Carrington v Carrington
[2018] NZHC 505
•22 March 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 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 of Richard. This was with the agreement of all Mrs Carrington’s children, including John. In early 2016 she fractured her hip and, as a result, spent some time in hospital. Following her rehabilitation and with the agreement of her children, Mrs Carrington was discharged into John’s care. She lived at his home from mid-June 2016.
[8] The hospital discharge notes recorded that despite being generally alert, Mrs Carrington was not orientated as to time, date or place. The results of a cognitive assessment revealed that she had significant deficits including difficulties remembering new information, planning and problem solving, particularly when confronted with something new which was not routine. The report noted that John’s home was familiar to her but that she required supervision for showering and dressing. The report also recorded that she used a stroller but required supervision due to her confusion and tendency to become lost in the ward environment.
[9] A direction, apparently given by Mrs Carrington’s general practitioner, was that she should not be permitted to drive until properly assessed.
[10] As Judge Hunt observed, these matters assumed significance because they provided guidance and direction in respect of Mrs Carrington’s needs for rehabilitation and care.2
[11] It appears that the decision to release Mrs Carrington into John’s care was not made without some reservations being held by family members; reservations which found expression shortly after Mrs Carrington moved in with John. For example two of her daughters, Jane and Susan, noted that when they visited their mother they observed signs she was unable to care for herself. Both described an incident when, on arriving at John’s home, they found their mother attempting to cook dinner while blithely unaware she had soiled herself.
[12] Another contentious issue, which assumed some prominence at the hearing, was John’s support and encouragement of his mother’s apparent ambition to drive.
2 Carrington v Carrington [2017] NZFC 4817 at [19].
Contrary to Mrs Carrington’s general practitioner’s advice John took his mother driving on at least three occasions. On one excursion she made fundamental errors which included driving on the wrong side of the road. On another she collided with a sign. According to John he engaged a driving instructor friend, H, to assess his mother. However, H did not give evidence at the hearing.
[13] Another incident involved John allowing Mrs Carrington to drive a short distance from one property to another on her own. Instead she drove to the supermarket unaccompanied. John justified these actions by claiming he was supporting his mother’s wishes, noting the relatively low traffic volumes in the area and the modesty of the distances driven.
[14] According to John, in August 2016 his mother told him she wished to move out of his home to re-commence living on her own independently.
[15] Some sense of the widening gulf between the siblings on the issue of their mother’s care is revealed by the contents of emails sent between the two brothers; parties to this proceeding, John and Richard. One in particular illustrates this. In advising Richard of his mother’s intention to move out of his home to live independently, John wrote:
“Mum has decided she wishes to live at her home.
The thought pattern is to sell the car and hopefully maybe buy a [mobility scooter]. I’m encouraging mum on this thought.
Mum is struggling with the family pressure not to allow her to drive.
Mum did a test with the AA driving instructor and he said mum is a safe driver and is happy to put mum through a driving test.
I am extremely disappointed in our family being so interfering and cruel in not allowing mum the grace to live her life to the fullest.
…
Mum does not use a walking stick and can drive a car safely but due to your interference and family mum’s days of growing old have been made uncomfortable. I’m [disgusted] in our family doing this …
Mum feels that [by] moving home she will have the last chance of independence with dignity so I hope you allow mum this opportunity.
I [know] you think you are doing what is best for mum but mum has proven you and the medical system that you are wrong but are [too] pig headed to allow our mum some grace.
…
I [know] putting this in writing is something you can never take back and I [know] you are concerned for your right reasons but I’m so disappointed in you and at this moment very ashamed of your actions [Richard].
It was a sad day when you became power of attorney and [I] wish you had resigned.
…”
[16] It is plain from this and other correspondence and evidence that Mrs Carrington’s children wish only the very best for their mother. However, they vehemently disagree on what constitutes her proper care. There can be little doubt that John, in his actions towards his mother, has been motivated by loyalty and love. However, his insistence in giving effect to what he claims are his mother’s aspirations for greater independence lie at the centre of his disagreement with his other siblings, particularly Richard.
[17] Mrs Carrington moved back to her home but only for two weeks before Richard exercised his powers under the EPOA and arranged for her to be admitted to a local rest home. A health practitioner’s certificate dated 2 September 2016 concluded Mrs Carrington was mentally incapable, as she lacked the capacity to understand the nature of decisions about her safety and to remain independently safe and well under her own care within her home, and to foresee the consequences of her decisions about safety, nutrition and self-care. It is common ground that John was not consulted on this decision. The first he knew was when, on returning from out of town, he visited his mother’s home and discovered she was not there. He rang his siblings who told him that she was in the rest home and should be left alone for a week or so to enable her to acclimatise to her environment. According to John he ruminated over this advice before deciding to ignore it and going to visit his mother. He described her as distraught and telling him:
“When an animal gets sick, the other family animals gather around to nurture. I have been stuck in this place and you are the only one who has come to see me and nurture me.”
[18] From a review of the evidence it would seem that these events, more than any other, galvanised John in a way which set him against his siblings.
[19] Following her admission, he visited his mother and took her out on various excursions. Examples of John’s determination to accommodate his mother’s wishes despite the views of others include occasions when he took her from the rest home without prior arrangement on excursions including boating and walks, regarded by others as exceeding her abilities. Concerns were registered that he did not properly appreciate his mother’s well documented limitations, particularly her cognitive deficits and her lack of mobility.
[20] On 26 November 2016, two months after Mrs Carrington’s admission, the rest home issued a trespass notice against John. This would be the first of two. The clinical manager of the rest home said this decision was made by management in consultation with the family and arose out of John’s intimidating behaviour towards the staff. The rest home manager said that John would raise his voice at her when they were discussing Mrs Carrington’s care, adding that he did not seem to have any understanding or insight into her dementia or level of incapacity. He apparently told his mother that the rest home would not let her out and that she was locked up. Unsurprisingly this conduct distressed Mrs Carrington who directed her resentment and anger towards the staff.
