Smith v West
[2024] NZHC 3747
•10 December 2024
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION,
PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE
CIV-2024-442-000020
[2024] NZHC 3747
UNDER the Family Violence Act 2018 BETWEEN
SAMUEL SMITH
Appellant
AND
CHRISTINE WEST
Respondent
Hearing: 8 October 2024 Counsel:
M J McCartney KC for Appellant L J Kearns KC for Respondent
Judgment:
10 December 2024
JUDGMENT OF BOLDT J
Introduction
[1] Samuel Smith and Christine West married in 1995 and agreed to separate in 2023.1 Today their only contact is through their lawyers, as they seek to navigate two sets of bitterly-contested proceedings in the Family Court. One is a complex relationship property proceeding, while the other — this case — concerns a temporary protection order Ms West sought and obtained around the time she and Mr Smith separated.
1 Samuel Smith and Christine West are not the parties’ real names.
SMITH v WEST [2024] NZHC 3747 [10 December 2024]
[2] On 20 November 2023 the Family Court determined, based on material Ms West tendered, that there was evidence of physical and psychological violence in the marriage, and that the latter was escalating. It issued a temporary protection order.
[3] Although Mr Smith indignantly rejects the underlying allegations, this appeal does not challenge the protection order itself. Mr Smith has given notice, under s 147(1) of the Family Violence Act 2018 (the Act), that he wishes to be heard on whether the temporary order should be made final. That application is yet to be heard.
[4] This appeal is about the terms of the temporary protection order. It concerns whether the order should be varied to allow Mr Smith to return to the family home to collect certain items of property, and whether a handful of larger items should be shared. Mr Smith says he needs the items to work and earn an income.
[5] On 1 May 2024, Judge R J Russell refused the variation Mr Smith sought. He held the Act did not permit him to vary the order in the manner proposed, and that even if it did, he would not have regarded the proposed variation as appropriate.2 Mr Smith now appeals. He says the Judge was wrong to conclude the Court had no power to vary the order and argues that allowing him to uplift the items would strike an appropriate balance between the parties’ interests.
Background
[6] Mr Smith and Ms West own two properties, one in the Nelson area and another in Central Otago. The Nelson property served as their family home and is the location of one of their businesses.
[7] On 13 November 2023 the parties agreed to separate, though neither moved out immediately. Both had already engaged lawyers.
[8] The next day Mr Smith discovered Ms West had frozen the couple’s joint bank accounts. This, Ms West claims, threw Mr Smith into “the worst and most prolonged rage [she had] ever seen him in.” She says his rage continued into the following day,
2 [Smith] v [West] [2024] NZFC 5328 [Decision under appeal].
15 November, prompting her to call the Police. The Police attended that evening and issued a five-day Police Safety Order (PSO). Mr Smith was escorted from the property.
[9] The PSO lapsed on 20 November 2023. That day, Ms West applied without notice for a temporary protection order. In granting the order, Judge Goodwin observed:
There is evidence of long and deep rooted physical and psychological violence. The psychological violence is escalating. I am satisfied there is a significant risk to the applicant and that she is at risk of undue hardship in the absence of an order. The threshold for making an order without notice is met.
[10] The order was made on standard conditions, forbidding Mr Smith from engaging in family violence, making contact with Ms West without her consent and possessing weapons.3 He was also directed to attend a non-violence programme.4
[11] Mr Smith denies the allegations underpinning the order, and plans to offer his own, very different, narrative when the Court reconsiders the protection order on notice. In addition — and of particular importance to these proceedings — Mr Smith says Ms West failed to disclose important information in her application. He says Ms West was obliged to tell the Court he would need access to the Nelson property to retrieve the plant and equipment he uses in his business. He also says Ms West should have disclosed she had transferred substantial funds from their joint accounts, leaving him with little to live on in the meantime.
