Carrington v Carrington - [2018] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI TERENGA PARĀOA ROHE

CIV-2017-488-000089

[2018] NZHC 1113

BETWEEN
JOHN CARRINGTON

Appellant

AND

RICHARD CARRINGTON

Respondent

Hearing: (On the papers)

Counsel:

Richard Mark for the Appellant Erin Ebborn for the Respondent

John Adams as lawyer appointed for Mrs Carrington

Judgment:

18 May 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 18 May 2018 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

CARRINGTON v CARRINGTON [2018] NZHC 1113 [18 May 2018]

[1] In a judgment of 22 March 2018, I dismissed John Carrington’s appeal against a protection order made in the Family Court at Whangarei.1 I concluded John’s behaviour towards his elderly mother amounted to a pattern of psychological abuse which required the imposition of a protection order.

[2] I reserved the question of what conditions of access should be imposed on the protection order, and encouraged the parties to confer with a view to formulating a consent memorandum. No agreement has been reached, but counsel have filed separate memoranda on possible conditions of access.

[3] This judgment resolves the access condition, as well as the question of costs on the proceedings in the Family Court and in this Court.

Background

[4] Mrs Carrington is in her mid to late 80s. She is a resident in a Northland rest home, and suffers from senile dementia.

[5] In the Family Court, Judge Hunt had added as a condition of the protection order that any contact John had with his mother would be on terms agreed to by his brother Richard, who holds an enduring power of attorney over Mrs Carrington. He implored John to recognise that his behaviour needed to change, and considered that the amount of access John had would be a function of his decision about how to conduct himself.

[6] I agreed. Efforts were made at the hearing before me to arrive at a workable, monitored access arrangement. There were two primary obstacles. First, the events precipitating this appeal have caused a rift in John’s relationship with his siblings. There was unwillingness on his side for his contact with his mother to be supervised by one of the siblings. Secondly, John has been trespassed from the rest home. Barring any change, contact between John and his mother would need to take place at a location outside the rest home.

1 Carrington v Carrington [2018] NZHC 505.

[7] At the hearing, my preliminary view was that an independent third party should be engaged to monitor contact; someone who enjoys the confidence of all parties and who is suitably qualified to recognise abusive conduct should it recur, and who is capable of providing an independent assessment in the form of a report, should that be required.

[8] I then directed the parties to consult with a view to formulating a consent memorandum setting out the conditions which the parties agree may be included.

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 Carrington v Carrington

Details

AGLC: Carrington v Carrington [2018] NZHC 1113
Case: [2018] NZHC 1113
Decision Date: 18 May 2018

CaseChat Overview and Summary

In Carrington v Carrington, the High Court was asked to determine the conditions for a protection order against John Carrington, who had been found to have psychologically abused his elderly mother, Mrs Carrington, who suffers from senile dementia. The court was also required to decide the costs of the proceedings in the Family Court and the High Court. The primary legal issue was what conditions should be imposed on John's contact with his mother to prevent a recurrence of the psychological abuse. The court considered the parties' proposals and decided that the conditions should be more prescriptive to ensure that John's behaviour did not harm his mother's welfare. The court ordered that Chris, John's brother, should facilitate interactions between John and Mrs Carrington, and that visits should occur weekly or fortnightly at Chris' house or other suitable locations. John was not to start any discussion with Mrs Carrington or any other person present about family conflict or other subjects that might upset Mrs Carrington. Chris was to report to Richard after each meeting. If four consecutive, successful visits occurred, an unsupervised visit might occur. Should Richard consider at any time that John was not complying with the conditions or having a negative impact on Mrs Carrington's welfare, he could cancel these arrangements and apply to the Family Court for variation of these conditions. The court also decided the costs of the proceedings in the Family Court and the High Court. The court ordered that the respondent was to be paid costs of $21,894 in respect of the Family Court proceedings, and $8,360 in respect of the appeal in the High Court. The court also ordered that the appellant pay the costs of the lawyer for the subject person, being $6,715.88.

Orders