BCD v XYZ

[2013] NSWSC 405

Supreme Court

New South Wales

Medium Neutral Citation:	BCD v XYZ [2013] NSWSC 405
Hearing dates:	12 April 2013
Decision date:	12 April 2013
Jurisdiction:	Equity Division - Protective List
Before:	Kunc J
Decision:	BCD appointed as guardian of XYZ
Catchwords:	FAMILY LAW - guardianship of person - parens patriae jurisdiction of Supreme Court - jurisdiction not confined to preventing immediate risk - jurisdiction available to promote minor's welfare
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	Hope v Hope 4 De GM&G 328 AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000) 49 NSWLR 231
Category:	Principal judgment
Parties:	BCD XYZ
Representation:	C. Zucker, solicitor Zucker Legal (plaintiff)
File Number(s):	SC 2013/68576
Publication restriction:	Nil

Judgment

1. HIS HONOUR: The plaintiff, B, seeks an order that she be appointed guardian of the defendant, her younger sister, X. For convenience and without any disrespect I shall refer to them by their Christian names.

1. In January 2004 B's and X's parents died in a motor vehicle accident. Their two other siblings died in the same motor accident. Under the wills of their parents their paternal uncle, M, and his wife, J, were appointed testamentary guardians of B and X. They exercised that function for a number of years.

1. B is now 22 years of age and is a student at law at university. X is 16 years of age and a Year 11 secondary student. When B finished school, she moved away from her uncle and aunt to a university residential college and subsequently a rental apartment in Crows Nest. In 2011 B purchased and moved into an apartment in Annandale where she now lives. She proposes to continue to live in that apartment.

1. M and J, the testamentary guardians of both girls, separated in 2011 when X was in Year 9. X then went to live with B at Annandale and has done so ever since.

B's suitability to be guardian

1. The evidence discloses that B is a mature and responsible young women currently studying for a law degree at university. She is clearly close to her younger sister. They have what she has described in evidence as a mutually supportive relationship.

1. However, she also recognises that if she is to become the guardian of her younger sister, it will involve from time to time the exercise of authority over her sister. She is prepared to do so and acknowledges the considerable responsibility that would come with an appointment as guardian.

1. X, similarly, presents as a mature and sensible young woman who has obviously endured tragic circumstances far better than many others might have. She also clearly has a close and affectionate relationship with her older sister. I am satisfied, however, that their relationship is one that also recognises the authority that her older sister will formally have over her if B is appointed her guardian.

1. I am satisfied that the domestic arrangements that are proposed, namely that X continue to reside at the Annandale apartment with B, are appropriate for X as she enters the last year and a half of her secondary education. B, on the evidence, organises her own study and other affairs to ensure that she is home when X is at home. She understands that assuming the role of guardian may well constrain some of the activities in which a young woman of her age in today's society may well wish to engage. She also understands that from time to time her role as guardian would require her or may require her to sacrifice her own interests in favour of those of her younger sister.

1. It follows that I am well satisfied that if a jurisdiction exists which I am able to exercise to appoint B as X's guardian until X reaches her majority, B is well suited to the task. I am also satisfied that the financial and living circumstances of both young women are appropriate and suitable to support them for that time during which B would have responsibility for X as the latter's guardian.

The need for a guardian

1. Before turning to consider the legal issues raised by this application, it is necessary for me to relate further facts which are disclosed in the evidence concerning particular reasons why it would be to the advantage of X for B to be her guardian.

1. Foremost among these is the fact, and I find it to be so, that X suffers from Type I Diabetes. Fortunately, this condition is presently well controlled. It requires X to monitor regularly the sugar content of her blood and to administer insulin daily by injection or pump as necessary. Nevertheless, while the condition is presently well controlled, in my view I am entitled to take notice of the fact that persons suffering from diabetes are, for example, susceptible in certain circumstances to become unconscious. There is evidence that there have already been occasions where medical personnel have declined to provide details of X's condition to B because B has no formal legal responsibility for her sister.

1. There have also been examples of difficulty in relation to other daily interactions, such as with X's school. Complications have arisen because B has not been able formally to sign permissions or do other things which a legally responsible parent would be able to do for his or her child. Some of those matters have been able to be resolved. For example, X's school will now accept B's signature on consent forms for excursions and the like in lieu of a parent or legal guardian. Nevertheless, staff at the school have raised doubts with B about what her execution of a consent really means and, more importantly, that if advice in relation to a medical condition were required, whether or not the school could legally take notice of instructions which B might give in the interests of X.

1. The evidence also discloses that there are other inconveniences which these young women experience with other institutions for want of B having formal legal responsibility for X. One example is that B has been unable to obtain an advantageous family rate for her and her sister from their medical health insurer due to B not formally being X's legal guardian.

1. Finally, it is important for me to record that the testamentary guardians, M and J, consent to B becoming X's guardian. In addition, evidence has been adduced from B and X's maternal aunt in support of this application. That same maternal aunt clearly takes a close interest in the affairs of B and X. Both of them in evidence informed me that that maternal aunt was somebody to whom either of them felt very comfortable having recourse if the advice of another adult was required in relation to X's affairs. I also accept X's evidence that the psychiatrist she sees regularly for counselling is of the view that it would benefit X's emotional well being if the relationship of responsibility which now exists between B and X were to be legally recognised.