[12] The parties’ lawyers attempted to work out how Mr Smith could access the equipment he needed. Although there was considerable dispute about what he actually required, they reached an agreement on 15 December 2023. The parties settled a list of items a mutual friend would deliver to Mr Smith by 19 December.
[13] On the same day the agreement was reached, Mr Smith filed a without notice application asking the Court to vary or rescind the protection order. Mr Smith argued he should be entitled to attend the property personally so he could identify, locate and
3 Family Violence Act 2018, s 90.
4 Section 188.
collect the items he needed. He proposed that he should be allowed to access the property for four hours in the company of his lawyer.
[14] In a minute issued on 18 December, Judge Ginnen recorded she considered it inappropriate to consider Mr Smith’s application without notice. The Judge agreed Ms West’s without notice application should have referred to Mr Smith’s business and the location of the plant and equipment, and to the fact Ms West had transferred more than $140,000 in joint funds into her own accounts. Nonetheless, the Judge decided it would not be appropriate to rescind the protection order without notice, especially as the parties had agreed the relevant items would be delivered the next day.
[15] On 19 December, 53 items were delivered to Mr Smith, but the following day his lawyer protested that a number were missing. There were further deliveries of items in January 2024, but Mr Smith maintains he has still not received all the plant and equipment he needs.
[16]As a result, Mr Smith continued with his application — now brought on notice
— to vary or rescind the protection order. In particular, he asked the Court to vary the order to allow him to access the Nelson property for four hours to uplift 19 items he said he still requires. He also acknowledged there are a small number of larger items, for example a tractor and a concrete mixer, that both parties may need. Mr Smith proposed the Court direct an arrangement which would allow them to share those items while the protection order remains in force.
[17] By the time Judge Russell came to deliver his decision on 1 May 2024, the parties had agreed that seven of the items on the list would be made available to Mr Smith, meaning the proceeding was concerned only with the remaining twelve.5
District Court decision
[18] Judge Russell held the Act does not permit a temporary protection order to be varied in the way Mr Smith proposed. The Judge noted the Act does not create a general power to vary a temporary order, nor does it permit the Court to rescind the
5 Mr Smith sought to tender evidence that he has still not received all the “agreed” items, but that is not a matter for this appeal.
order for a brief period then reimpose it afterwards.6 While r 34(c) of the Family Court Rules 2002 expressly provides for the variation or rescission of a without notice order, the Judge held an application to vary may only be made if the Act permits the type of variation the applicant seeks.7
[19] Judge Russell considered whether it would be appropriate to rescind the order entirely in light of the non-disclosure Judge Ginnen identified. Judge Russell agreed Ms West was obliged to disclose all relevant matters, and that she had not met that obligation. Nonetheless he considered the information she omitted — about Mr Smith’s need for the tools and the financial transfers she had made — would have made no difference to Judge Goodwin’s assessment of the application.8 Accordingly, he held rescission of the order would be contrary to the principles and purposes of the Act.9
[20] Finally, the Judge held that even if he had jurisdiction to vary the order in the way Mr Smith sought, he would not have done so. He recorded his opinion that the sharing arrangement Mr Smith proposed was unworkable, and agreed it would risk exposing Ms West to further family violence.10
The appeal
[21] The appeal is brought under s 177 of the Act. It is a rehearing.11 While it is incumbent upon Mr Smith to demonstrate an error in the Judge’s decision, in the end it is for me to reach my own conclusion about the merits of the case.12
[22] Ms McCartney KC, for Mr Smith, challenges each aspect of Judge Russell’s decision. She contends he was wrong to hold he had no jurisdiction to grant the variation Mr Smith sought, and wrong to determine that rescission or variation would have been inappropriate in any event.