[21] On the occasions when John took his mother out the clinical manager described Mrs Carrington returning in an agitated state, often asking to return to John’s home. Mrs Carrington also discussed with the staff how her children were taking John and her to Court. The topic upset and confused her, leading her to inquire, “Why am I going to Court? I’ve done nothing wrong. They’re all just being mean.” When distressed Mrs Carrington suffered disturbed sleep patterns. Staff would find her out of her bed and agitated.
[22] It appears that despite the trespass order John continued to take his mother from the rest home although he recruited others, including his partner, to facilitate this.
[23] John’s pattern of conduct led Richard to make a without notice application on 6 January 2017 seeking a temporary protection order under the Domestic Violence Act 1995 (“the DVA”) preventing John from having contact with his mother, except with Richard’s consent. This application was made by Richard in his capacity as litigation guardian, and was accompanied by an application for appointment as a litigation guardian.
[24] In his supporting affidavit Richard deposed that he and his other siblings were concerned for their mother’s welfare and safety in John’s company, adding that the children shared the view that John manipulated his mother and psychologically abused her. Furthermore, he observed that John was not prepared to acknowledge his mother’s dementia or her physical frailty, pointing to several examples where John took his mother out of the rest home telling her that all her children, except for him, hated her and that they had locked her up and taken away her dignity.
[25] The application was rejected by the Family Court which directed the application to be made on notice. Richard was however appointed as a representative of Mrs Carrington pursuant to s 11 of the DVA. A further without notice application for a protection order was made by Richard on 17 January 2017. This was prompted by an incident which occurred four days earlier when John arranged for his mother to be taken from the rest home by a friend. A detailed account of this incident formed part of the evidence at the hearing before Judge Hunt. It is described below.
[26] A man, unknown to the rest home staff, was seen walking quickly out of the facility tightly holding Mrs Carrington’s hand. He was challenged by a nurse. He was told he could not remove Mrs Carrington from the premises. He replied saying, “she’s got her own free right. You have no right to tell me what to do.” As the man and Mrs Carrington walked out the door, he was asked where he was taking her. He said he was taking her to the SPCA Op Shop. The staff told him they would ring Mrs Carrington’s daughter, Jane, to check. The man replied that he was not waiting and walked off with Mrs Carrington in tow. The rest home rang Richard and also the Police. Later that day the rest home received a telephone call from John who said that as a matter of courtesy he was advising them he had picked his mother up after seeing her walking up the road. He said he would return her after dinner. When he was asked
about the identity of the man who picked her up John said, plainly falsely, he did not know.
[27] The Family Court Judge before whom the renewed application for a protection order came was not prepared to make the order because he was, in effect, being asked to review another Judge’s decision and because he was of the view the threshold for domestic violence had not been made out. He did, however, grant the a without notice application for an interim injunction prohibiting John from removing his mother or encouraging or facilitating anyone from removing her from the rest home.
[28] On 16 February 2017, John responded by filing an application to review several decisions made by Richard as attorney, including to place Mrs Carrington in a rest home, to limit John’s access, to trespass him, to apply for a protection order and interim injunction, and to prevent Mrs Carrington leaving the rest home with anyone associated with John.
[29] Following these events the family attempted to resolve their differences by agreement, because on 3 March 2017 John signed a memorandum, the terms of which had been negotiated by counsel. This set out a regime for contact in which John undertook that while in the presence of his mother he would:
(a)not allow her to walk more than 100 metres in total while she was with him;
(b)keep her calm and settled at all times;
(c)not start any discussions with her or anyone about family conflict (past or present);
(d)not start any subject which might upset his mother;
(e)be mindful of the rest home’s guidelines as to the limits of his mother’s physical and mental capacity; and
(f)be very vigilant that his mother did not over extend herself either mentally or physically.
[30] However, Richard refused to sign the document, apparently because some supervening events led him to have no confidence John would comply with the terms of the agreement.
[31] To mitigate the siblings’ concerns about John’s behaviour, measures were taken to facilitate him visiting his mother at the same time as other family members. John also signed a memorandum on 31 March 2017 in which it was agreed he could have contact with his mother as part of a three week trial period subject to the following conditions:
(a)on each Monday, Wednesday and Friday at the rest home from 5:30 pm to 6:00 pm (commencing 3 April 2017);
(b)for the first and second Sunday from 3:00 pm to 5:00 pm at the rest home; and
(c)for the third Sunday from 11:00 am to 2:00 pm offsite.
[32] It was agreed that after the trial period a report would be obtained from the rest home on Mrs Carrington’s well-being following contact with John. If the report was positive the parties would agree to withdraw the various applications in the Family Court. Thereafter John would have unrestricted contact during the week between 5:30 pm and 6:00 pm and every second weekend on Sundays from 11:00 am to 4:00 pm with consent to take his mother offsite.
[33]In accepting these conditions John acknowledged:
(a)his mother would continue to reside in the rest home;
(b)she suffers from dementia; and
(c)Richard is the welfare guardian for his mother under the EPOA.
[34] The parties disagree on how successful the trial was. John claims his mother was never upset during or after private contact with him but that his sister Jane’s aggression led to visits being shortened. He claims Jane’s conduct upset Mrs Carrington.
[35] Richard and his sisters paint a starkly different picture with claims that John’s influence on his mother was upsetting to her and detrimental in terms of her ability to settle comfortably into life in the rest home. Not infrequently she was found distressed after John’s visits. He also persisted in challenging the various opinions from medical staff regarding his mother’s capacity and circumstances.3
[36] On 26 May 2017, contrary to his undertakings, John removed his mother from the rest home for a medical assessment despite an earlier agreement the assessment would be facilitated through the rest home. He also visited her on 27 and 28 May 2017 and arranged for her to be taken out of the rest home in defiance of the restrictions placed on him by Richard, and indeed the interim injunction.
[37] On 31 May 2017, shortly before the hearing, the rest home renewed its trespass notice.
[38] The 12 June 2017 hearing before Judge Hunt occupied two days. Before the Judge was Richard’s application for a protection order. This was opposed by John who also challenged the injunction. Additionally, John sought orders not only removing Richard as attorney but also reviewing Richard’s decision making. When the hearing started John dismissed his counsel and elected to proceed unrepresented.
