Carrington v Carrington  NZFC 4817
Published 25 May 2018
Application for protection order — enduring power of attorney — review of actions taken under power of attorney — review of decisions made by attorney — psychological abuse — Care of Children Act 2004, s 8 — Domestic Violence Act 1995, s s 3, 11, 14 & 27 — Protection of Personal and Property Rights Act 1988, s 103 — MMM, JEM [representative ] v KTM FAM 2010-029-000141 8 November 2010.
In this application for a protection order, the applicant sought an order against one of his siblings in relation to contact with their mother who has dementia and resides in a rest home. The respondent opposed the protection order and sought review under s 103 of the applicant's exercise of power of attorney. The majority of the siblings supported both the applicants grant and exercise of power of attorney and the need for a protection order.
Finding that a domestic relationship did exist and that the applicant had authority to act as a litigation guardian on his mother's behalf, the court went on to briefly examine the history of the matter. The mother had previously lived with the respondent until shortly after she was hospitalised with a broken hip. The respondent refused to comply with directions given by his mother's health professionals about her care and rehabilitation. Serious concerns with the lack of continuous supervision and care, led to the applicant to exercise the power of attorney and place their mother into a rest home. Although undertakings were entered into with the respondent to allow safe contact with his mother he continued to breach all understandings. An interim injunction disallowing the respondent from removing his mother from the rest home was granted and subsequently breached.
The court found that although the respondent's motivations were genuine his actions, particularly in continuing to upset his mother by discussing legal matters, the family dispute, medical assessments and the rest home amounts to domestic violence. In determining that an order was necessary the court took into account the
respondent's unwillingness to accept his mother's lack of capacity and physical limitations sharing the family's concern that the behaviour would continue if no further restriction or clear risk of adverse consequence was put in place.
A final protection order was issued against the respondent with the condition that contact, which may involve supervision occur between the respondent and his mother. The basis of which must be agreed to by the applicant. The Court declined to limit the contact at this stage preferring that the decision is made by the respondent, the mother and the rest home, dependant on how the respondent continues to behave. The interim injunction was was discharged in preference to the protection order. Following the finding that a protection order was necessary, the court found there was no basis for review of the decision-making by the appellant in his role of attorney and the application for directions under s 103 was dismissed.
Judgment Date: 26 June 2017 .
* * * Note: Names have been changed to comply with legal requirements * * *