6 Decision under appeal, above n 2, at [38].
7 At [37].
8 At [35]–[36] and [38].
9 At [36].
10 At [41]–[42].
11 Family Violence Act, s 177(4); and District Court Act 2016, s 127.
12 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
Legal framework
Temporary protection orders
[23] The Act allows temporary protection orders to be made without notice. Temporary orders are typically made in situations of urgency, where the applicant may be in immediate danger if forced to serve the application on the respondent and wait for it to be resolved. As the name suggests, however, a without notice order is only temporary. A respondent who wishes to contest the order may give notice that he or she wishes to be heard before the order is made final. When that occurs, the Act provides the Court must consider the order afresh with both parties participating in the usual way.
[24] Critically, the Act provides that an on-notice hearing must be set down promptly. Section 147(3) provides that when notice is given the Registrar must assign a hearing date. The hearing must be scheduled as soon as practicable and, in the absence of special circumstances, “in no case later than 42 days after receipt of the respondent’s notice”.13
[25] Put another way, the Act prioritises the safety of applicants by permitting without notice orders, but addresses the inherent but unavoidable breach of natural justice by allowing respondents, if they wish, to challenge the temporary order within six weeks. After hearing from both parties, the Court may discharge the order, make the temporary order final (with or without variation) or, if good cause is shown, adjourn the hearing to a fixed time and place.14
[26] An application for a temporary protection order is subject to the same procedural safeguards that govern all without notice applications. Most notably, applicants must disclose all relevant information known to them, whether it helps their case or not. If material information is not disclosed, it is open to the respondent to apply for the order to be rescinded. For example, in Martin v Ryan, Fisher J observed:15
13 Family Violence Act, s 147(3).
14 Section 153(2).
15 Martin v Ryan [1990] 2 NZLR 209 (HC) at 233.
It is trite to say that on all ex parte applications the utmost good faith must be observed. There must be full and frank disclosure of all material facts whether or not they assist the applicant. Failure to observe that duty will normally (although not inevitably): (Elling v Guinness, Mahon & Co 1934 4 All ER 16,
25) results in discharge of the order, whether or not the order would have been justified on other grounds… For this purpose it need not be demonstrated that the non-disclosure was deliberate or that it amounted to an attempt to deceive the Court. The standard is a high one …
[27] The grounds on which a protection order may be made are the same whether it is sought with or without notice — the Court may make an order only if satisfied the respondent has inflicted, or is inflicting, family violence against the applicant, and the order is necessary for the applicant’s protection.16
Conditions of temporary protection orders
[28] Protection orders carry a number of automatic conditions. The first and most important is that the respondent is immediately prevented from engaging in any form of family violence against the protected person.17
[29] There are two additional “standard” conditions — the “standard no-contact condition” and the “standard condition about weapons”.18 In the most general terms, the standard no-contact condition prohibits the respondent from having non-consensual and unauthorised contact with the protected person, while the standard condition about weapons provides the respondent may not possess firearms or hold a firearms licence.
[30] In addition, s 103 permits the Court to impose special conditions. It gives the Court the flexibility to tailor a set of conditions that will help minimise the risk of further family violence. No special conditions have been imposed in this case.
16 Family Violence Act, s 79.
17 Section 90(a).
18 Sections 91–102.
Variation and rescission of temporary protection orders under the Act
[31]Section 108 relevantly provides:19
108 Power to vary protection order
(1)The court may, if it thinks fit, on the application of the applicant or the respondent, vary a protection order—
(a)by varying or discharging any special condition of the protection order:
(b)by imposing any special condition:
(c)by varying or discharging a direction made under section 188:
(d)by making a direction under section 188.
…
(5)If an application is made under this section in respect of a temporary protection order, the Registrar must assign a hearing date, which must be—
(a)as soon as practicable; and
(b)unless there are special circumstances, in no case later than 42 days after the application is made.
[32] Similarly, s 159 provides that either the applicant or respondent may ask the Court to vary the standard condition about weapons. Applications may be made whether the protection order is temporary or final.
[33] It follows the Act permits respondents to apply to vary a temporary protection order, but only in certain, carefully-defined circumstances.