[39] Before the hearing concluded John withdrew his application seeking Richard’s removal under the EPOA. The primary issues before the Judge were whether the temporary protection order should be made permanent, whether the injunction should remain and whether the terms of the EPOA should be reviewed.
3 Among other things, this included an episode recorded by Judge Hunt at [38]-[46] in which he questioned Dr Reid’s expert assessment of Mrs Carrington. At times, he went as far as to question the independence of the doctors assessing Mrs Carrington.
Family Court decision
Protection order
[40] From the start Judge Hunt identified John’s behaviour as the central issue. He described it in this way:
“[49] It is [John’s] behaviour and allegations that are problematic. [John] is unwilling to accept advice that does not fit with his own judgement on matters and unwilling to defer to the expertise of those better placed and qualified to make decisions.”
[41] The Judge largely accepted Richard and his sisters’ descriptions of their mother’s state following John’s visits. He accepted as genuine their distress over their mother’s condition. He found John had engaged in a pattern of behaviour which distressed his mother and amounted to psychological abuse and thus domestic violence.4 The Judge observed that in making a finding of domestic violence an intention to cause distress is not necessary; it is sufficient that the actions of the party have that effect. He observed:
“[58] There has been domestic violence in the relationship between [John] and his mother. His motivation is genuine but it is misguided and defiant. I accept the evidence as to the distress and adverse effect that the actions of [John] has on his mother and in particular, the continuing conversations about lawyers, the courts, medical assessments, the Rest Home and family relationships.
[59] Further, I accept that [John] at times becomes loud, forceful and intimidating. Ms X [the Rest Home clinical manager] described it, and others described it. [John] concedes that he became upset, but was not prepared to concede that he became either loud or intimidating.”
[42] On the question of whether a protection order was necessary, Judge Hunt found “[John’s] personal agenda to achieve justice on his terms for his mother” drove him to “involve [Mrs Carrington] in a way that was distressing to her and amounted to domestic violence.5 This, coupled with his inability to comply with his assurances of improved behaviour, led the Judge to conclude a protection order was necessary. He found John, despite being given a number of opportunities to do so, had still not come to terms with his mother’s situation, or the consequent need to modify his behaviour.
4 At [55].
5 At [64].
In this regard, he concluded that John’s behaviour, ranging from allowing Mrs Carrington to cook at his house in 2016, to his insistence that the rest home arrangements were not in Mrs Carrington’s best interests, was a continuing pattern of behaviour. He was not convinced that without a protection order this pattern would change.
[43] Judge Hunt then turned to Mrs Carrington’s circumstances, which necessarily meant he had not heard from her. He thus accepted the evidence of the other siblings that she was often distressed and confused after visits from John. He also noted the submission of Mr Adams, appointed as Mrs Carrington’s lawyer, that a protection order was necessary.
[44] Having decided a protection order should be made Judge Hunt imposed a condition vesting in Richard the responsibility for making decisions about the nature and extent of John’s contact with Mrs Carrington. He hoped “consent [could] be given to a regular pattern of contact with few limitations”.6 He rejected Richard’s suggestion of monthly contact, accepting this would cause “considerable distress to [John]”, and that, if managed, “[t]he contact between [John] and [Mrs Carrington] … could be of considerable benefit to her”.7 For this reason he preferred a flexible arrangement. The condition ultimately imposed was:
“Contact between [John] and [Mrs Carrington] is to occur only in such manner including but not limited to time, place and circumstance as agreed with [Richard] and not otherwise.”
Application to review
[45] Next Judge Hunt considered John’s application for review under s 103 of the Protection of Personal and Property Rights Act 1988 (“the PPPRA”). John’s case was that Richard’s restrictions on contact were unreasonable. Given his findings on the necessity of a protection order, the Judge concluded there was no basis to review Richard’s decision making.8 He added there was nothing to suggest Mrs Carrington had not been consulted, or that Richard’s decision-making was not mindful of her
6 At [84].
7 At [86].
8 At [99].
needs and Richard’s responsibilities under the PPPRA. The Judge also emphasised that the decisions to issue trespass notices had been made by the rest home, albeit that the first notice had been issued in consultation with Richard. He said:
“[103] I am not able to discern in any way that [Richard’s] conduct or chosen course of action has not been able to serve his mother’s interests. I do not accept that there is a conflict such as to preclude his appointment or to compromise it, and decline to make any directions or orders in respect of that application. It is therefore dismissed.
Interim injunction
[46] The Judge discharged the interim injunction on the basis it had been superseded by the protection order, and in any event had not been effective in preventing John from removing Mrs Carrington from the rest home.
Jurisdiction
[47] Sections 91 and 83 of the DVA and PPPRA respectively provide for the right of appeal to the High Court against decisions to make or refuse to make an order, dismiss proceedings or otherwise finally determine proceedings.
[48] The appeal is by way of rehearing.9 The Court of Appeal confirmed in Surrey v Surrey that the granting of protection orders involves two stages.10 The first is a factual inquiry of domestic violence, for which appellants have a general right of appeal. At that stage, the High Court is not required to defer to the Family Court’s assessment of the evidence; rather, a fresh review and assessment of the evidence is required,11 subject to the qualification that the Court at first instance has had the opportunity to assess the credibility of witnesses. Where such an assessment is required, the appeal Court may correctly hesitate in disturbing findings of fact and degree.12 But the assessment of necessity at the second stage is an evaluative inquiry requiring the exercise of a judicial discretion. In order to succeed on appeal the
9 District Court Act 2016, s 127.
10 Surrey v Surrey [2008] NZCA 565, [2010] 2 NZLR 581 at [67].
11 Austin, Nichols & Co Inc v Stiching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
12 At [5].
appellant must show the Judge acted on a wrong principle, failed to take into account a relevant matter or took into account an irrelevant matter, or was plainly wrong.13
[49] Ms Ebborn, for Richard, submitted that the approach to appeals on s 103 of the PPPRA is that set out in Austin, Nichols. In my view that proposition does not follow from the statutory language. Section 103(4) provides the Court may, if it thinks it reasonable to do so in all the circumstances, review the decision and make any order it thinks fit. That is language which classically entails a discretionary assessment of the circumstances, and contemplates a range of available outcomes a Judge may or may not arrive at on their assessment of the facts.
