C v C - [2001] QSC 126

SUPREME COURT OF QUEENSLAND

CITATION: C v C [2001] QSC 126

PARTIES: C
(applicant)
v
C
(first respondent)
and
ADULT GUARDIAN
(second respondent)

FILE NO: S2225/01

DELIVERED ON: 2 May 2001

DELIVERED AT: Brisbane

HEARING DATE: 15 March 2001

JUDGE: Mullins J

ORDER:1. Application for leave to appeal against the decision of the Guardianship and Administration Tribunal made on
23 February 2001 is dismissed.
2. Each party is to bear the party's costs of the application.

CATCHWORDS: GUARDIANS – Guardianship and Administration Tribunal – application for leave to appeal decision of Tribunal – applicant sought guardianship of adult with impaired capacity
– whether error in Tribunal's fact finding process.
Guardianship and Administration Act 2000
Uniform Civil Procedure Rules 1999
Builders' Licensing Board v Sperway Constructions (Syd) Pty
Ltd (1976) 135 CLR 616
K v K [2000] NSWSC 1052 (3 November 2000)
S v S [2001] NSWSC 146 (9 March 2001) COUNSEL: Applicant in person
AC Wordsworth (solicitor) for the first respondent
D Barrett (solicitor) for the second respondent

SOLICITORS: Applicant in person
McCullough Robertson for the first respondent
Office of the Adult Guardian for the second respondent

[1] MULLINS J: The applicant is the mother of the adult with impaired capacity for matters who is the focus of this application and to whom I shall refer as John. The

2

first respondent ("the respondent") is the father of John. The respondent was appointed committee of the person of John by this Court on 14 September 1993. Each of the applicant and the respondent made an application on 24 July 2000 and
23 October 2000 respectively to the Guardianship and Administration Tribunal
("Tribunal") pursuant to the Guardianship and Administration Act 2000 ("Act") for appointment as the guardian of John.

[2] On 1 November 2000 the Tribunal comprising three members heard the applications, set aside the appointment of the respondent as committee of the person of John and ordered that the respondent be appointed guardian for John for the personal matters specified in the order which included where and with whom John lives, whether John works and, if so, the kind and place of work and the employer, what education or training John undertakes and day-to-day issues such as diet and dress. The Tribunal provided extensive written reasons for the decision. Additional orders made by the Tribunal in relation to the respondent's guardianship were:
"3.The guardian is required to abide by the general principles and the health care principle.
4.The guardian is to advise the Tribunal if there is any change to his appropriateness and competence to act.
5.Unless the Tribunal orders otherwise, this order remains current for three (3) years."

[3] The reference to "general principles" and the "health care principle" is a reference to those specified principles set out in Schedule 1 of the Act. Section 11(1) of the Act provides that a person or other entity who performs a function or exercises a power under the Act for a matter in relation to an adult with impaired capacity…

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 C v C

Details

AGLC: C v C [2001] QSC 126
Case: [2001] QSC 126
Decision Date: 2 May 2001

CaseChat Overview and Summary

In the matter of C v C, the Supreme Court of Queensland dismissed the applicant's application for leave to appeal against the decision of the Guardianship and Administration Tribunal made on February 23, 2001. The applicant sought leave to appeal the Tribunal's decision, which continued the order made on November 1, 2000, appointing the respondent as the guardian of John, an adult with impaired capacity. The applicant argued that the Tribunal erred in its fact-finding process and failed to grant her joint guardianship of John. The court considered the issues raised by the applicant, including whether John should have been present at the review hearing, the respondent's compliance with the recommendation to initiate whole of life planning, and the Tribunal's conclusion that it was unable to grant joint guardianship. The court found that the Tribunal's decision was not wrong and that this was not an appropriate matter for which leave to appeal should be given. Each party was ordered to bear their own costs for the application.

Orders