Variation and recission under the Family Court Rules
[34] Ms McCartney argues, in addition to the provisions set out above, that the Court has the power vary a temporary protection order in any other way it might consider appropriate. That power, she submits, is to be found in the Family Court Rules.
[35] This appeal turns on Ms McCartney’s submission that rr 34 and 306 of the Family Court Rules create a general power to vary temporary protection orders.
19 A direction under s 188 is a direction the respondent be assessed for, and/or attend, a non-violence programme.
[36] Rule 306 is part of a suite of rules promulgated in 2019, and which came into force at the same time as the Family Violence Act. It relevantly provides:20
306 Applications without notice
(1)The following applications may be made without notice:
(a)an application under section 75 of the Act for a protection order:
(b)an application under section 125 of the Act for an occupation order or a tenancy order:
(c)an application under section 139 of the Act for an ancillary furniture order or a furniture order.
…
(3) If an order is made against a person on an application without notice, under rule 24(2) or subclause (1), the person may apply under rule 34(c) to vary or rescind the order.
[37]Rule 306 refers to r 34, which provides:21
34 Orders made on applications without notice
If an application without notice is made, and an order is made on the application,—
(a)a Registrar must, if the applicant was not present at the hearing of the application, make a copy of the order available to the applicant without delay:
(b)a copy of the order must, under rule 101 (documents to be served), be served on every person against whom the order is made:
(c)each person against whom the order is made may, at any time, make an interlocutory application to a Judge to have the order varied or rescinded.
[38] For completeness, it is also helpful to consider the Family Court Act 1980. Section 12 provides:
12Proceedings to be brought and dealt with under Family Court Rules
While any Family Court Rules are in force, all proceedings in the Family Court (and all proceedings in the District Court under section 15 of this Act or section 151 of the Oranga Tamariki Act 1989) must be brought and dealt with under those rules, except to the extent that
20 Emphasis added.
21 Emphasis added.
the Act under which the proceedings are brought provides for them to be brought or dealt with under some other enactment.
Positions of the parties
[39] Ms McCartney argues the case is straightforward. Rule 34(c) provides that when an order is made without notice, the person against whom it is made may, at any time, apply to have it varied or rescinded. She submits both steps help mitigate the risks inherent in allowing mandatory orders to be made without notice. Ms McCartney argues no further statutory authority is required — r 34(c) provides an applicant with the right to seek variation, and the Court with jurisdiction to vary.
[40] Ms McCartney places particular emphasis on the fact r 34 permits respondents to ask the Court to vary or rescind a temporary order. The Act does not mention rescission; r 34 has no statutory counterpart. Yet r 34 confers all the power the Court needs to rescind an order if satisfied it should not have been made. Rescission and variation sit side-by-side in r 34(c). Ms McCartney argues the power to rescind and the power to vary were designed to complement one another. Given r 34 provides the Court with substantive jurisdiction to rescind, she submits it must provide identically broad jurisdiction to vary. Ms McCartney argues, in light of that, that the Judge was wrong to hold that separate statutory authority is required if an applicant seeks variation.
[41] Ms Kearns KC, for Ms West, accepts that if the Act had made no mention of variation, in the same way it makes no mention of rescission, r 34(c) would provide the required authority. Ms Kearns submits, however, that Parliament plainly turned its mind to the circumstances in which variation is appropriate. It made detailed provision for respondents to apply to vary a temporary order, but only in certain circumstances, none of which apply here.
[42] Ms Kearns argues that if a respondent is unable to come within s 108(1) or s 159 of the Act, the statutory scheme permits variation only when the Court determines whether the temporary order should be made final. As noted, s 153(2)(b) provides, among other things, that the Court may make a temporary order final with or without variation.
[43] Ms Kearns submits there would have been no need to provide mechanisms to vary special conditions, or the standard condition about weapons, if Parliament had contemplated a general power to vary of the kind Mr Smith seeks. Ms Kearns argues the Judge was right to hold that when rr 34(c) and 306(3) provide for without notice protection orders to be varied, the variation must be one contemplated by the Act.