[50] A similar conclusion was arrived at in Treneary v Treneary.14 In that case the Family Court Judge decided to review the attorney’s decisions, and consequently revoked her EPOA, and appointed a separate welfare guardian and property manager. In arriving at her conclusion Andrews J drew on s 8 of the PPPRA, which provides the exercise of the Court’s jurisdiction under the Act should “make the least restrictive intervention possible”, and that the language in s 12(1), “may make an order”, appears to confer discretion.15 I have found that reasoning compelling.
[51] That being the case, in order to succeed on appeal the appellant must show an error in the decision subject to appeal.
Grounds of appeal
[52] In short, on the issue of the protection order, Mr Mark for John, submits on an objective view of the facts there has been no domestic violence in the relationship between John and Mrs Carrington, and that in any event a protection order is not necessary for Mrs Carrington’s protection. He submits the evidence of John’s siblings is unreliable due to the long-running family feud, and because it was not properly tested by cross-examination.
13 Surrey v Surrey, above n 10, at [68]-[69].
14 Treneary v Treneary [2009] NZFLR 1062 (HC).
15 At [38], [40].
[53] As to the review of Richard’s decisions, Mr Mark submits Richard has not acted in Mrs Carrington’s best interests, or in accordance with the PPPRA, and should be replaced.
[54]John seeks the following relief:
(a)discharge of the protection order;
(b)appointment of an independent party as welfare attorney for Mrs Carrington; and
(c)costs against Richard.
Issues for determination
[55] As the argument before me developed it became plain that the following issues lie at the heart of the dispute between the parties. These are:
(a)Does the evidence support the Judge’s finding of domestic violence?
(b)If so, is a protection order necessary?
(c)If so, what conditions, if any, should attach to the protection order?
[56] The findings on these issues will necessarily inform my decision on the PPPRA review.
[57]I shall turn to discuss each of these issues in turn.
Analysis
(a)Is there domestic violence?
Legal principles
[58] The DVA is designed to recognise that domestic violence (in all its forms) is unacceptable, and to ensure that where it occurs there is effective legal protection for
victims.16 Protection orders are but one feature of the DVA’s range of remedies designed to achieve this end.17 Applications for protection orders on behalf of those lacking legal capacity are available under ss 7(3) and 11 of the DVA.
[59] The Court’s power to make a protection order is contained in s 14 which provides:
“14 Power to make protection order
(1)The court may make a protection order if it is satisfied that—
(a)the respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both; and
(b)the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both.
(2)For the purposes of subsection (1)(a), a respondent who encourages another person to engage in behaviour that, if engaged in by the respondent, would amount to domestic violence against the applicant, or a child of the applicant’s family, or both, is regarded as having engaged in that behaviour personally.
(3)Without limiting section 3(4)(b) or the matters that the court may consider in determining, for the purposes of subsection (1)(b) of this section, whether the making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both, where some or all of the behaviour in respect of which the application is made appears to be minor or trivial when viewed in isolation, or appears unlikely to recur, the court must nevertheless consider whether the behaviour forms part of a pattern of behaviour in respect of which the applicant, or a child of the applicant’s family, or both, need protection.
(4)For the avoidance of doubt, an order may be made under subsection
(1) where the need for protection arises from the risk of domestic violence of a different type from the behaviour found to have occurred for the purposes of paragraph (a) of that subsection.
(5)Without limiting the matters that the court may consider when determining whether to make a protection order, the court must have regard to—
(a)the perception of the applicant, or a child of the applicant’s family, or both, of the nature and seriousness of the behaviour in respect of which the application is made; and
(b)the effect of that behaviour on the applicant, or a child of the applicant’s family, or both.”
16 Domestic Violence Act 1995, s 5(1).
17 Reflecting the aspiration set out in s 5(2)(a).
[60] The inquiry involves two, interrelated, steps as mandated by the section. The first is whether domestic violence has occurred in a domestic relationship. The second is whether making a protection order is necessary to protect the applicant.18 The Court of Appeal in SN v MN has recently discussed this process and the DVA’s regime in a comprehensive manner.19
[61] For the purposes of the first step, domestic violence is defined in s 3 of the DVA:
“3 Meaning of domestic violence
(1)In this Act, domestic violence, in relation to any person, means violence against that person by any other person with whom that person is, or has been, in a domestic relationship.
(2)In this section, violence means—
(a)physical abuse:
(b)sexual abuse:
(c)psychological abuse, including, but not limited to,—
(i)intimidation:
(ii)harassment:
(iii)damage to property:
(iv)threats of physical abuse, sexual abuse, or psychological abuse:
(iva) financial or economic abuse (for example, denying or limiting access to financial resources, or preventing or restricting employment opportunities or access to education):
(v)in relation to a child, abuse of the kind set out in subsection (3).
…
(4)Without limiting subsection (2),—
(a)a single act may amount to abuse for the purposes of that subsection:
18 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [20], [22].
19 See [17]-[24].
(b)a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.
(5)Behaviour may be psychological abuse for the purposes of subsection (2)(c) which does not involve actual or threatened physical or sexual abuse.”
[62] This expansive definition is a function of the recognised need to reduce domestic violence in all its forms. In SN v MN the Court confirmed that the DVA is of a remedial nature; to be given wide and liberal construction in achieving its purpose of eliminating abuse of power and control in domestic relations through the mechanism of protection orders.20 As the authors of Brookers Family Law have said:21
“The specific inclusion of psychological abuse in the definition of domestic violence recognises the damaging effect of behaviour that may not be physically violent, but is emotionally destructive and may be cumulative through ongoing abuse. The common denominator of all behaviours defined as violence is the exertion of power and control by one person over another.”
[63] In the present case the issue is whether the conduct complained of and proved on the evidence amounts to psychological abuse. Psychological abuse has a more extensive meaning than harassment as defined in the Harassment Act 1997. Miller J stated:22
“It is doubtful whether any single definition could encapsulate all forms of behaviour affecting the protected person’s emotional or mental state, still less the circumstances in which such behaviour will amount to abuse.”
