BSC - [2019] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BSC [2019] NSWCATGD 22
Hearing dates: 7 November 2019
Date of orders: 07 November 2019
Decision date: 07 November 2019
Jurisdiction: Guardianship Division
Before: A D Suthers, Principal Member
A M Matheson, Senior Member (Professional)
M A Oxenham, General Member (Community)
Decision:
1. A guardianship order is made for BSC.

2. WQC of [address removed for publication] is appointed as the guardian.

3. This is a continuing guardianship order for a period of one year from 7 November 2019.

4. This is a limited guardianship order giving the guardian(s) custody of BSC to the extent necessary to carry out the functions below.

FUNCTION:

5. The guardian has the following function:

a) Legal services

To make decisions for BSC in relation to access to legal services.

CONDITION:

6. The condition of this order is:

a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring BSC to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords: GUARDIANSHIP – application for a guardianship order – subject person with traumatic brain injury – whether a guardianship order should be made – family law proceedings – capacity to instruct – subject person supports an order being made – subject person has supportive parents – private guardian appointed – order made.
Legislation Cited: Guardianship Act 1987 (NSW) ss 3(1)-(2), 4, 14(1)-(2), 15(3)
Cases Cited: CS and MY v The Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
Re B [2011] NSWSC 1075
W v G [2003] NSWSC 1170
Texts Cited: Nil
Category: Principal judgment
Parties: BSC (the person)
WQC (applicant, carer)
Public Guardian
Representation: Nil

File Number(s): NCAT 2015/00385758
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal made orders as set out above.

Background

BSC is a 40-year-old man who lives in a rural town with his parents, WQC (the mother) and QZC (the father). BSC previously resided with his ex-wife, and their children in another regional location.
BSC has been living with his parents since he separated from his wife in April 2019.
On 9 May 2015, BSC was admitted to a hospital following an unwitnessed mountain bike accident, which resulted in him sustaining a traumatic brain injury.
On 13 September 2019, the Tribunal received a guardianship application, lodged by the mother, proposing herself as guardian to assist her son with the legal proceedings resulting from his separation from his wife. There are issues to be arranged regarding BSC’s parental obligations and the division of property between him and his wife.
In the material filed with the application, the mother advised that BSC has been told by his family lawyer that he requires…

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

AGLC: BSC [2019] NSWCATGD 22
Case: [2019] NSWCATGD 22
Decision Date: 07 November 2019

CaseChat Overview and Summary

The applicant, WQC, sought a guardianship order for BSC, who has suffered a traumatic brain injury. The matter was heard in the Family Court of Australia. The primary issue before the court was whether a guardianship order should be made for BSC, considering his medical condition and his capacity to instruct. Additionally, the court had to determine the appropriate type of guardianship order, its duration, and the functions of the guardian.

The court considered the evidence of BSC's capacity to instruct and make decisions for himself, which was significantly impaired due to his brain injury. The subject person expressed support for the application and for the appointment of a private guardian. The court also took into account the supportive role of BSC's parents and the benefits of a guardianship order in facilitating BSC's access to legal services. The court concluded that a guardianship order was necessary to protect BSC's interests and ensure he received appropriate support.

The Family Court of Australia determined that a guardianship order should be made for BSC, with WQC appointed as the guardian. The order is a continuing guardianship order for a period of one year, commencing from 7 November 2019. The order is also a limited guardianship order, granting the guardian custody of BSC to the extent necessary to carry out specific functions, including making decisions in relation to access to legal services. The guardian is required to take reasonable steps to ensure BSC understands the issues and considers his views before making significant decisions.

The court's final orders include the appointment of WQC as the guardian for BSC, with specific functions and conditions attached to the order. The order ensures that BSC's legal needs are met while providing him with the necessary support and protection.

Orders

Orders of the court

1. A guardianship order is made for BSC.

2. WQC of [address removed for publication] is appointed as the guardian.

3. This is a continuing guardianship order for a period of one year from 7 November 2019.

4. This is a limited guardianship order giving the guardian(s) custody of BSC to the extent necessary to carry out the functions below.

FUNCTION:

5. The guardian has the following function:

a) Legal services

To make decisions for BSC in relation to access to legal services.

CONDITION:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring BSC to an understanding of the issues and to obtain and consider his views before making significant decisions.

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:	BSC [2019] NSWCATGD 22
Hearing dates:	7 November 2019
Date of orders:	07 November 2019
Decision date:	07 November 2019
Jurisdiction:	Guardianship Division
Before:	A D Suthers, Principal Member A M Matheson, Senior Member (Professional) M A Oxenham, General Member (Community)
Decision:	1. A guardianship order is made for BSC. 2. WQC of [address removed for publication] is appointed as the guardian. 3. This is a continuing guardianship order for a period of one year from 7 November 2019. 4. This is a limited guardianship order giving the guardian(s) custody of BSC to the extent necessary to carry out the functions below. FUNCTION: 5. The guardian has the following function: a) Legal services To make decisions for BSC in relation to access to legal services. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring BSC to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person with traumatic brain injury – whether a guardianship order should be made – family law proceedings – capacity to instruct – subject person supports an order being made – subject person has supportive parents – private guardian appointed – order made.
Legislation Cited:	Guardianship Act 1987 (NSW) ss 3(1)-(2), 4, 14(1)-(2), 15(3)
Cases Cited:	CS and MY v The Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) Re B [2011] NSWSC 1075 W v G [2003] NSWSC 1170
Texts Cited:	Nil
Category:	Principal judgment
Parties:	BSC (the person) WQC (applicant, carer) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2015/00385758
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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).