Rothera v Rothera - [2018] NZHC 375

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

https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/ THIS IS AN ANONYMISED VERSION OF THE JUDGMENT AND MAY BE PUBLISHED IN THIS FORM.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-2126

[2018] NZHC 375

BETWEEN
BRUCE CHARLES ROTHERA

Appellant

AND

ADELAIDE ANNE ROTHERA

Respondent

Hearing: 13 February 2018

Appearances:

G J Thwaite for Appellant A Gluestein for Respondent

R von Keisenberg, to assist the Court

Judgment:

9 March 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 9 March 2018 at 3.00pm pursuant to Rule
11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
G J Thwaite, Auckland Spencer Legal, Auckland Counsel:
A Gluestein, Auckland
R von Keisenberg, Auckland

ROTHERA v ROTHERA [2018] NZHC 375 [9 March 2018]

Introduction

[1] Bruce Rothera appeals a decision of the Family Court making a final order under s 8 of the Protection of Personal and Property Rights Act 1988 (PPPR Act) providing care arrangements for his wife, Adelaide Rothera, who suffers from dementia. Mr Rothera asserts that conditions imposed by the Family Court judge are too restrictive and need to be amended or removed.

[2] The essence of Mr Rothera’s complaint with the Family Court’s decision is that the order does not allow Mr Rothera to play a sufficiently influential role in decisions about Mrs Rothera’s care and gives too much control to the Welfare Guardian appointed for Mrs Rothera under s 12 of the PPPR Act. Underlying that complaint is a fear that Mrs Rothera may be placed in a residential care facility without Mr Rothera’s consent and a breakdown in the relationship between Mr Rothera and the Welfare Guardian.

[3] Mr Rothera’s appeal is opposed by the Welfare Guardian, by counsel for Mrs Rothera appointed by the Family Court and by the two adult daughters of Mr and Mrs Rothera.

Background

[4] Mrs Rothera is 79 years of age. She and Mr Rothera have been married since November 1959. They have three children: two daughters, Janet Signy, Barbara Halley, and one son, Anthony Rothera.

[5] In 2012, Mrs Rothera was diagnosed as having a gradual decline in cognitive function.

[6] On 14 March 2013, Mrs Rothera signed enduring powers of attorney giving Ms Signy, as attorney, and Ms Halley, as successor attorney, power to make decisions regarding Mrs Rothera’s care and welfare on the one hand and property on the other. Ms Signy and Ms Halley say that their mother, who had seen her own parents succumb to Alzheimer’s Disease, made a deliberate decision to entrust her future care arrangements to her daughters.

[7] In 2015 Mrs Rothera was diagnosed as having advanced Alzheimer’s Dementia with behavioural difficulties. Her condition has continued to deteriorate with a consequential need…

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 Rothera v Rothera

Details

AGLC: Rothera v Rothera [2018] NZHC 375
Case: [2018] NZHC 375
Decision Date: 9 March 2018

CaseChat Overview and Summary

In the High Court of New Zealand, Bruce Rothera appealed a Family Court decision about the care arrangements for his wife, Adelaide Rothera, who suffers from dementia. The Family Court had made a final order under s 8 of the Protection of Personal and Property Rights Act 1988 (PPPR Act) providing care arrangements for Mrs Rothera. Mr Rothera argued that the conditions imposed by the Family Court judge were too restrictive and needed to be amended or removed. He claimed that the order did not allow him to play a sufficiently influential role in decisions about Mrs Rothera’s care and gave too much control to the Welfare Guardian appointed for Mrs Rothera. The Welfare Guardian, Mrs Rothera's two daughters, and the two adult daughters of Mr and Mrs Rothera opposed the appeal. The appeal was dismissed and the personal orders made by the Family Court were reaffirmed. The Court held that the arrangements in the personal orders were appropriate and necessary in the circumstances.

Orders