[64] Furthermore, abusive behaviour towards the victim’s associates and support persons can, in context, be a factor to be weighed in establishing a relevant pattern of behaviour.23 Proof of an intention to abuse is not required.24
[65] Ultimately, the controlling words and phrases “mean what they say” and ought to be taken at their plain meaning. No additional gloss is required. 25 Further:26
20 SN v MN, above n 18 at [18], citing Takiari v Colmer [1997] NZFLR 538 (HC) at 540 per Hammond J.
21 Brookers Family Law (online looseleaf ed) at [DV3.01].
22 M v M (2005) 7 HRNZ 971 (HC) at [21].
23 AB v ST [2011] NZFLR 669 (HC) at [21]-[26].
24 A v B (1998) 17 FRNZ 330 (HC) at 336.
25 SN v MN, above n 18, at [19].
26 At [19] (footnotes omitted).
“Judicial overlays or refinements on a self-contained, plainly written statutory code do not assist. Similarly, references to what the Family Court has said in other cases are unlikely to be helpful unless they are guiding statements of principle or statutory construction. That is because the inquiry is essentially of a fact-specific nature, calling for an evaluative exercise conducted within the logical framework provided by the Act.”
[66] In determining the issue of domestic violence the Court is required to stand back and evaluate the evidence in its totality in deciding whether all incidents, when viewed together, constitute proof.27
[67] Only after the Court is satisfied that domestic violence has been proved does it move to consider whether a protection order is necessary. The person opposing the making of the order has an evidential burden to show why the order should not be made on the balance of probabilities.28 This step involves a common sense inquiry. The greater and more persistent the degree of violence the more likely it is that an order will be necessary. It is unlikely an order will be refused where the behaviour has given rise to reasonable fears for safety.29 It is a truism that past behaviour “is the most reliable guide to future conduct”.30
John’s case
[68] Mr Mark’s primary submission is that when the evidence is objectively and carefully examined it is insufficient to satisfy the elements constituting domestic violence.
[69] Mr Mark accepts that John and Mrs Carrington have a qualifying domestic violence relationship as defined in s 4 of the DVA, but he submits the objective evidence does not support a finding of domestic violence because:
(a)much of the evidence asserting domestic violence came from John’s siblings and as such was subjective and should be discounted;
(b)any domestic violence was not directed at Mrs Carrington; and
27 At [21].
28 Surrey v Surrey [2008] NZCA 565; [2018] 2 NZLR 58 at [43], [77], [122].
29 SN v MN, above n 18, at [22]-[23].
30 At [24].
(c)the evidence was not subjected to cross-examination.
[70] Mr Mark submits that for domestic violence to be present the action must be directed at Mrs Carrington. Here, John directed his frustration to Richard, the doctors and the rest home rather than Mrs Carrington. He contends the evidence reveals that Mrs Carrington was safe and secure when she lived at John’s home following her discharge from hospital. She was coping well and all of the circumstances which formed the basis of the criticisms were answerable on the evidence and consistent with John’s overwhelming concern for his mother’s health and well-being.
[71] Mr Mark is also critical of a number of Judge Hunt’s factual conclusions such as his finding that the parties’ efforts to find a pathway to resolution were ultimately frustrated by John31 when, Mr Mark submits, John worked very hard towards a resolution.
[72] He also submits the Judge’s finding that John “at times becomes loud, forceful and intimidating”32 is a factual misdirection because there is no evidence this conduct, if it occurred, was directed towards Mrs Carrington. Furthermore, evidence of Mrs Carrington’s distress has continued despite the fact that John has had no contact with his mother since May 2017, a month before the hearing. In other words, Mr Mark submits, John could not as a matter of logic be the catalyst or cause of her continuing distress.
Application of principles
[73] As previously noted, abuse directed towards associates and support persons is a relevant factor which may be assessed in determining whether a pattern of behaviour may amount to abuse supporting a finding of domestic violence.
[74] In this regard aspects of John’s behaviour share many of the features found in AR v RDH referred to by me by Ms Ebborn, for Richard. AR v RDH was also a case involving a subject person who lacked capacity.33 The relevant features included:
31 Carrington v Carrington above n 2 at [27].
32 At [59].
33 AR v RDH FC Christchurch FAM-2008-009-2784, 8 January 2010.
(a)rude and intimidating behaviour directed towards rest home staff;
(b)a trespass notice issued against the respondent which proved ineffective;
(c)an inability on the part of the protected person to challenge the respondent;
(d)the protected person’s compliant personality, which in combination with the respondent’s forceful personality led to an unacceptable degree of control over the protected person; and
(e)a negative impact on the protected person.
[75] Despite John’s assertions to the contrary there was a wealth of independent evidence he was abusive and intimidating towards his mother’s caregivers and support persons. This was described by the rest home’s clinical manager, a registered nurse with 25 years experience in geriatric care. She discussed John raising his voice at her when they were discussing his mother’s care. She said that he did not seem to have any understanding of dementia and what, in practice, his mother could and could not do. She described how Mrs Carrington became distressed after John told her that she was not allowed out of the rest home because the staff would not let her out; that she was locked up. Not only were these comments distressing to Mrs Carrington but they fomented anger which she directed towards the staff because she believed what her son was saying; that is she was incarcerated against her will and that the rest home and her other children were responsible for her predicament.