Discussion
Jurisdiction
[44] The respective roles of the Rules and the Act are not as clear as they could be. On its face, r 34(c) provides that anyone against whom a temporary protection order has been made may seek its rescission or variation. The Rules do not restrict the scope of the application in either case. Rule 306(3) expressly applies r 34(c) to temporary protection orders. Both counsel accept that if those rules were the only provisions governing variation applications, then Mr Smith would undoubtedly have the right to ask the Court to vary the order in the way he did.
[45] The difficulty for Mr Smith is the Act expressly contemplates variation in certain closely defined circumstances, but does not create a general power. The inevitable question, to which there appears no answer, is why Parliament would have taken the trouble to detail particular situations in which respondents may apply to vary a temporary protection order if a general and unrestricted power also exists.
[46] In BDM Grange Ltd v Parker, the High Court, sitting as a Full Court, was faced with an application to strike out a series of common law causes of action. The applicant contended those causes of action arose as part of their employment relationship, meaning the dispute fell within the exclusive jurisdiction of the Employment Relations Authority. Baragwanath J observed:22
[57] Parliamentary counsel are well familiar with the principle expressio unius est exclusio alterius – that express mention of one thing by implication excludes another … If the [Employment Relations Act 2000] conferred on the authority a general jurisdiction to deal with tort cases there would be no need for s 99 … and that section’s limitation of the tort jurisdiction to strike and lockout cases would be inexplicable.
22 BDM Grange Ltd v Parker [2006] 1 NZLR 353 (HC). In-text citations omitted.
[47] The same principle applies here. Perhaps the most telling illustration is s 159. As noted above, in addition to the non-derogable obligation to refrain from further family violence, protection orders are accompanied by two broad categories of standard conditions. In this case, Mr Smith seeks to vary the standard no-contact condition so he can collect his tools. The Act does not contemplate variation of the standard no-contact condition, except when a temporary order is made final. But the Act does allow respondents — including those subject to a temporary order without notice — to ask the Court to vary the standard condition about weapons.
[48] It follows there can be no doubt Parliament turned its mind to whether, and when, it is appropriate for the Court to vary a standard condition. It drew a clear distinction between the standard condition about weapons and the standard no-contact condition; the Court may vary the former, but not the latter.
[49] The same point may be made about the other provisions which permit variation. There would have been no need for any of the provisions in s 108(1) — which permit respondents to seek variation or removal of special conditions or a condition requiring attendance at a non-violence programme — if the law also creates a general power to vary.
[50] Ms McCartney argued there is nothing in s 108 which indicates subs (1) sets out the only circumstances in which variation of a temporary order may be sought. She is right about that: s 159 also permits variation of the standard weapons condition. But Ms McCartney could offer no suggestion as to why those provisions would have been necessary if a general power already existed by virtue of r 34(c).
[51] I agree with Judge Russell that the right to seek variation in r 306(3) — which was tailored to without notice orders under the Family Violence Act — was designed to cross-refer to the kinds of variation permitted by the Act. The Judge’s interpretation is the only way the Act and the Rules can be read together without redundancy. Put another way, r 306(3) creates the procedural mechanism by which an application under
ss 108(1) or 159 may be made,23 but the metes and bounds of that application are governed by the Act.
[52] Nothing in the Parliamentary record explains why the Act provides that respondents may seek to vary some conditions of a temporary protection order but not others. But prohibiting contact without consent lies at the heart of the protection order regime. It will often be possible to vary an order in the ways contemplated by ss 108 and 159 without directly affecting the applicant. The same cannot be said for variation of the standard no-contact condition.
[53] In any event, the statutory scheme contemplates that a contested temporary order should only be regarded as a holding mechanism. If the existence of the order, or the terms on which it was made, are challenged, the Act requires the Court to move promptly to offer a substantive hearing at which all relevant aspects of the order may be considered.
