Carrington v Carrington
[2018] NZHC 1113
•18 May 2018
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.
The position of the parties
[9] I have now heard back from the parties. Regrettably, they have been unable to arrive at an agreed position. That means I am required to impose conditions, which may not be preferable to either side.
[10] Nevertheless, I consider conditions are necessary. John has not seen his mother since May 2017. That remains a deeply concerning and unsatisfactory state of affairs, for all parties concerned.
[11] Ms Ebborn for Richard, the respondent, advises on 16 February 2018 a proposal for contact was made. That offer involved Chris,2 John and Richard’s brother, who has not been involved at any stage of these proceedings, facilitating a visit. Chris and his partner would meet with John and his partner over the weekend for lunch at Chris’ house. Richard would make arrangements for Mrs Carrington to be at Chris’ house. There were two conditions on that proposal:
(a)John was not to start any discussion with Mrs Carrington or any of the other family about family conflict (past or present), and if raised by Mrs Carrington, he was to deflect the conversation.
(b)John was not to raise any other subjects which might upset Mrs Carrington, for example grievances with rest home staff, the doctor, or Court proceedings.
2 As with the other names, I have anonymised this sibling’s name through the use of a fictional name.
[12] If successful, it was proposed that a further visit the following weekend could take place. After four successful visits, Richard would consider “a suitable level of trust [had] been re-established” and would be prepared to discuss arrangements for unsupervised visits.
[13] An alternative proposal was also contained in that email. Richard consented to a professional supervisor overseeing visits until there was a level of trust that John’s problematic behaviour would not be repeated.
[14] Ms Ebborn advises that John rejected those proposals. He was unhappy at the requirement for a family member to be present. He also required that he must be able to “answer his mother’s questions honestly”, and expressed that it would be dishonest to explain he had been busy when she asked where he had been.
[15] There the matter lay until I released my judgment. A further enquiry was made following judgment, but John rejected professionally supervised contact, as I had suggested. He proposed that his partner act as supervisor. He also reiterated that he was not willing to “lie” to his mother if asked about his absence.
[16] Richard is unwilling to consent to John’s partner acting as supervisor. She apparently assisted John undermine the trespass notice issued by Mrs Carrington’s rest home. Additionally, he does not believe she is likely to challenge or report any negative behaviour by John, should it occur.
[17] Ms Ebborn for Richard therefore submits that the wording of the condition fixed by Judge Hunt in the Family Court should remain unchanged. She underlines that it is not the wording of the condition, but rather the attitude of John, which is preventing contact from occurring. She advises that Richard is willing to meet with John to speak about visits. Additionally, she points out Chris is the only sibling who has not given evidence in this proceeding. He remains open to facilitating contact between John and Mrs Carrington. Richard, in his capacity as welfare guardian, consents to this arrangement. As such, Ms Ebborn submits this outcome could be achieved without any amendment to the wording of the condition currently in place.
[18] Mr Mark, who represents John, advises John wanted to arrange regular weekly contact with his mother. Prior to these proceedings, it appears he would see his mother at least three times a week. But he is uncomfortable about the need for his contact to be monitored. He does not want contact to be in the presence of an independent supervisor, partly because of the logistics involved, and partly because of the expense they would be put to. He also does not want to exercise contact in the presence of his siblings, because that has led to conflict in the past.
[19] John instead suggests that his partner act as supervisor. As noted, Richard continues to oppose this suggestion.
[20] John also remains strident about the need to be honest in response to any questions from his mother about why he has not been coming to see her. He considers he cannot answer honestly if he cannot talk about these proceedings.
[21]In short, contact continues to be obstructed by these two factors.
What condition should I impose?
[22] Plainly, little progress has been made since I issued judgment. I largely face the same dilemma as I did at the hearing.
