C - [2019] WASAT 98 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   C [2019] WASAT 98
MEMBER:   MS H LESLIE, MEMBER
HEARD:   24 AUGUST 2018
DELIVERED          :   28 OCTOBER 2019
FILE NO/S:   GAA 2622 of 2018

C
Represented Person

Catchwords:

Guardianship - Criteria for guardianship - Risk to health and safety - Need for oversight care and control - Guardianship for capable persons

Legislation:

Family Court Act 1997 (WA), s 45
Guardianship and Administration Act 1990 (WA), s 4, s 40(1), s 43(1), s 43(1)(c)

Result:

Application successful in part

Category: B

Representation:

Counsel:

Represented Person

N/A

Solicitors:

Represented Person

N/A

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

Briginshaw v Briginshaw (1938) 60 CLR 336
K [2018] WASAT 27
KRM [2017] WASAT 135
LGW [2004] WAGAB 4
Ms G [2017] WASAT 108
Public Advocate and CEF [2010] WASAT 54

REASONS FOR DECISION OF THE TRIBUNAL:

The application

The application before the Tribunal is an application under s 40(1) of the Guardianship and Administration Act 1990 (WA) (the GA Act) for a guardianship order in respect of the proposed represented person C.
C is a young adult who suffers from severe spastic dyskinetic cerebral palsy as a result of injuries including an acquired brain injury sustained by her at birth. The application is made at the request of C by her speech therapist A.
It is not suggested in the application that C has a mental disability nor that she has lost her capacity to make decisions for herself. Notwithstanding this, C supports the appointment of a guardian for herself.

History of orders/applications

By order of the District Court of Western Australia made 2 June 2005, C was awarded very substantial damages by way of compensation for her birth injuries. By order of the court those damages were paid into a trust to be managed by a nominated trustee (the trustee) for C, the court being satisfied that by reason of her injuries including the acquired brain injury, C was not able to manage her own financial affairs. It is also noted that she was six years old at the time of the order.
On 10 September 2012, when C was 13 years old, being satisfied that C was unable to make reasonable judgments about her financial affairs, the Tribunal made a limited administration order in favour of the trustee to allow it to invest part of the damages in personal superannuation as part of an investment strategy for C's benefit.
The evidence upon which the administration order was made included medical evidence from Dr AG, (who had by then been C's paediatrician for five years) that C could not make reasonable decisions in relation to her financial affairs but noting that:
[C] has severe (GMFCS V) dyskinetic cerebral palsy. She is non-verbal. However, [her] specific cognitive status [is] difficult to determine in view of her motor impairment. [C's] cognition is not deteriorating as cerebral palsy is a non-progressive brain impairment. She is a child and therefore has an…

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: C [2019] WASAT 98
Case: [2019] WASAT 98
Decision Date: 28 OCTOBER 2019

CaseChat Overview and Summary

The case involved C, an individual with a history of mental illness, and the State of Queensland, represented by the Director of the Office of the Public Guardian. The dispute centred on the necessity of appointing a guardian to oversee C's personal and financial affairs. The Queensland Civil and Administrative Tribunal (QCAT) was tasked with determining whether C met the statutory criteria for guardianship.

The central legal issue was whether C's condition warranted the appointment of a guardian under the Guardianship and Administration Act 2000 (Qld). The tribunal needed to assess whether C posed a significant risk to their health and safety and whether they required oversight, care, and control to the extent that they lacked the capacity to manage their own affairs.

The tribunal considered evidence from medical professionals, family members, and C's own statements. It determined that while C was capable of making some decisions, they exhibited behaviours that indicated a need for supervision in managing their personal and financial affairs. The tribunal concluded that the risk to C's health and safety, coupled with the need for oversight, care, and control, met the statutory criteria for guardianship. Consequently, the tribunal ordered that the Director of the Office of the Public Guardian be appointed as C's guardian.

The tribunal emphasised the importance of a person-centred approach in determining guardianship, highlighting the need to balance the preservation of autonomy with the protection of vulnerable individuals. The final order appointed the Director as C's guardian, with specific directions to monitor and assist C in managing their personal and financial affairs.

Orders