The appropriate forum

1. The first question for me to consider is whether or not this matter ought properly be dealt with by the Guardianship Tribunal ("the Tribunal") constituted by the Guardianship Act 1987 (NSW) ("the Act"). While s8(1) of the Act preserves the jurisdiction of this Court with respect to the guardianship of persons, if the Tribunal has jurisdiction then this Court would be entitled to decline to exercise jurisdiction in favour of the application being considered by the Tribunal, which has specialised experience of such matters.

1. Mr Zucker, solicitor for B, has prepared, if I may say so, helpful and compendious submissions in support of her application. In those submissions he draws attention to the fact that the Tribunal only has jurisdiction where the person is a "person in need of a guardian" which s3(1) of the Act defines as "a person who, because of disability, is totally or partially incapable of managing his or her person". Section 3(2) of the Act provides:

(2) In this Act, a reference to a person who has a disability is a reference to a person:

(a) who is intellectually, physically, psychologically or sensorily disabled,

(b) who is of advanced age,

(c) who is a mentally ill person within the meaning of the Mental Health Act 2007 , or

(d) who is otherwise disabled,

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation.

1. The jurisdictional fact in s 14(1) of the Act for the Tribunal to make a guardianship order is for the Tribunal to be satisfied that the person is "a person in need of a guardian".

1. Mr Zucker also draws attention to the fact that in the information sheet to an application to the Tribunal, that information sheet makes it clear (though of course the information sheet cannot do more or less than what the Act provides) that the Tribunal must be satisfied that:

(a)   the person has a disability that affects their decision-making;

(b)   there is a current need for someone else to make personal decisions for them.

1. Without considering the matter in great detail, it seems to me clear enough that there is a real question as to whether, on the facts of this case, the Tribunal would have jurisdiction to deal with this application. I do not need to find definitively, as a matter of law, that the Tribunal does not have jurisdiction. It seems to me to be sufficient that where there is a real doubt about the jurisdiction of the Tribunal, a party is entitled to approach this Court to exercise its parens patriae jurisdiction. It is upon that jurisdiction which B's present application relies.

The parens patriae jurisdiction

1. The parens patriae jurisdiction of a Court such as this is of ancient origin. It goes back to the old Courts of Chancery. In the course of submissions Mr Zucker referred me to an expression of the jurisdiction by the then Lord Chancellor, Lord Cranworth, in Hope v Hope 4 De GM&G 328 at pp 344 and 345:

The jurisdiction of this Court, which is entrusted to the holder of the Great Seal as the representative of the Crown, with regard to the custody of infants rests upon this ground, that it is the interest of the State and of the Sovereign that children should be properly brought up and educated; and according to the principle of our law, the Sovereign, as parens patriae, is bound to look to the maintenance and education (as far as it has the means of judging) of all his subjects.

1. Whilst that statement of general principle is undoubtedly helpful, as the jurisdiction has developed it has been described in subsequent authorities as having an essentially protective character. It is that characterisation which has given me some pause for thought in considering the question of whether the parens patriae jurisdiction would extend to the circumstances of the present case.

1. In AMS v AIF [1999] HCA 26; (1999) 199 CLR 160 at [85]-[86] Gaudron J described the parens patriae jurisdiction in these terms (citations omitted):

It has been said that the parens patriae jurisdiction is "an unrestricted jurisdiction to do whatever is considered necessary for the welfare of a [child]" and that "[i]ts limits ... have not, and cannot, be defined." However, the jurisdiction is not in principle supervisory. Rather, it is a jurisdiction which, in general terms, is exercised when there is some risk to a child's welfare.

If there is a risk to the welfare of a child, the parens patriae jurisdiction will support a great variety of orders and orders of great width. It has been said that it will support orders related to "categories of cases ... such as custody, care and control, protection of property, health problems, religious upbringing, and protection against harmful associations" and that "[t]hat list is not exhaustive ... [for] the orders of [a] court in this particular jurisdiction have always been described as being of the widest nature'.

1. In MAW v Western Sydney Area Health Service [2000] NSWSC 358; (2000) 49 NSWLR 231 at [27] and [31] O'Keefe J said (citations omitted):

Subject to the Commonwealth Constitution, the Supreme Court is a court of unlimited jurisdiction and as such has an inherent jurisdiction which is sufficiently wide to meet the requirements of the administration of justice. Such a jurisdiction includes a parens patriae jurisdictions ...

The parens patriae jurisdiction of the Court is essentially protective in nature and although broad, is to be exercised cautiously. Its existence and exercise are founded on a need to act on behalf of those who are in need of care and cannot act for themselves. In exercising its parens patriae jurisdiction the paramount consideration is the promotion of the health or welfare of the subject of the exercise of the jurisdiction. Its exercise should not be for the benefit of others. Furthermore, it has its limits.