[23] I have considered whether, as Ms Ebborn suggests, to simply confirm the condition made by Judge Hunt in the Family Court. This read:3
“A final protection order is to issue against [John] in favour of [Mrs Carrington]. A condition of the order will be that contact between [John] and [Mrs Carrington] is to be on such terms including but not limited to time, place and circumstances as agreed to by [Richard]. For the avoidance of doubt this may include supervision by [Richard] or someone agreed to by [Richard] as suitable to undertake the task. It is to be served by the Police.
I do not see any value to [John] being directed to attend a programme and he is not required to do so. It is obvious what he needs to do. That is to accept that sound decisions have been made for his mother and that it is his behaviour that needs to change.
3 Carrington v Carrington [2017] NZFC 4817 at [104]-[106].
I would like to see the situation improve, so [John] can see his mother on a regular basis. I am not prepared to limit [John’s] visits at this stage to a monthly occurrence, but it may be that is what is required. The responsibility for making that decision properly rests in [Richard] in consultation with [Mrs Carrington] and those responsible for her care and addressing her needs, including the rest home. It will be a factor of [John’s] decision about how he needs to conduct himself.”
[24] I largely agree with Ms Ebborn that the main obstacle to contact being facilitated is the attitude of John. It is reasonable for Richard to not consent to contact being supervised by John’s partner. If correct, and no one has contradicted it, she has previously assisted John to undermine the rest home’s trespass notice, and is not well placed to challenge John or report any inappropriate behaviour. She is not a neutral party. Richard is also right to be concerned about John’s insistence that he be “honest” with his mother. That insistence betrays a startling lack of insight into the reasons why a protection order was imposed in the first place.
[25] Richard is Mrs Carrington’s welfare guardian and it is appropriate that he has an important role in her care and welfare. But I appreciate the uncomfortable power dynamic leaving decision-making to Richard must have created. There must be an element of pride for John in refusing to pander to standards set by his brother, who he has been embroiled in Court proceedings with.
[26] To mollify that dynamic, I consider that while Richard should retain a decision- making role, the conditions of access should be more prescriptive. I am attracted to the proposal made on 16 February 2018. I am conscious that this will require John to deflect any questions about Court proceedings or family conflict, and that this condition may result in John refusing to participate in visits. But in my view that condition is necessary. The type of behaviour it prevents is the sort which precipitated the need for a protection order in the first place. John must accept his mother’s condition and that making inflammatory or contra-indicated comments will only serve to harm her welfare. If John can accept that, he will be able to spend quality time with his elderly mother, who he plainly has a close relationship with.
The condition
[27] I order that the following conditions apply to the protection order in favour of Mrs Carrington made in respect of John:
(a)Chris shall facilitate interactions between John and Mrs Carrington.
(b)To this end, visits shall occur weekly or fortnightly, at the convenience of the relevant parties.
(c)Chris and John’s partners may be present at these visits, which should take place at Chris’ house or other suitable locations.
(d)John must not start any discussion with Mrs Carrington or any other person present about family conflict (past or present), and if raised by Mrs Carrington he should deflect the conversation. He also must not raise any other subjects that might upset Mrs Carrington, for example grievances with rest home staff and his siblings or these Court proceedings.
(e)Chris should report to Richard after each meeting.
(f)If four consecutive, successful visits occur, an unsupervised visit may occur. Following this visit, rest home staff must report to Richard about Mrs Carrington’s state. If there are no concerns, weekly or fortnightly unsupervised visits may continue.
(g)Should, following advice from Chris or the rest home staff, Richard consider at any time that John is not complying with the conditions or having a negative impact on Mrs Carrington’s welfare, he may cancel these arrangements. At that point, Richard should apply to the Family Court for variation of these conditions.
The costs applications
[28] I turn now to consider costs on the proceeding. Costs have not been agreed, either in respect of the Family Court proceeding or the appeal in this Court.
[29] Ms Ebborn for Richard seeks costs of $31,316.82 in respect of the proceedings in the Family Court, and of $9,372.17 for the proceedings in this Court. These figures are slightly less than the costs Richard would be entitled to on a 2B basis in each Court. Costs are sought on the basis Richard was the successful party in both proceedings, and John failed in the major aspects of his case. Additionally, Ms Ebborn underscores that on 21 December 2017 a proposal was made to John in an attempt to settle.
