P v O - [2023] NZHC 2249

NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, 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 PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CIV-2023-454-014

[2023] NZHC 2249

BETWEEN
P

Appellant

AND

O

Respondent

Hearing: 15 August 2023

Counsel:

Appellant in person

C T C Bell for Respondent

G Niven for Chief Executive, Oranga Tamariki L M Faimalie – lawyer for the child

S E Hughes – counsel to assist the Court

Judgment:

18 August 2023

JUDGMENT OF RADICH J

[1] The only issue before the Court at this point in the proceeding is whether P is an incapacitated person (as that term is defined in the High Court Rules) such that litigation guardian should be appointed as her representative in this appeal.

[2] For the reasons I go on to give, I am satisfied that P is an incapacitated person and that a litigation guardian should be appointed to assist her.

[3] The appointment of a litigation guardian in circumstances such as these has been described as being for the purpose of levelling the playing field to enable

P v O [2023] NZHC 2249 [18 August 2023]

someone who needs that assistance to be able to participate in a proceeding on equal terms with other litigants.1 That is what the Court is seeking to achieve here.

Background

[4] P and O separated in June 2020 when their daughter (who I refer to in this decision as “A”) was 18 months old. Later that year, proceedings were commenced in the Family Court over contact on the part of O and P respectively with A.2

[5] The Family Court proceedings have become complex. Interim contact orders were made in O’s favour in late 2021. The orders were not complied with by P. The overarching factor, from which the broad range of issues in the Family Court stem, was described in her Honour Judge Moss’ 9 December 2022 decision in the following way:3
[2] The mother fervently believes the father has sexually assaulted A, and that he remains a serious risk to her safety. She will not communicate with the father, and will only enable contact if she is required to by Court order. She has previously thwarted court orders for contact.

[3] The father wants to share the care of A with the mother; but is frightened that the mother’s beliefs about his assaulting A, which he rejects, will cause harm to A, because the mother will infect A with this belief.

[6] Events, following from P’s beliefs, led, on 28 April 2022, to the Family Court making an order on a without notice application placing A under the guardianship of the Court, appointing Oranga Tamariki as agent and directing the transfer of A’s care to O.

[7] Various…

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 P v O

Details

AGLC: P v O [2023] NZHC 2249
Case: [2023] NZHC 2249
Decision Date: 18 August 2023

CaseChat Overview and Summary

The High Court of New Zealand in Palmerston North heard an appeal brought by P against a decision of the Family Court. The primary issue before the court was whether P, the appellant, was an incapacitated person as defined by the High Court Rules, thereby necessitating the appointment of a litigation guardian to represent her in the appeal proceedings. The court considered the implications of P's mental health status, her capacity to understand and participate in the litigation, and the necessity for a litigation guardian to ensure the just and expeditious management of the appeal.

The legal principles guiding the court's decision involved assessing P's capacity to participate in the litigation based on her ability to understand the issues, purpose, possible outcomes, and risks of the proceedings. The court had to determine if P's mental impairments, specifically a likely delusional disorder, rendered her unable to conduct the litigation effectively. The court also noted the importance of ensuring P's right to access justice, especially given the complexity of the appeal. The court acknowledged the potential for P's condition to impede her capacity in the specific context of the litigation, even if she was capable in other areas of her life.

After carefully reviewing the clinical reports and other documents, the court found that P was indeed an incapacitated person as per the High Court Rules. The detailed findings from the reports, along with P's inability to comprehend the intricate nature and extensive requirements of the appeal, led the court to this conclusion. The court also took into account P's lack of consent to the appointment of a litigation guardian but deemed it necessary for the proper conduct of the proceedings. The court appointed Ms Kelly Neill, a barrister and solicitor with relevant expertise, as the litigation guardian for P. The court also ordered a case management conference to address procedural matters in the appeal.

The court's orders included the appointment of Ms Kelly Neill as the litigation guardian for P, the scheduling of a case management conference to address procedural issues, and the reservation of costs on the application.

Orders