[76] Furthermore, there was ample evidence to support the Judge’s finding that John was the cause of his mother’s distress. The clinical manager described Mrs Carrington’s presentation when she returned from John’s care describing her as:
“… quite agitated and wanting to go to [John] … she would talk about the rest of her children, how they were taking [John] and her to Court and she’d get quite agitated about that. She’d say things like, “Why am I going to Court? I’ve done nothing wrong, they’re all just being mean.” Her sleep patterns would also be quite disturbed and she would be up in the middle of the night quite agitated and take some calming down. …”
[77] Mrs Carrington’s vulnerability and the mechanism by which John’s conduct caused her distress was explained by the clinical manager in this way:
“She lives in the moment and if you meet her in her moment she’s very happy, she enjoys day-to-day things, she always wake up bright and happy and especially in that period when she’s not got any stresses on her, she feels the tug of war between her children and if she’s constantly reminded of that it does affect her so when there’s nobody mentioning anything about courts, Police, nothing, she’s very happy and she’s just delightful. She participates in activities in the rest home and enjoys visits from her family, children …”
[78] Mrs Carrington’s susceptibility to become agitated was explained by the clinical manager, who in response to a question about Mrs Carrington’s dementia, described it thus:
“She tends to get quite agitated about things. You can tell when somebody has been talking to her about things she doesn’t understand because she … picks little bits out of stories and puts it all together and will tell a different story each time but it has different pieces from each story that she’s been told
… [W]hen she starts hearing about courts and things like that she gets quite stressed and … she can’t remember the whole story so she will pick bits out of her past and put that with a little bit from the courts story … she’s just not happy … her toileting can become an issue, she doesn’t want to eat because she thinks she’s got to go to court … She doesn’t participate in activities in the rest home … that’s how it impacts her … her daughters come to visit [and they] usually just talk to her … ‘in the moment’ … she doesn’t want to talk to them, she tells them horrible stuff about them … it impacts on her quite a lot.”
[79] It follows on the clinical manager’s evidence alone I am satisfied that a pattern of behaviour is established that amounts to domestic violence. The evidence reveals conduct by John directed towards both Mrs Carrington herself as well as her caregivers and supporters.
[80] While an examination of the individual incidents, viewed in isolation, may appear to be minor or trivial, their combined effect is not.34
[81] In addition to the above, there are numerous other incidents which support the Judge’s conclusion that there has been domestic violence in the relationship between John and his mother. These include John’s chronic lack of insight into his mother’s limitations and what appears to be a dogged refusal to accept or comply with the directions and recommendations of experts. These include facilitating his mother’s
34 Domestic Violence Act 1995, s 3(4)(b).
aspirations to drive when not only was that course contraindicated by Mrs Carrington’s general practitioner but must have been plainly evident to John from what he observed himself. While each of the driving episodes, if considered in isolation, might be explicable or excusable, it is the combination which conveys the extent of John’s lack of insight into his mother’s limitations and the dangers she posed both to her own safety and the health and safety of others on the roads and in the vicinity.
[82] The same may be said in relation to the other examples referred to in the evidence, some of which were cited by the Judge. These included incidents involving taking Mrs Carrington on excursions which exceeded her physical and mental capacity and removing her from the rest home for a medical assessment in the knowledge that the rest home intended to facilitate the assessment.
[83] It is also a matter of concern and operates to undermine John’s explanations for permitting his mother to drive that his explanations are contradictory. For example, having confirmed that his mother had driven on the wrong side of the road he explained that it was for the purpose of passing. When Judge Hunt challenged this John accepted it was, in fact, a driving error.
[84] Concern must also be registered at John’s initial denial that the unidentified man who took his mother out of the rest home had anything to do with him. Twice he denied making these arrangements before conceding the obvious; that he was the one who set it up.
[85] It is also apparent from the notes of evidence that in places John’s evidence was obfuscatory and remained so despite attempts by the Judge to clarify matters.
[86] These, and other conduct referred to in the evidence, justified the Judge’s observation that John is unwilling to accept advice which does not align with his own judgement and is unwilling to defer to the expertise of those better placed and more qualified to make decisions which are in the best interests of his mother.35
35 Carrington v Carrington, above n 2, at [49].
[87] I also take into account that Mr Adams, appointed as lawyer for Mrs Carrington, advises that since he last saw Mrs Carrington in mid-2017 her physical and mental deterioration has been marked. She is thus even more vulnerable than she was at the time of the hearing. He submits it was clear, particularly having regard to the evidence given by the clinical manager, that Mrs Carrington’s levels of distress increased following contact with John. This observation, of course, is necessarily based on Mr Adams’ observations prior to May 2017 when John last had contact with his mother.
[88] Mr Adams submits that in all the circumstances there is a continuing need for a protection order in respect of John.
[89] I also reject Mr Mark’s submission that John’s siblings’ evidence was unreliable by reason of their longstanding disagreement over their mother’s care. The correspondence of the clinical manager’s evidence and that of John’s sisters and brother is telling. The rest home evidence is largely corroborative of their claims and provides reassurance that Mr Mark’s claims of collusion are unfounded.
[90] Neither do I accept that their evidence is unreliable or should be given less weight because it was not tested by cross-examination. John elected to dispense with the services of his lawyer on the morning of the hearing. While, of course, that was properly a decision for him to make, he must have appreciated the nature of the risks that course presented. Having reviewed the notes of evidence it is apparent that Judge Hunt took great care in ensuring John understood his rights and obligations as the applicant. For example, when Richard finished his evidence-in-chief the Judge explained the rudiments of cross-examination to John. When his sister, Jane, completed her evidence-in-chief and the Court inquired whether John had any questions for his sister he responded that he did not think it wise to say anything to her. To this the Judge carefully explained that if John took issue with what she had said he was required to put his case to her, difficult as that might be. The Judge correctly explained to John the consequences of not putting his case properly.
[91] In short, Richard and three of his sisters gave evidence as did the clinical manager of the rest home. Each was cross-examined by John. Although his cross-
examination was not particularly extensive I am satisfied he presented his case adequately and that his challenge to the protection order, particularly, was fully understood by Judge Hunt as his judgment reveals.
[92] Mr Mark was also critical that the Judge was wrong in not hearing from Mrs Carrington. He submits there was no principled reason why Mrs Carrington should not be heard. She had clearly expressed her views to those who would listen and that both in respect of the protection order and the PPPRA matters she should have been given a voice, particularly as the latter mandates that the subject person shall be heard.
[93] In support Mr Mark underscores s 98A of the PPPRA, which I am unable to conclude mandates subject persons to be heard in the manner submitted. Certainly, it provides the attorney must encourage the donor to develop and exercise their capacity to communicate decisions about their welfare, and act on their own behalf to the greatest extent possible. But those behaviours are expressly subject to the attorney’s paramount consideration of promoting the person’s welfare and best interests. There is no unwavering requirement to be heard, as the provision recognises the protected person’s welfare and best interests may require otherwise.