[54] It is unsatisfactory for a contested temporary order to remain in force for any length of time. Section 147(3) provides that in the absence of special circumstances respondents are entitled to a hearing within six weeks. It is a matter of some concern that in the present case no fixture has yet been allocated. Indeed, on its face the fact no date has been allocated appears to breach s 147(3). While the fixture may, in special circumstances, fall outside the six-week window referred to in s 147(3)(b), a date must nonetheless be allocated. Ms McCartney advises the Registry has indicated the application for a final order is unlikely to be heard before 2026. A delay of that magnitude would be unacceptable, and cannot be reconciled with the requirements of the Act.
[55] It is true some aspects of this proceeding are complex, and the Court will be obliged to confront a detailed and vigorously-contested factual background. Nonetheless, proceedings of this nature are urgent, and must be dealt with accordingly. Parliament expected contested applications would be heard and determined within a few weeks at most. No doubt it considered any short-term prejudice arising from the
23 Along with applications to vary without notice tenancy and furniture orders made under ss 125 and 139.
conditions of a temporary order could be addressed by ensuring a final and substantive determination would follow quickly.
[56] Procedural complications and resourcing constraints appear to have subverted that clear Parliamentary intent. Whatever the explanation, the kind of delay evident in the present case is intolerable. Speed is an essential element of the statutory scheme. In this case a prompt substantive hearing, which can address all Mr Smith’s concerns, is a far better option than a piecemeal hearing. While the application was, at one level, confined to possession of the contested tools, the material placed before the Court sprawled well beyond that narrow issue. I urge the Registry to facilitate, and timetable, an urgent fixture.
Rescission
[57] It is unclear whether Mr Smith maintains the Judge should have used his power to rescind the order to allow Mr Smith to visit the property temporarily, with a view to its reinstatement once the outstanding items had been collected. Judge Russell noted that in the Family Court Ms McCartney’s submissions were directed to variation.24
[58] In any event, it is sufficient to record my agreement with Judge Russell that neither the Act nor the Rules contemplate temporary rescission followed by immediate reinstatement. The power to rescind is designed for situations where the order should not have been made at all. It is not a power to suspend. Moreover, it would be an improper use of the power to rescind if it were deployed to circumvent restrictions Parliament has placed on the right to seek variation.
The merits
[59] My conclusion that there is no general power to vary a temporary order is sufficient to dispose of the appeal. Nonetheless, I have examined Judge Russell’s alternative conclusion, namely that even if he had the power to vary the order, he would not have done so. I agree the variation Mr Smith proposed would, in any event, have been inappropriate.
24 Decision under appeal, above n 2, at [20].
[60] In the Family Court the parties filed bundles of documents totalling 524 pages, and much of the affidavit evidence was bitterly contested. The parties’ positions were irreconcilable in the absence of cross-examination and detailed factual findings, which were not available to the Judge on an interlocutory application.25
[61] Judge Russell focused only on the items Mr Smith suggested he and Ms West should share. He concluded the proposal was impractical. Sharing would require ongoing contact, and Mr Smith had not explained how, in practice, that could occur without compromising the order.
[62] Ms McCartney criticised this part of the Judge’s decision on a number of bases. She argued, first, that the Judge should have taken into account Mr Smith’s evidence denying there had been any family violence in the relationship.
[63] That ground requires little discussion. The starting point for any application to vary a protection order is that the order itself was properly made. It follows that the need for the order, and accordingly applicant’s ongoing need for protection from family violence, is taken as read. Any application which may have the effect of subverting the order will be impermissible. Mr Smith’s rejection of Ms West’s underlying allegations will have to await the on-notice application for the temporary order to become final.
[64] Next, Ms McCartney argued Judge Russell took no account of the consequences of the temporary order for Mr Smith. She submitted Mr Smith had already lost his home and primary business, and that the refusal to vary the order meant he has also been denied access to tools he needs to work. She argued the Judge should also have considered the significant financial imbalance which presently exists between the parties.
