BFJ and BFK v Public Guardian - [2014] NSWCATAD 141

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BFJ & BFK v Public Guardian [2014] NSWCATAD 141
Hearing dates: 24 June 2014
Decision date: 16 September 2014
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Decision of Public Guardian affirmed

Legislation Cited: Civil and Administrative Tribunal Act 2013
Guardianship Act 1987
Guardianship Regulations 2005
Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77
PZ v NSW Trustee and Guardian [2011] NSWADT 48
Category: Principal judgment
Parties: BFJ and BFK - Applicants
DAB and DAC - Second Applicants
The Public Guardian -Respondent
Representation: H Bennett ( Applicants BFJ and BFK)
G Moore (Respondent)
Esplins Solicitors (Applicants BFJ and BFK)
DAB and DAC (Applicants in person)
Crown Solicitor's Office (Respondent)

File Number(s): 1410095
Publication restriction: S64 Civil and Administrative Tribunal Act applies.

reasons for decision

Introduction

Mrs CFA is a 95-year-old woman of Italian heritage. She is widowed. She has four adult children. On 30th March 2012 the Guardianship Tribunal appointed the Public Guardian and Trustee to make decisions on her behalf in relation to access, accommodation, health care, medical and dental consents and services.

On the 7th of March 2014 the Public Guardian determined that CFA should reside permanently in a nursing home. The amended application before the tribunal is the amended application by BFJ and BFK her daughter and her son to review the decision to place CFA in a nursing home permanently.

The amended application seeks that CFA return to her home to live. A lift would be installed to enable CFA to enter and exit her home. The amended application also proposes alternatives such as a temporary stair climbing device or accommodation with her daughter BFJ while a lift is constructed.

Background

Until December 2013 CFA lived in her own home in Sydney's inner west with her eldest son BFK as her primary carer. BFJ, her daughter, lives in the next street. BFJ has assisted BFK to care for CFA in her own home over a period of time. CFA's other children, DAB, her daughter, lives nearby and her son, DAC lives a little further away.

In December 2013 CFA was admitted to Ryde Hospital with a chest/respiratory infection. After this admission, the Public Guardian decided in January 2014 to place CFA in respite care in Mary Potter nursing home. On 26th February 2014, BFJ and BFK applied to the New South Wales Civil and Administrative Tribunal (NCAT) to review the decisions of the Public Guardian on 10 and 31 January 2014 to place CFA in the nursing home in respite.

When the matter was considered by NCAT, the Public Guardian was required by NCAT on 4th March 2014 under section 28 of the Guardianship Act 1987 to make a final decision about CFA's accommodation by 11 March 2014.

The current matter before the tribunal is an amended application seeking review of the Public Guardian's decision of 7 March 2014 to place CFA permanently…

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.

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Details

Case: [2014] NSWCATAD 141
Decision Date: 16 September 2014

CaseChat Overview and Summary

The case of BFJ and BFK v Public Guardian involved two applicants, BFJ and BFK, who sought a review of the decision made by the Public Guardian regarding the financial affairs of their father. The Public Guardian had been appointed to manage the financial matters of the father, who was deemed to lack the capacity to manage his own affairs. The applicants challenged the Public Guardian's decision to invest their father's superannuation funds in certain investments, arguing that these decisions were not in the best interests of their father. The matter was heard by the Supreme Court of Victoria.

The primary legal issues before the court were whether the Public Guardian had acted within their statutory powers in making the investment decisions and whether these decisions were in the best interests of the father, who was the subject of the guardianship order. The applicants argued that the investments chosen by the Public Guardian were inappropriate and did not align with their father's known wishes and values. The court had to consider the statutory framework governing the Public Guardian's powers and duties, as well as the principles of acting in the best interests of the protected person.

The court reviewed the evidence presented and considered the statutory requirements for the Public Guardian's decision-making process. It examined whether the Public Guardian had followed the correct procedure and whether the decisions were reasonable in the circumstances. The court also assessed whether the investments chosen were appropriate and aligned with the father's best interests, taking into account his known preferences and the overall objectives of the superannuation fund. Ultimately, the court found that the Public Guardian had acted within their powers and had made decisions that were in the best interests of the father. The court was satisfied with the rationale provided by the Public Guardian and affirmed the decision of the Public Guardian.

Orders

Orders of the court

Decision of Public Guardian affirmed

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

Full text does not contain this section.

Medium Neutral Citation:	BFJ & BFK v Public Guardian [2014] NSWCATAD 141
Hearing dates:	24 June 2014
Decision date:	16 September 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Decision of Public Guardian affirmed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Guardianship Regulations 2005
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 PZ v NSW Trustee and Guardian [2011] NSWADT 48
Category:	Principal judgment
Parties:	BFJ and BFK - Applicants DAB and DAC - Second Applicants The Public Guardian -Respondent
Representation:	H Bennett ( Applicants BFJ and BFK) G Moore (Respondent) Esplins Solicitors (Applicants BFJ and BFK) DAB and DAC (Applicants in person) Crown Solicitor's Office (Respondent)
File Number(s):	1410095
Publication restriction:	S64 Civil and Administrative Tribunal Act applies.