[94] Although Judge Hunt did not expand on his reasons for not hearing from Mrs Carrington, his decision not to is entirely explicably in the circumstances. It is apparent from the evidence she was distressed and confused at the prospect of being embroiled in Court proceedings. Plainly, given her deteriorating mental capacity it was not necessary for the Judge to solicit Mrs Carrington’s views. That approach is consistent with the comments of Takiari v Colmer where Hammond J described the subject person’s views as not “the fulcrum of the case”.36 Requiring Mrs Carrington to be heard could only exacerbate that distress, and therefore the decision not to call her was consistent with s 98A of the PPPRA.
[95] Furthermore, given Mrs Carrington’s cognitive deficits and other frailties it is understandable that the Judge could have no confidence in the reliability of any view expressed by Mrs Carrington in these circumstances. A much more reliable measure
36 Takiari v Colmer, above n 20, at 540.
of what operated in Mrs Carrington’s best interests lay in the evidence he heard, particularly that from the clinical manager of the rest home.
[96] In any event, Mrs Carrington did have a voice. She was represented under both the DVA and the PPPRA matters by Mr Adams who was appointed by the Court under those statutes for the purposes of representing her interests; standard practice when a person has been deemed to lack capacity.
(b)Is a protection order necessary?
[97] As previously noted this step involves a common sense inquiry. It is unlikely a protection order will be refused where the behaviour gives rise to reasonable fears for the subject person’s safety.
[98] Mr Mark submits it is not necessary for a protection order to be made, noting the Judge recorded he had John’s assurances he would comply with the Court’s decision and would not discuss matters with his mother again.37 It is, however, noteworthy that the Judge also observed John has a history of breaching promises on similar terms and the view of the family is that he would not be compliant.
[99] I agree with Judge Hunt that the finding of necessity logically follows the establishment of a pattern of psychological abuse which amounts to domestic violence. This is particularly so when viewed against the various attempts by others to thwart or mitigate the effects of John’s behaviour, efforts which have, to date, been met with only very limited success.
[100] Judge Hunt cited MMM, JEM [representative] v KTM with approval.38 There Judge Druce found:39
“I take into account the extreme vulnerability of Mrs M. She is fragile, she is very psychologically vulnerable and it is of primary importance that her care giving environment is a safe one.”
37 Carrington v Carrington, above n 2, at [64].
38 MMM, JEM [representative] v KTM FC FAM-2010-029-000141, 8 November 2010.
39 Carrington v Carrington, above n 2, at [23].
[101] I agree that similar considerations are at play in the present case. I note Mr Adams also agrees that a protection order was necessary.
[102] Judge Hunt lamented John’s lack of insight into the effect of his behaviour, blinded by his “deep and profound sense of justification”.40 On the evidence this was an entirely apposite observation. It is common ground that John loves his mother deeply. He is sincere in his concerns about her well-being and welfare. It is a tragedy that these concerns have evolved into misguided conduct which has caused not only distress to his mother but have founded his estrangement from the rest of his family.
[103] It is his lack of insight and his repeated failure/refusal to moderate his conduct which leads me to conclude the Court had little choice but to impose a protection order to free Mrs Carrington from the harmful consequences of her son’s behaviour.
[104] I am satisfied that a protection order was and remains necessary. What conditions, if any, should be imposed is discussed at the end of this judgment.
Review of Richard’s EPOA
Legal principles
[105] Part 9 of the PPPRA operates to enable persons (the donor in terms of the Part) to grant an EPOA to act in relation to their personal care and welfare if they become mentally incapable.41 There is a presumption of competence codified in the PPPRA.42
[106] Once a relevant health practitioner has certified that the donor is mentally incapable, the attorney is entitled to act in relation to the donor’s personal care and welfare, either generally or in relation to specific matters with such authorisation able to be subject to conditions and restrictions.43 The actions of an attorney regarding the donor’s personal care and welfare are limited in an important way:
“98 Enduring power of attorney in relation to personal care and welfare
40 Protection of Personal and Property Rights Act 1988, s 93A.
41 Protection of Personal and Property Rights Act 1988, s 93A.
42 Section 93B.
43 Section 98(1) and (3).
…
(3)The attorney—
(a)must not act in respect of a significant matter relating to the donor’s personal care and welfare unless a relevant health practitioner has certified, or the court has determined, that the donor is mentally incapable; and
(b)must not act in respect of any other matter relating to the donor’s personal care and welfare unless the attorney believes on reasonable grounds that the donor is mentally incapable.
…”
[107] The restrictions applicable to welfare guardians under s 18 are also applicable to attorneys acting under Part 9.44
[108] The effect of the attorney’s decision-making is total substitution for the decisions of the subject person without a third party being required to inquire into the subject person’s concurrence or opposition to the decision being made.45
[109]Mrs Carrington placed no conditions or restrictions in her EPOA.
[110] Significant matters relating to the donor’s personal care and welfare are matters that have, or are likely to have, significant effect on the health, well-being or enjoyment of the life of the donor.46 It follows that Richard can issue directives about those who may visit his mother and the terms and conditions of those visits if it is a matter which affects her health, well-being and enjoyment of life. The Court may also give directions about such matters.
[111] Section 98A then outlines the paramount considerations of persons exercising an enduring power of attorney in relation to personal care and welfare:
“98A Exercise of enduring power of attorney in relation to personal care and welfare
(1)This section applies to an attorney acting under an enduring power of attorney in relation to the donor’s personal care and welfare.
44 Protection of Personal and Property Rights Act 1988, s 98(4).
45 Sections 98(5) and 103B.
46 Section 98(6).
(2)The paramount consideration of the attorney is the promotion and protection of the welfare and best interests of the donor, while seeking at all times to encourage the donor to develop and exercise his or her capacity to—
(a)understand the nature and foresee the consequences of decisions relating to his or her personal care and welfare; and
(b)communicate such decisions.
(3)Without limiting the generality of subsection (2), the attorney must—
(a)encourage the donor to act on his or her own behalf to the greatest extent possible; and
(b)seek to facilitate the integration of the donor into the community to the greatest extent possible.
