Flavell v Campbell - [2019] NZHC 799

NOTE: PURSUANT TO S 80 OF THE PROTECTION OF PERSONAL AND PROPERTY RIGHTS ACT 1988, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-003902

[2019] NZHC 799

BETWEEN
MS FLAVELL

Appellant

AND

MR CAMPBELL

Respondent

Hearing: 19 March 2019

Appearances:

Appellant in Person

A Cooke as Counsel to Assist G Askelund for Mr Thomas

Judgment:

12 April 2019

JUDGMENT OF MOORE J

This judgment was delivered by me on 12 April 2019 at 11:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

FLAVELL v CAMPBELL [2019] NZHC 799 [12 April 2019]

Introduction

[1] The man at the centre of these proceedings is Mr Thomas.1 Mr Thomas suffers from moderate to severe cognitive deficits associated with his 30-year plus history of schizophrenia.

[2] His sister, Ms Flavell,2 is the appellant. Until the Family Court revoked it, Ms Flavell held an enduring power of attorney (“EPOA”) in respect of her brother’s financial affairs. Questions around the propriety of Ms Flavell’s conduct relative to the EPOA and her appropriateness to hold the authority have arisen. These were considered by the Family Court in November 2017 when that Court revoked the EPOA and declared that Ms Flavell was not a fit or proper person to manage Mr Thomas’ affairs. The Public Trust was appointed property manager to manage Mr Thomas’ affairs. Ms Flavell appeals those orders.

Background facts

[3] The following narrative is drawn from the decisions of Judge D A Burns3 supplemented by the affidavit evidence sworn in support of the respondent’s applications. I will also refer to the observations Duffy J made in the context of parallel civil proceedings in this Court.4

[4] As a consequence of Mr Thomas’ chronic mental illness, he suffers from impaired short term memory and an impaired capacity to process information in order to come to a decision. Despite this, he lives independently, albeit in a somewhat restricted fashion. His longer term mental health prognosis is poor. It is expected that his mental capacity will slowly and inexorably deteriorate over time.

[5] In 2015 Mr Thomas was the sole holder of an account with a credit union (“the Credit Union”). That account was operated using an EFTPOS card.

1      This is a fictitious name to protect the identity of the party.
2      This is a fictitious name to protect the identity of the party.
3      Campbell v Thomas [2017] NZFC 4720 (the 21 June 2017 orders) and Campbell v Thomas [2017] NZFC 9125 (the 14 November 2017 orders).
4      Flavell v Credit Union [2016] NZHC 133; for reasons that are unclear, this citation appears to have been duplicated. However, it is the citation that is recorded on the front of Duffy J’s judgment so I record it as such.

[6]…

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.

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Details

Case: [2019] NZHC 799
Decision Date: 12 April 2019

CaseChat Overview and Summary

Ms Flavell, the appellant, appealed the Family Court’s orders revoking her enduring power of attorney (EPOA) and declaring she was not a fit or proper person to manage her brother’s property. Mr Thomas, the respondent, was a person with moderate to severe cognitive deficits associated with his 30-year plus history of schizophrenia. Ms Flavell had been granted an EPOA to manage her brother’s financial affairs but the Family Court revoked it and declared she was not a fit or proper person to manage his affairs. The Public Trust was appointed property manager to manage Mr Thomas’ affairs. The court was required to determine whether the Family Court was correct to revoke the EPOA and declare that Ms Flavell was not a fit or proper person to manage her brother’s property. The court found the Family Court was correct to revoke the EPOA and declare that Ms Flavell was not a fit or proper person to manage her brother’s property. The court found the Family Court was correct to revoke the EPOA because there was evidence that Mr Thomas was mentally incapable when he executed the EPOA and was vulnerable to being easily influenced by others, including his sister. The court also found that Ms Flavell exerted considerable influence and dominance over her brother and had engaged in a course of conduct designed to frustrate counsel’s attempts to obtain Mr Thomas’ views and, as a consequence, improperly limit the Court’s access to relevant information. The court found the Family Court was correct that Ms Flavell was not a fit or proper person to manage her brother’s property because she had extensive criminal convictions for offences of dishonesty and had a history of obstructing the court’s process. The appeal was dismissed and the respondent, as the successful party, would normally be entitled to an award of costs. The parties were invited to confer with a view to filing a consent memorandum as to costs. In the event of disagreement, memoranda were to be filed and served, not exceeding three pages, by a specified date.

Orders