[30] Costs are also sought by Mr Adams as lawyer for the subject person, Mrs Carrington. He has rendered an invoice of $6,715.88 which he submits should be met by the parties equally.
[31] Mr Mark for John submits costs in the Family Court should lie where they fall, to reflect the different approach taken to costs in that Court. But while he challenges the quantum sought, he accepts costs in this Court should follow the event. He also accepts Mr Adams’ suggestion that his costs be split between the parties.
Principles
[32] As regards costs in the High Court, while costs are at the discretion of the Court,4 there is a longstanding and “fundamental principle” that in all general Courts in New Zealand costs should follow the event.5 There is also a strong implication that a Court is entitled to apply the detailed costs regime provided in the High Court Rules 2016 in the absence of some reason to the contrary.6
[33] There is no disagreement here that costs should follow the event, and that Richard, as the successful party, is entitled to receive about two-thirds of the costs
4 High Court Rules 2016, r 14.1.
5 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].
6 Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27], cited with approval in Manukau Golf Club Inc v Shoye Venture Ltd, above n 5, at [7].
deemed reasonable having regard to the complexity and significant of the case and the time reasonably required to be taken; in this case on an approximately 2B basis.
[34] Failing to refuse, without reasonable justification, an offer for settlement may justify an increase in costs awarded,7 but no increase is sought here. In any event, I do not consider the rejection was unreasonable, given the offer sought for John to withdraw the appeal and pay a slightly reduced costs sum to Richard. Assessed at the time the offer was made, John may reasonably have considered there was merit to his appeal.
[35] As for costs in the Family Court, they are at the discretion of the Court,8 though regard may be had to r 14 of the District Court Rules 2014. Under those rules, the party who fails with respect to a proceeding should pay costs to the successful party, fixed by applying the appropriate daily recovery rate.9 But both counsel agree that this principle tends to be exercised more conservatively in Family Court matters.
Assessment
[36] I deal first with the costs award for the appeal in this Court. Costs are sought for three matters: commencement of the response to the appeal, preparation of written submissions, and appearance at the one day hearing. On a 2B basis, this would result in costs of $10,035. But as noted, costs of only $9,372.17 are sought.
[37] Mr Mark challenges this allocation on the basis the costs allocated for preparing written submissions, being $6,690, exceed the actual costs incurred for that step. That submission accords with the principle that an award of costs should not exceed the costs incurred by the party claiming costs.10
[38] I am satisfied costs on a 2B basis for the appeal in this Court, adjusted to reflect the actual costs incurred in preparing written submissions, are reasonable, and reflect
7 High Court Rules 2016, r 14.6(3)(b)(v).
8 Family Court Rules 2002, r 207.
9 District Court Rules 2014, r 14.2.
10 High Court Rules 2016, r 14.2(1)(f).
the relative complexity of the proceedings and the time which would reasonably have been required to be taken. This is a sum of $8,360.
[39] As for the proceedings in the Family Court, I note that Judge Hunt recorded in his judgment that:11
“Costs are reserved but I warn [John] that, having regard to my findings, an award of costs is likely to be in favour of [Richard] as I consider much of this litigation has been as a result of [John’s] conduct and his unnecessary insistence that matters proceed in this way.”
[40] I broadly agree with that characterisation of the proceedings, at least for present purposes. While I accept, as Mr Mark submits, John is motivated by what he views as his mother’s best interests, he is highly reckless or wilfully blind to the true state of affairs; that his behaviour is damaging to her wellbeing and has caused her great distress. He has remained belligerent throughout the proceedings, and has not seen his mother in about a year because he stubbornly refuses to comply with what his siblings, the rest home, and medical experts all consider her welfare requires. This blind stubbornness has thwarted any possibility of resolution, and in my view colours Mr Mark’s description of his behaviour as genuine and reasonable.