(4)When deciding any matter relating to the donor’s personal care and welfare, the attorney must give due consideration to the financial implications of that decision in respect of the donor’s property.”
[112] There is also a duty of consultation at s 99A, with the donor as far as practicable, and with any other specified person.
[113]Section 103 of the PPPRA then provides for reviews of attorney’s decisions:
“103 Review of attorney’s decisions
(1)Any of the following people may at any time apply to a court to review any decision made by an attorney acting under an enduring power of attorney while the donor is or was mentally incapable:
(a)the donor of the enduring power of attorney:
(b)a relative or attorney of the donor (not being the attorney whose decision is sought to be reviewed):
(c)a social worker:
(d)a medical practitioner:
(e)a trustee corporation:
(f)if the donor is a patient or a resident in any place that provides hospital care, rest home care, or residential disability care within the meaning of the Health and Disability Services (Safety) Act 2001, the principal manager of that place:
(g)any welfare guardian who has been appointed for the donor:
(h)a person authorised by a body or organisation contracted by the Government to provide elder abuse and neglect prevention services.
(2)Any other person may apply for a review if the court gives leave to do so.
(3)For the avoidance of doubt, an application for review may be made while the enduring power of attorney is in force or after it is revoked by the death of the donor or otherwise.
(4)The court may, if it thinks it reasonable to do so in all the circumstances, review the decision and make any order it thinks fit.
(5)An order under subsection (4) has effect according to its tenor.”
John’s complaints
[114] John has particularised Richard’s decisions which he says reveal that Richard is not competent to remain as his mother’s welfare guardian. These include:
(a)deciding to move Mrs Carrington into a rest home before she had been deemed mentally incapable;
(b)his decision to stop or restrict access of John and his friends to Mrs Carrington;
(c)the decision to trespass John from the rest home;
(d)the decision to apply to be a litigation guardian for Mrs Carrington then apply for a protection order;
(e)the decision to apply for an interim injunction;
(f)the decision to “stop” Mrs Carrington from leaving the rest home for day or overnight trips with anyone associated with John; and
(g)failure to consult with Mrs Carrington about matters affecting her personal care and welfare and give her a voice in those decisions.
[115] Generally, he also complains Richard has failed to integrate Mrs Carrington into her community as much as possible, and put his own interests before hers. Judge Hunt, having concluded that a final protection order was necessary, did not accept that there was any basis to review Richard’s decision-making. However, he went on to discuss the complaints and I agree with his conclusions for the reasons he gives.
[116] Most of Richard’s decisions complained of flowed from and were a natural consequence of Richard’s concerns about his mother’s well-being. I have discussed this in detail already and it follows I am satisfied that decisions designed to restrict John’s access to Mrs Carrington were properly made in Mrs Carrington’s best interests. The Judge did not err in declining to review Richard’s decisions on this basis.
[117] Other decisions, such as the decision to issue John a trespass notice are misconceived. Two trespass notices were issued, and were issued by the rest home.
[118] It is also noteworthy that all the children, including John, initially agreed to Richard’s appointment. And even he, in his evidence, implicitly accepted the difficulty Richard found himself in when he said:
“… We have had a lot of naughty little things go on in our family and they’ve involved our parents, probably [Richard is] the cleanest one out of all of us, hence we all chose him to be in the position that he’s in today and I, at that particular time, really respected that. I don’t now but I – and I don’t envy his job because [Richard] has had to make decisions that probably even I don’t like. Well, I don’t like.”
[119] Taking a step back, all the evidence before me indicated Richard’s actions as attorney have been taken with the best interests of Mrs Carrington in mind. There is, simply put, insufficient evidence to substantiate the other claims raised by John.
[120] For these reasons I am satisfied that Judge Hunt was correct when he dismissed John’s application for review and confirmed the EPOA.
Protection order conditions
[121] Judge Hunt confronted this issue and the comments he made at that time are deserving of repetition, not only because I agree with them, but also because they remain apt. He said:
“[104] 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.
[105] 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.
[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 conducts himself.”
[122] It must be a matter of deep concern that John has not seen his mother since May 2017 and it would appear from Mr Adams’ submissions that Mrs Carrington’s memory of him may be fading. That is an unsatisfactory state of affairs irrespective of whether it is viewed from the perspectives of Mrs Carrington, John or the wider family.
[123] Judge Hunt’s decision not to impose specific conditions was plainly influenced by the unhappy background to these events littered, as it is, by repeated failed attempts to broker a sensible and workable contact arrangement.
[124] It was for this reason I discussed with counsel at the end of the hearing how a workable, monitored access arrangement might be implemented. Undoubtedly there are obstacles. These include the fact that John is still subject to the rest home’s trespass order and as a result any contact between him and his mother would need to take place at a location outside the rest home. Secondly, I am satisfied that monitored or supervised contact is necessary. The options discussed included the engagement of a
professional third party, a member of John’s family or one or more of his siblings. For reasons which are unnecessary to canvas, each of these presents with its own set of complications.
[125] My preliminary view is that an independent third party should be engaged in this role; 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.
[126] I direct the parties, including Mr Adams, to consult with a view to formulating a consent memorandum containing the conditions which the parties agree may be included. In the event of the parties not agreeing I may be required to impose conditions which neither party would wish. The memorandum is to be filed within 20 working days of the date of this judgment, following which it is to be referred to me forthwith.
Result
[127]The appeal against the discharge of the protection order is dismissed.
[128] The application to remove Richard Carrington as the attorney pursuant to the enduring powers of attorney is dismissed.
Costs
[129] I am advised that the issue of costs at first instance has not been resolved because the appeal was lodged. The cost memorandum filed by the applicant sought
$31,316.82.47
47 The respondent advises this memorandum was dated 7 July 2017 and sought costs less than the 2B calculation under the District Court Rules ($33,108). The actual costs incurred were, apparently, $35,219.94.
[130] In the event that the parties are unable to agree I direct that memoranda as to costs are to be filed and served within 20 working days of the date of this judgment. No memorandum may exceed five pages in length.
Moore J
Solicitors/Counsel:
Mr Mark, Kerikeri
Ms Ebborn, Christchurch Mr Adams, Kaitaia
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