[65] It is true the Judge did not expressly refer to all matters raised by Ms McCartney on Mr Smith’s behalf. Nonetheless, there can be no suggestion he overlooked the basis on which the application was brought. The variation was sought
25 Oral evidence is exceptional on interlocutory applications, and the parties agreed the hearing should proceed on the basis of the affidavits and counsel’s submissions: see Decision under appeal, above n 2, at [13].
precisely to enable Mr Smith to access tools he says he needs. The Judge listed the items Mr Smith sought for his own use, and those he proposed should be shared.26 In concluding Mr Smith’s proposal risked exposing Ms West to ongoing contact, and accordingly further family violence, the Judge conducted the kind of discretionary assessment Family Court Judges undertake every day. He made no error in doing so.
[66] Finally, Ms McCartney submitted the Judge took irrelevant factors into account. She said Ms West requires the “shared” items only irregularly or infrequently, whereas Mr Smith needs them all the time.
[67] I do not accept that submission. Even if “greater need” were the operative test, the Judge could not determine which of the parties needed the items more on the basis of the material before him. In effect, Mr Smith asked the Judge to resolve heavily-contested questions of fact, address the merits of the protection order and assess the respective requirements of the two parties’ businesses. None of those matters were well-suited to resolution at an interlocutory stage. The nature of the factual disputes highlights the need for a prompt substantive hearing.
[68] I am satisfied the Judge made no error in his approach, and that he exercised his discretion appropriately. Even if the Act permitted it, there was little scope, on an interlocutory application, for the variation Mr Smith sought.
Conclusion
[69] It is immensely regrettable that the parties’ relationship has deteriorated to the extent where they agree on so little, and where their exchanges are infused with such palpable antagonism. The case has become increasingly complex, both factually and procedurally. I understand at least one major interlocutory issue — the question of disclosure — remains to be determined before the Family Court can consider the final protection order, and it appears the Property (Relationships) Act proceedings are infused with similar intensity and animosity. There is a risk that much of what Mr Smith and Ms West have built over the last 33 years will be lost in the process.
26 At [17]–[18].
[70] Short of the parties taking a step back and finding an alternative way to resolve their differences, it is imperative the proceedings move forward as quickly as possible. Despite the intensity of the dispute, Mr Smith has the right to a substantive determination as soon as practicable. I urge the Family Court to set the final protection order application down urgently, and to direct completion of all intervening steps, including any outstanding interlocutory matters, on the tightest possible timetable.
[71] As for the present appeal, I consider Judge Russell was right in both respects. Neither the Act nor the Rules create a general power to vary a temporary protection order. Some conditions of a temporary order may be varied, but the standard no-contact condition may not. The contentions Mr Smith wishes to advance must be determined as part of the Court’s final ruling under s 153 of the Act.
[72] Further, I agree with Judge Russell that, on the material before him, he could not be confident the variation Mr Smith sought was appropriate. The Judge had no basis to prefer the analysis offered by Mr Smith, either in terms of who needed the items more urgently than whom, or as to whether the proposed arrangement could be implemented without the risk of further family violence. It follows the appeal must be dismissed.
Costs
[73] Both parties sought costs, and both appear to accept costs should follow the event. I do not regard Mr Smith’s application, at least on the question of jurisdiction, to have been lacking in merit — the appeal has required examination of the difficult interplay between the Rules and the Act. This case has provided a worthwhile opportunity to clarify a respondent’s rights when a temporary protection order is made.
[74] On the other hand, Mr Smith’s substantive challenge did not get off the ground. It is appropriate Ms West receives an award as the successful party. There is no basis for costs to be awarded on anything other than a strict 2B basis, and I make an order accordingly.
Result
[75]The appeal is dismissed. I award costs to Ms West on a 2B basis.
Boldt J
Solicitors:
Hamish Fletcher Lawyers, Nelson for Appellant Shieff Angland lawyers, Auckland for Respondent
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