A and J [2006] WASAT 287

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 287
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:442/2005	Heard:	13 MARCH 2006 10 APRIL 2006 29 AUGUST 2006
Coram:	MS J TOOHEY (SENIOR MEMBER) DR G HAMILTON (SENIOR SESSIONAL MEMBER) MR S JONGENELIS (SENIOR SESSIONAL MEMBER)	Delivered:	21/09/06
No of pages:	21	Judgment Part:	1 of 1
Result:	Applications dismissed
Category:	B
PDF Version

Parties:	A J
Catchwords:	Guardianship Administration Intellectual disability Guardianship order sought in order to monitor proposed represented person's relationship with fiance Proposed represented person vulnerable to exploitation and abuse Fiance convicted of sex-related offences Conflicting capacity evidence No immediate need for a guardian alleged Proposed represented person in need of oversight and care but not in need of a guardian Most of proposed represented person's estate subject of a trust Capable of managing financial affairs Not in need of an administrator
Legislation:	Guardianship and Administration Act 1990 (WA)
Case References:	Abebe v Commonwealth (1999) 197 CLR 510, 576 Bushell v Repatriation Commission (1992) 175 CLR Dranichnikov v MIMA (2003) 197 ALR 389 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : A and J [2006] WASAT 287 MEMBER : MS J TOOHEY (SENIOR MEMBER)

DR G HAMILTON (SENIOR SESSIONAL MEMBER)

MR S JONGENELIS (SENIOR SESSIONAL MEMBER)

HEARD : 13 MARCH 2006

10 APRIL 2006

29 AUGUST 2006

DELIVERED : 21 SEPTEMBER 2006 FILE NO/S : GAA 442 of 2005

GAA 626 of 2005

BETWEEN : A

Applicant

AND

Proposed Represented Person

Catchwords:

Guardianship - Administration - Intellectual disability - Guardianship order sought in order to monitor proposed represented person's relationship with fiance - Proposed represented person vulnerable to exploitation and abuse - Fiance convicted of sex-related offences - Conflicting capacity evidence - No

(Page 2)

immediate need for a guardian alleged - Proposed represented person in need of oversight and care but not in need of a guardian - Most of proposed represented person's estate subject of a trust - Capable of managing financial affairs - Not in need of an administrator

Legislation:

Guardianship and Administration Act 1990 (WA)

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Applicant : Mr P Ward

Proposed Represented Person : Ms M Jurek

Solicitors:

Applicant : Peter Ward

Proposed Represented Person : Butcher Paull & Calder

Case(s) referred to in decision(s):

Abebe v Commonwealth (1999) 197 CLR 510, 576
Bushell v Repatriation Commission (1992) 175 CLR
Dranichnikov v MIMA (2003) 197 ALR 389

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicant asked the Tribunal to appoint a guardian and an administrator for her sister, J, who has an intellectual disability. J was the sole beneficiary of a trust established by her deceased father and was expected to receive a damages payout in relation to a motor vehicle accident. The applicant believed that J was at risk of financial,…

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 A and J

Details

AGLC: A and J [2006] WASAT 287
Case: [2006] WASAT 287
Decision Date: 21 SEPTEMBER 2006

CaseChat Overview and Summary

A sought a guardianship order for J, an individual with an intellectual disability, to protect J from potential exploitation and abuse by J's fiancé, who had a history of sex-related offenses. The court was tasked with determining whether J required a guardian and whether an administrator should be appointed for J's estate. The evidence presented conflicting views on J's capacity, but it was clear that J was vulnerable and in need of oversight and care. However, there was no immediate necessity for a guardian. J was capable of managing their financial affairs, and most of J's estate was subject to a trust, thereby reducing the need for an administrator.

The court considered the nature of the relationship between J and their fiancé, acknowledging the potential risks posed by the fiancé's criminal history. Despite this, the court found no immediate need for a guardian, as J appeared to be capable of making informed decisions regarding their personal relationships and financial affairs. The conflicting evidence about J's capacity did not lead the court to conclude that J required a guardian. The court's decision was influenced by the absence of an immediate need for intervention and J's demonstrated capacity in certain areas.

The court dismissed the applications for both a guardianship order and the appointment of an administrator for J's estate. The reasoning was that, while J required support and oversight, there was no immediate necessity for these applications to be granted. J's capacity to manage their affairs, combined with the existing trust arrangements, meant that the court did not see the need for additional oversight in these areas.

Orders

Orders of the court

Applications dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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