Smith v Smith - [2016] NZHC 1197

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2016-443-000012 [2016] NZHC 1197

BETWEEN
ALISTER SMITH

Appellant

AND

NICOLA SMITH Respondent

Hearing: 1 June 2016

Appearances:

E J Unsworth for Appellant
K A McKenzie for Respondent

Judgment:

3 June 2016

JUDGMENT OF DUNNINGHAM J

Note: The names of the parties in this judgment are fictitious to preserve the
parties’ anonymity.

[1] The Smiths’ nine year marriage ended in early 2013. In November that year, Mrs Smith applied to the Family Court at Whanganui for orders dividing the couple’s relationship property. She subsequently moved, with the couple’s son, to New Plymouth where she lives with her new partner.

[2] In September 2014, she applied, under r 186 of the Family Court Rules, to have the proceedings transferred to New Plymouth. For various reasons, that application was not dealt with for more than a year. Eventually, Judge Sygrove
heard and determined the application on 14 December 2015.

SMITH v SMITH [2016] NZHC 1197 [3 June 2016]

[3] He granted the application for transfer primarily on the basis of Mrs Smith’s affidavit evidence, which outlined that she suffered from multiple sclerosis which meant that driving or travelling to the Whanganui Court would be stressful and make her physically unwell, and that would hinder her ability to participate meaningfully in the proceedings.

[4] Mr Smith appeals that decision on the following grounds:

(a) the Judge erred in law in finding that cross-examination of the respondent was not necessary;

(b)

the Judge erred in law in finding that a formal application to cross-examine the respondent was required;

(c)

the Judge erred in law in failing to properly apply the test for transfer of proceedings in r 186 of the Family Courts Rules 2002 as

interpreted by case law;

(d)

the Judge erred in law and/or principle in his treatment of unsworn

evidence;

(e)

the Judge erred in law and/or principle in his treatment of untested

and disputed evidence.

[5]

All

grounds of appeal are opposed by the respondent. Her lawyer,

Ms McKenzie, submits that the decisions made by the Judge in the course of case managing, and then hearing and determining the application, were decisions made in the exercise of his discretion and there was no error made by the Judge which warranted this Court revisiting his decision.

Right of appeal

[6] Counsel for Mrs Smith pointed out that there was some divergence as to whether there is a right of appeal against interlocutory orders made in relationship property proceedings given that s 39 of the Property Relationships Act 1976 (which

governs the right to appeal) does not appear to cover interlocutory orders. However, as was concluded by John Hansen J in E v E,1 the general right of appeal from the District Court under s 72 of the District Courts Act 1947, gives an automatic right of appeal on interlocutory matters to this Court.

[7] That said, I also note the observations of Panckhurst J in Dorchester Finance Ltd v Christchurch Food Courts…

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 [2016] NZHC 1197
Case: [2016] NZHC 1197
Decision Date: 3 June 2016

CaseChat Overview and Summary

The case of Smith v Smith involved an appeal by Alister Smith against a decision of Judge Sygrove in the Family Court at Whanganui, who had granted Nicola Smith's application to transfer the proceedings in their relationship property dispute from Whanganui to New Plymouth. The primary issue was whether Judge Sygrove erred in law or principle in deciding the application without cross-examining Nicola Smith or weighing untested and disputed evidence. Other issues included whether cross-examination was necessary, and whether a formal application to cross-examine was required. The High Court held that all grounds of appeal failed. The appeal against the decision to not cross-examine Nicola Smith was dismissed as there was no right to cross-examine in interlocutory applications, and the decision was proportionate to the procedural issue at stake. The belated nature of the request for cross-examination was also a valid reason for refusal. The balancing exercise required under r 186 of the Family Court Rules was considered adequate by the Judge, and the Judge's treatment of unsworn and untested evidence was deemed appropriate. The appeal was ultimately unsuccessful, and the decision to transfer the proceedings was upheld. The Court also ordered that costs follow the event, to be agreed upon by the parties on a 2B basis.

Orders