AKL - [2020] NSWCATGD 78

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: AKL [2020] NSWCATGD 78
Hearing dates: 26 August 2020
Date of orders: 26 August 2020 (Guardianship Application)
7 September 2020 (Financial Management Application)
Decision date: 07 September 2020
Jurisdiction: Guardianship Division
Before: J S Currie, Senior Member (Legal)
Dr S Williams, Senior Member (Professional)
S Bullock, General Member (Community)
Decision:
GUARDIANSHIP APPLICATION
The application is dismissed because QNT has withdrawn the application and the Tribunal consents.
FINANCIAL MANAGEMENT APPLICATION
1. The estate of AKL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of AKL is committed to the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within 12 months.

Catchwords:
GUARDIANSHIP – application for a guardianship order – dispute over access and communication with each parent – conciliation between parties – terms of settlement – request to withdraw application – consent to withdrawal of application
FINANCIAL MANAGEMENT – application for a financial management order – beneficial entitlements to advances or distributions from a family trust – uncertainty on availability of disability support pension – financial issues unable to be resolved informally – suitability of proposed financial manager – need for independent assessment and legal advice – risk of deterioration of family relationships – appointment of NSW Trustee and Guardian in subject person’s best interests

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(a)
Guardianship Act 1987 (NSW), ss 4, 4(a), 25G
NSW Trustee and Guardian Act 2009 (NSW), s 39(a)

Cases Cited:
CJ v AKJ [2015] NSWSC 498
Fischer v Nemeske Pty Ltd [2016] HCA 11
G v G [2016] NSWSC 511
H v H [2015] NSW SC 837
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106
SLJ v RTJ [2017] NSWSC 137

Texts Cited:
Nil

Category: Principal judgment
Parties:
004: Guardianship Application

AKL (subject person)
QNT (applicant, carer)
RZL (carer)
Public Guardian (statutory party)

003: Financial Management Application
AKL (subject person)
RZL (applicant, carer)
QNT (carer)
NSW Trustee and Guardian (statutory party)
Representation:
Counsel:
J Hill (Separate Representative of Subject Person)
Solicitors:
Beswick Lynch Lawyers (T Lynch) (for RZL)

File Number(s): NCAT 2018/00220667
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP APPLICATION AND FINANCIAL MANAGEMENT APPLICATION

Background

AKL, aged 19 years, has been diagnosed with autistic spectrum disorder Level 3, moderate to severe intellectual disability (level 4 ASD), obsessive compulsive disorder, anxiety and epilepsy with ongoing seizures. AKL is reported to have delayed learning in all areas, to have difficulty with social interaction and to require supervision for self-care and…

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 AKL

Details

AGLC: AKL [2020] NSWCATGD 78
Case: [2020] NSWCATGD 78
Decision Date: 07 September 2020

CaseChat Overview and Summary

The case involved an application for a guardianship order and a financial management order on behalf of AKL, who has cognitive impairment. The dispute centred around the access and communication between AKL and each of the parents, as well as the management of AKL’s finances. The matter was heard by the New South Wales Civil and Administrative Tribunal (NCAT). The legal issues the court had to decide included whether to dismiss the guardianship application due to the withdrawal by one of the parties, and whether the financial management application should proceed with the appointment of a financial manager to oversee AKL’s estate.

The court began by considering the guardianship application. The application was withdrawn by the New South Wales Trustee and Guardian (QNT) and AKL consented to the withdrawal. The court noted that the parties had participated in conciliation and had reached terms of settlement. Given the withdrawal and consent, the court dismissed the guardianship application. Moving on to the financial management application, the court found that the parties were unable to resolve the financial issues informally and there was a risk of deterioration of family relationships. The court decided that an independent assessment and legal advice were necessary to determine the suitability of a proposed financial manager. Ultimately, the court concluded that it was in AKL’s best interests to appoint the NSW Trustee and Guardian as the financial manager, and made orders accordingly.

The court ordered that the estate of AKL be subject to management under the NSW Trustee and Guardian Act 2009 (NSW), with the management of the estate committed to the NSW Trustee and Guardian. The court also ordered that this decision be reviewed by the Tribunal within 12 months.

Orders

Orders of the court

GUARDIANSHIP APPLICATION

The application is dismissed because QNT has withdrawn the application and the Tribunal consents.

FINANCIAL MANAGEMENT APPLICATION

1. The estate of AKL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of AKL is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	AKL [2020] NSWCATGD 78
Hearing dates:	26 August 2020
Date of orders:	26 August 2020 (Guardianship Application) 7 September 2020 (Financial Management Application)
Decision date:	07 September 2020
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal) Dr S Williams, Senior Member (Professional) S Bullock, General Member (Community)
Decision:	GUARDIANSHIP APPLICATION The application is dismissed because QNT has withdrawn the application and the Tribunal consents. FINANCIAL MANAGEMENT APPLICATION 1. The estate of AKL is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of AKL is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months.
Catchwords:	GUARDIANSHIP – application for a guardianship order – dispute over access and communication with each parent – conciliation between parties – terms of settlement – request to withdraw application – consent to withdrawal of application FINANCIAL MANAGEMENT – application for a financial management order – beneficial entitlements to advances or distributions from a family trust – uncertainty on availability of disability support pension – financial issues unable to be resolved informally – suitability of proposed financial manager – need for independent assessment and legal advice – risk of deterioration of family relationships – appointment of NSW Trustee and Guardian in subject person’s best interests
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(a) Guardianship Act 1987 (NSW), ss 4, 4(a), 25G NSW Trustee and Guardian Act 2009 (NSW), s 39(a)
Cases Cited:	CJ v AKJ [2015] NSWSC 498 Fischer v Nemeske Pty Ltd [2016] HCA 11 G v G [2016] NSWSC 511 H v H [2015] NSW SC 837 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 P v NSW Trustee and Guardian [2015] NSWSC 579 Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106 SLJ v RTJ [2017] NSWSC 137
Texts Cited:	Nil
Category:	Principal judgment
Parties:	004: Guardianship Application AKL (subject person) QNT (applicant, carer) RZL (carer) Public Guardian (statutory party) 003: Financial Management Application AKL (subject person) RZL (applicant, carer) QNT (carer) NSW Trustee and Guardian (statutory party)
Representation:	Counsel: J Hill (Separate Representative of Subject Person) Solicitors: Beswick Lynch Lawyers (T Lynch) (for RZL)
File Number(s):	NCAT 2018/00220667
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.