[41] I agree that costs on a 2B basis are also appropriate for the proceedings in the Family Court. Costs of $31,316.82 are sought, a figure which is slightly less than the scale costs for the steps claimed, and which includes disbursements. I would make adjustment to that sum for the following factors, identified by Mr Mark:
(a)three separate without notice applications were made at the commencement of the proceedings, requiring three separate judicial conferences, whereas one could have been made; and
(b)one day has been claimed for the preparation of costs submissions, which is the same as is allocated for substantive submissions.
11 Carrington v Carrington, above n 3, at [109].
[42] I agree that these steps were unnecessary, and that the costs of only one of the applications should be allocated. Additionally, it is not the practice of the Court to award costs on costs.12
[43] Finally, Ms Ebborn claims separately for preparation of written submissions, the bundle for hearing and affidavits, and “preparation where case proceeds to hearing”. I do not consider a separate costs allocation for submissions and the bundle is warranted; those steps relate to an interlocutory proceeding. Rather, I consider those matters are properly captured by the generic preparation step.
[44] I therefore am willing to award costs for the District Court proceeding as follows:13
Step
Allocated days
Cost
5. Preparing, filing and serving originating application
2
$3,560
6. Preparing and serving notice of opposition to s 103 application
1.5
$2,670
9.8 Filing and serving memorandum in anticipation of judicial conference
0.25
$445
9.9 Appearance at judicial conference
0.3
$534
16.1 Preparation of affidavits or written or oral statements of evidence to be used at hearing
2.25
$4,005
17.1 Preparation where case proceeds to hearing
4
$7120
18.1 Appearance at hearing for principal counsel
2
$3,560
12.3
$21,894
[45] I also consider the disbursements claimed, of $1,570.02 plus GST, are reasonable.
12 See Delegat v Norman [2014] NZHC 1099 at [33] and the cases cited therein.
13 For category 2 proceedings in the District Court, the appropriate daily recovery rate is $1,780 per day.
[46] As for the costs of Mrs Carrington’s lawyer, Mr Adams, I agree with Ms Ebborn that given what I have said generally about the appropriateness of a costs award against John, the costs of Mr Adams should be covered by John.
Orders
[47] I order that the following conditions apply to the protection order in favour of Mrs Carrington made in respect of John:
(a)Chris shall facilitate interactions between John and Mrs Carrington.
(b)To this end, visits shall occur weekly or fortnightly, at the convenience of the relevant parties.
(c)Chris and John’s partners may be present at these visits, which should take place at Chris’ house or other suitable locations.
(d)John must not start any discussion with Mrs Carrington or any other person present about family conflict (past or present), and if raised by Mrs Carrington he should deflect the conversation. He also must not raise any other subjects that might upset Mrs Carrington, for example grievances with rest home staff and his siblings or these Court proceedings.
(e)Chris should report to Richard after each meeting.
(f)If four successful visits occur, an unsupervised visit may occur. Following this visit, rest home staff must report to Richard about Mrs Carrington’s state. If there are no concerns, weekly or fortnightly unsupervised visits may continue.
(g)Should, following advice from Chris or the rest home staff, Richard consider at any time that John is not complying with the conditions or having a negative impact on Mrs Carrington’s welfare, he may cancel
these arrangements. At that point, Richard should apply to the Family Court for variation of these conditions.
[48] I make an order of costs in favour of the respondent of $8,360 in respect of the appeal in this Court. Any disbursements may be fixed by the Registrar.
[49] I make an order of costs in favour of the respondent of $21,894 in respect of the Family Court proceedings. I also order the payment of disbursements of $1,570.02 plus GST.
[50] Finally, I order that the appellant pay the costs of the lawyer for the subject person, being $6,715.88.
Moore J
Solicitors/Counsel:
Mr Mark, Kerikeri
Ms Ebborn, Christchurch Mr Adams, Kaitaia
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