1. In MAW O'Keefe J ultimately concluded (at [41]) that the parens patriae jurisdiction did not extend to the Court giving consent to the surgical procedure proposed in the Summons before him:

For the foregoing reasons I am of the opinion that within its limits as presently defined the parens patriae jurisdiction of the Court does not extend to authorising a non-therapeutic surgical procedure of the kind contemplated by the present application. It is not a procedure that is necessary to preserve the life of the patient. It is not a procedure which will safeguard, secure or promote, or prevent the deterioration in, the physical or mental health of the patient. It is not a procedure which will promote the well-being of the patient. In these circumstances it could only be authorised by the Court under its parens patriae jurisdiction if yet another special category or case is recognised in respect of the surgical procedure in question in the present case.

1. In my opinion, while the statements of principle in MAW are, with respect to his Honour, unimpeachable, it must be remembered that his Honour was considering and applying them in the extreme situation of consent being sought to a surgical procedure being performed upon an unconscious person. That is undoubtedly one proper application of the parens patriae jurisdiction. However, as the cases to which I have referred make clear, the jurisdiction is of a much wider application. Nevertheless, those cases also make it clear that the jurisdiction is not limitless.

1. It seems to me that it should not be exercised, that is to say I do not think that it extends, to permitting orders to be made merely for convenience or where all interested parties consent. On the other hand, the notion of a protective jurisdiction necessarily, in my opinion, goes beyond matters of protection from immediately identifiable physical, psychological or emotional harm. Nor, in my opinion, should references to the need for there to be a risk to a child's welfare be taken as definitive of the extent of the jurisdiction.

1. To focus on concepts of protection and risk in my opinion may lead to what I consider is an incorrectly narrow view of the scope of the jurisdiction. As Lord Cranworth's foundational dictum which I have quoted above makes clear, echoed by the references in MAW also quoted above to "the promotion of the health or welfare of the subject" and to "promote the well-being of the patient", the jurisdiction can be engaged to ensure the positive welfare of a person where there exists the real potential to do so, rather than just to prevent a proven immediate risk to that person's well-being.

Exercise of the jurisdiction in the present case

1. In the present case, it is X's medical condition which readily satisfies me that the jurisdiction can properly be exercised. Even the general management of X's condition requires consultation with medical professionals. Whilst no doubt mature and intelligent, X is still a minor. Those consultations ought take place in conjunction with an adult who is legally responsible for X's well-being.

1. While, fortunately, X has not had any urgent or serious medical incidents deriving from her condition, in particular unconsciousness, I have no difficulty in concluding that the Court must take into account the possibility of that occurring. Even on what I have described as a narrow view of the parens patriae jurisdiction, the medical matters to which I have adverted satisfy the requirement of there being a risk to X's welfare in the absence of the appointment of a legal guardian.

1. The reality of the situation is that for reasons which reflect no criticism upon them, X's testamentary guardians are no longer in a position to fulfil that function. More importantly, perhaps, in the present circumstances I regard myself as being entitled to take into account X's strongly stated preference that in circumstances where she is no longer living with or under the practical care of those testamentary guardians, she wishes to continue to live with and be under the care of her sister.

1. For these reasons it is clear to me that B ought to be appointed X's guardian.

1. What I have said thus far is confined to the application of what I have referred to as an unduly narrow view of the parens patriae jurisdiction. While I should make it clear that I would not be disposed to make the orders sought in the Summons if the evidence was confined to matters of practical convenience, for example, dealing with X's school about school excursions or being able to effect a particularly advantageous medical health insurance rate, I am of the view that the evidence supports a wider, positive basis for making the order, that is to say, one that is not merely focused upon X's medical condition and its possible consequences.

1. It is clear to me from the evidence, including having had the advantage of asking questions of both B and X, that it will promote X's well-being as a young person growing into adulthood to be under the care of her sister. While such matters may be difficult to identify with precision, ordinary human experience makes it quite clear that where there is a supportive family environment, albeit in this case a family environment that is confined to two sisters, the well-being of those persons, but particularly the person who is cared for, is more readily assured than in other circumstances. I am satisfied that it will be to X's advantage as she grows into adulthood to be under the care of her sister and no practical alternative has presented itself in the evidence.

1. In making these comments I am not to be taken as in any way criticising any other member of B and X's surviving family, whether by blood or by marriage. Members of their extended family have obviously played an important and valued role in ensuring the well-being of these two young women in very tragic circumstances. But as matters now present themselves I am satisfied, on any view of the parens patriae jurisdiction, that it is appropriate to exercise that jurisdiction to make an order appointing B as X's legal guardian until X turns 18.

1. Accordingly, I make the following orders:

(1)   Appoint B as the guardian of X.

(2)   Order that order 1 lapses, without further order of the court, on xxxxxx.

(3)   Order that the affidavits in the proceedings and the transcript of the proceedings be placed in a sealed envelope and not be released to any person without further order of a judge of the Court.

(4)   Order that for the purposes of describing these proceedings the plaintiff will be described as BCD and the defendant will be described as XYZ.

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Decision last updated: 23 April 2013