Carrington v Carrington - [2018] NZHC 505

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 505

BETWEEN
JOHN CARRINGTON

Appellant

AND

RICHARD CARRINGTON

Respondent

Hearing: 12 February 2018

Appearances:

Richard Mark for the Appellant Erin Ebborn for the Respondent

John Adams as lawyer appointed for Mrs Carrington

Judgment:

22 March 2018

JUDGMENT OF MOORE J

This judgment was delivered by me on 23 March 2018 at 3:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

CARRINGTON v CARRINGTON [2018] NZHC 505 [22 March 2018]

Contents

Paragraph Number

Introduction.............................................................................................................. [1]

Factual background................................................................................................. [5]
Family Court decision
Protection order................................................................................................... [40]
Application to review........................................................................................... [45]
Interim injunction................................................................................................. [46]

Jurisdiction............................................................................................................. [47]

Grounds of appeal................................................................................................. [52]
Issues for determination........................................................................................ [55]
Analysis
(a)Is there domestic violence?
Legal principles....................................................................................... [58]
John’s case............................................................................................... [68]
Application of principles......................................................................... [73]
(b)Is a protection order necessary?............................................................... [97]

Review of Richard’s EPOA

Legal principles.................................................................................................. [105]
John’s complaints............................................................................................... [114]

Protection order conditions................................................................................. [121]

Result.................................................................................................................... [127]
Costs...................................................................................................................... [129]

Introduction

[1] Mrs Carrington is in her mid to late 80s. She suffers from senile dementia and is currently a resident in a Northland rest home. She has six children. She appointed her oldest son, Richard Carrington (“Richard”), as her attorney. Tensions have since arisen between the siblings which resulted in Richard applying for a protection order against his brother John in favour of Mrs Carrington.1

[2] Richard, supported by three of his sisters, was of the view a protection order was necessary because he believed John’s contact and interactions with his mother were causing her significant distress and amounted to psychological abuse. While supporting their brother’s continued relationship with his mother the siblings claimed future contact required supervision and a protection order would be an effective tool in mitigating the adverse effects of John’s engagement with his mother.

[3] The application came before Judge M J Hunt in the Family Court at Whangarei. He granted the protection order against John in favour of Mrs Carrington. He imposed a condition that contact between John and his mother was to be on such terms as agreed to by Richard.

[4] John not only appeals that decision but also seeks to have Richard replaced as his mother’s welfare guardian.

Factual background

[5] The background set out below represents an attempt to draw together those aspects of this case which are largely uncontested. However, given the nature and breadth of the dispute it is inevitable that certain central features are hotly disputed. Where that is the case I have identified the point in issue.

[6]Mrs Carrington has lived in the rest home since 2 September 2016.

1 All family names are fictitious in order to preserve the anonymity of the parties. The names used in this judgment have been agreed to by the parties.

[7] A year earlier, on 27 August 2015, she executed an enduring power of attorney (“EPOA”) in favour…

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 505
Case: [2018] NZHC 505
Decision Date: 22 March 2018

CaseChat Overview and Summary

The High Court of New Zealand dismissed an appeal against a protection order made in the Family Court. The appellant, John, is the son of Mrs Carrington who suffers from senile dementia. John's mother appointed Richard, another son, as her attorney under an enduring power of attorney. The appellant's appeal challenged the Family Court's decision to make a protection order against him in favour of his mother and to review Richard's decisions as attorney. The appeal also sought to have Richard replaced as his mother's welfare guardian. The Family Court found that John's conduct towards his mother amounted to domestic violence and that a protection order was necessary. The Court also dismissed John's application for review of Richard's decisions as attorney. The High Court found that there was sufficient evidence to support the Family Court's finding of domestic violence. The Court also found that a protection order was necessary to protect Mrs Carrington from the harmful consequences of John's conduct. The Court further found that there was no basis to review Richard's decisions as attorney. The Court dismissed the appeal against the protection order and the application to remove Richard as attorney. The Court also directed the parties to consult with a view to formulating a consent memorandum containing the conditions which the parties agree may be included for the protection order. If the parties were unable to agree, the Court directed that memoranda as to costs were to be filed and served within 20 working days of the date of this judgment.

Orders