:

26 November 2024

JUDGMENT OF RADICH J

[1] In a Family Court decision, a parenting order was made giving the day-to-day care of Violet Smith, who is 12 years old, to her mother, Rose Smith.1 Under the orders made, the extent of the contact that Violet’s father, Connor Smith, is permitted to have with her is limited to providing Christmas and birthday cards and gifts.

1 [Smith] v [Smith] [2024] NZFC 4571 (Judge Hunt) [Family Court decision]. The names of the parties in this decision have been anonymised.

SMITH v SMITH [2024] NZHC 3553 [26 November 2024]

[2] In this appeal, Mr Smith says that the parenting orders were made in error and should be discharged. He says that, in addition, the Judge erred in declining his applications for an order placing Violet under the guardianship of the Court under s 31 of the Care of Children Act 2004 or for a care or protection order under pt 2 of the Oranga Tamariki Act 1989.

[3] In this decision, I consider whether, in making those decisions, the Judge erred as has been alleged.

The essential facts2

[4] Violet’s parents separated in April 2019, when she was seven years old. In the same month, Ms Smith applied for parenting orders and for a protection order. While, ultimately, the protection order application was discontinued, allegations by Ms Smith of family violence by Mr Smith towards her, her son John (to a previous relationship), and to Violet continued. They included allegations that Mr Smith had sexually abused Violet.3

[5] Following the separation, Violet remained in her mother’s care. Contact visits with Mr Smith were challenging because of resistance to the visits displayed by Violet from the outset.

[6] In an October 2019 decision of Judge Hunt, it was concluded that there was no foundation for a finding of sexual abuse or of sexually inappropriate behaviour on the part of Mr Smith and that there were no grounds for a protective response from the Court as a result.4 Interim orders for supervised contact were made at that time and were continued through further supervised contact orders in September 2020. Mr Smith’s visits with Violet were supervised over the next four years or so.

2 The background to this proceedings is summarised in detail in the Family Court decision,…

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 Smith v Smith

Details

AGLC: Smith v Smith [2024] NZHC 3553
Case: [2024] NZHC 3553
Decision Date: 26 November 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Christchurch Registry, the case of Connor Smith v Rose Smith was heard, involving an appeal against a Family Court decision regarding the parenting order for Violet Smith, a 12-year-old girl. Connor Smith, the father, challenged the Family Court's decision that granted day-to-day care of Violet to Rose Smith, the mother, and limited his contact to providing cards and gifts. The father also contested the Family Court's refusal to grant guardianship or care and protection orders under the Care of Children Act 2004 and the Oranga Tamariki Act 1989. The central legal issues in this appeal revolved around whether the Family Court erred in making the parenting order, in declining the father's applications for guardianship or care and protection orders, and in not considering the potential for harm caused by the mother's influence on Violet. The High Court examined the particular circumstances of Violet, including her extreme reactions to any contact with her father, the risk of significant harm from further interventions, and the lack of plausible plans for changing the situation. The court concluded that maintaining predictability and stability for Violet was crucial for her welfare and best interests, and that the Family Court's decisions were consistent with these principles. The appeal was dismissed, with the court finding no error in the Family Court's approach and affirming the importance of Violet's current stability and well-being.

Orders