Smith v Smith - [2013] NZHC 3559

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2013-485-303 [2013] NZHC 3559

IN THE MATTER OF the Family Proceedings Act 1980

BETWEEN SMITH Appellant

AND SMITH
First Respondent
BROWN
Second Respondent

Hearing: 19 December 2013

Counsel: C Tennet for the Appellant
C Nicholls for the First Respondent
No appearance for the Second Respondent
P Cobcroft for the Child

Judgment: 19 December 2013

ORAL JUDGMENT OF MALLON J

Introduction

[1] Mr Smith applies for leave to appeal my judgment dated 27 September 2013 to the Court of Appeal.1 Mr Brown and counsel for the child, Sarah, oppose the

1 Smith v Smith [2013] NZHC 2536.

SMITH v SMITH [2013] NZHC 3559 [19 December 2013]

application for leave. Mrs Smith has been informed of today’s application but has

taken no steps in respect of it.2

[2] The background to my judgment is that Mr Smith sought to appeal a recommendation made by a Family Court Judge that parentage testing be carried out on Sarah and Mr Brown, who claims to be Sarah’s father. The recommendation was made by a Judge when Mr Brown made a without notice application to dispense with service of Mr Brown’s application for a paternity declaration on Sarah’s mother. The Judge did not hear from any party. Mr Smith, who was married to Sarah’s mother at the time of Sarah’s birth and is named as the father on Sarah’s birth certificate, objected to the recommendation and filed an appeal to the High Court.

Leave to appeal

[3] A decision of the High Court on an appeal from an inferior court is final unless a party obtains leave to appeal against the decision to the Court of Appeal.3
Leave to appeal may be granted if the appeal raises a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and the parties, and the delay involved in a further appeal.4

Appeal grounds

[4] As set out in the application and as developed in the submissions on Mr Smith’s behalf, Mr Smith applies for leave to appeal on the basis that I erred in fact and law by:

(a) not declaring the proceedings null and void;

(b)finding that Mr Smith would not be irretrievably adversely affected by the null and void steps taken by the Family Court;

2      As in my 27 September 2013 judgment the names used in this judgment are fictitious because
the child’s name and identifying particulars are subject to statutory suppression.
3      Judicature Act 1908, s 67(1)(a).
4      For the principles to be applied to determining whether leave should be granted, see Waller v
Hider [1998] 1 NZLR 412 (CA); Snee v Snee (1999) 13…

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 [2013] NZHC 3559
Case: [2013] NZHC 3559
Decision Date: 19 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Mr. Smith sought leave to appeal a decision made by the Family Court, which recommended that parentage testing be carried out on Sarah, his daughter, and Mr. Brown, who claims to be Sarah's father. The appeal was brought after Mr. Brown made a without notice application to dispense with service of his application for a paternity declaration on Sarah's mother, who was married to Mr. Smith at the time of Sarah's birth. Mr. Smith argued that he had not been heard prior to the recommendation made by the Family Court Judge and that the appeal raised an interesting question as to whether a recommendation was an interlocutory order that could be appealed.

The legal issues before the court were whether the appeal raised a question of law or fact capable of bona fide and serious argument, and if the appeal involved some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and the parties, and the delay that would be involved. The court found that Mr. Smith would have the right to be heard in respect of whether a parentage test should be carried out when the court considers the guardianship application. As such, there was no point in quashing the recommendation that the Family Court judge had made, in order that Mr. Smith first have the opportunity to be heard in respect of it. That same opportunity will arise in the context of the guardianship application.

The court declined to grant leave to appeal the decision as it did not raise a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost, both to the court system and the parties, and the delay that would be involved. The court also found that it was not in Sarah's interests that there be further delay by granting leave to appeal the judgment, when Mr. Smith will have the right to be heard in respect of the recommended parentage test in the context of the guardianship application.

Orders