CM

[2009] QCAT 2

CITATION:  CM [2009] QCAT 2

PARTIES:   CM

APPLICATION NUMBER:            G8252

MATTER TYPE:   Guardianship and administration matters

HEARING DATE:   3 December 2009

HEARD AT:   Brisbane

DECISION OF:   Professor Adrian Ashman
  Barbara Bayne
  Elissa Morriss

DELIVERED ON:   3 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:   Hearing is adjourned to 29 January 2009 at
  259 Queen Street Brisbane

Under section 75(1) of the Queensland Civil
  and Administrative Tribunal 2009 the Tribunal

refers the subject matter of the proceedings

of 3 December 2009 being the review of

administration appointments and a claim by

TJ for compensation on behalf of

CM for mediation by a

Mediator appointed by the Tribunal to be held

On 21 January 2010

CATCHWORDS:  Review of administration; GAA s31; refer to

mediation; QCAT Act s75(1)

APPEARANCES and REPRESENTATION (if any):

TJ; Mr Brian Norman

(representing the Public Trustee of

Queensland)

REASONS FOR DECISION

1. On 18 August 2009, the Tribunal appointed TJ as administrator for managing CM’s Centrelink payments and the Public Trustee of Queensland to manage CM’s financial matters other than Centrelink payment. Both appointments were for one year.

1. The Guardianship and Administration Tribunal considered that its decision of 18 August 2009 provided security for CM’s substantive asset (in the vicinity of $240,000) but also enabled CM’s day-to-day affairs to be manage by his step-father, TJ. At the time the Guardianship and Administration Tribunal also appointed TJ as CM’s guardian with limited responsibilities. TJ’s dual appointment was seen to be in CM’s best interest to ensure that his day-to-day needs could be accommodated by his Centrelink pension.

1. On 18 August 2009 the Guardianship and Administration Tribunal was of the view that its appointments provided CM with long-term financial security and flexibility in terms of his day-to-day needs.

1. Those arrangements do not seem to be working, The information provided to the Queensland Civil and Administrative Tribunal (the Tribunal) during the hearing indicates considerable conflict has once again emerged between CM and representatives of the Public Trustee of Queensland. Shortly after the Guardianship and Administrative Tribunal hearing, a mediation was held between the two parties; the mediator was a person that the Guardianship and Administration Tribunal appointed as CM’s separate representative for its 18 August 2009 hearing. It seems as though that individual is no longer engaged or involved in CM’s life and that TJ and the Public Trustee of Queensland hold quite different views about what arrangements were made and agreements reached during a mediation.

1. It is the Tribunal’s view that the Guardianship and Administration Tribunal’s decision remains a sensible one in light of CM’s age, his current assets, and future needs. That TJ now appears unable to reach a compromise with the Public Trustee of Queensland in terms of the release of funds from assets held by the Public Trustee of Queensland would suggest that decisions made by one or both of the administrators  are likely to compromise CM’s future opportunities and financial security.

1. The Tribunal gave consideration to a plenary appointment of an administrator. However, this does not appear to be the most appropriate solution at this stage as one that is in CM’s best interest. If the Public Trustee of Queensland is given a plenary appointment, then TJ has said explicitly that he will not communicate with the Public Trustee and this position calls into question his ability to act effectively as CM’s guardian, a role and responsibility that was given to him by the Guardianship and Administration Tribunal on 18 August 2009. If TJ were appointed as plenary administrator, he indicated that he would progressively dispose of a significant portion of CM’s assets with a relatively short-term view of enabling CM to qualify for Centrelink benefits. Neither of these options appears to be in CM’s best interest, especially as his well-being is challenged by mental health and criminal justice system issues. The Tribunal believes that the communication breakdown between the administrators is serious and requires immediate attention.

1. As a result of changes to Queensland legislation and the inauguration of the Queensland Civil and Administrative Tribunal, there are now dispute resolution mechanisms that were not available to the Guardianship and Administration Tribunal. The matters raised during the hearing lend themselves to alternative dispute resolution mechanism. The conflict between parties as described by TJ and Mr Norman, representing the Public Trustee of Queensland, would have typically led to a plenary appointment but this is no longer the Tribunal’s only option. Section 75 of the QCAT Act reads as follows:

75 Referral by tribunal or principal registrar
(1) The tribunal or the principal registrar may refer the subject
matter, or a part of the subject matter, of a proceeding for
mediation by a mediator appointed by the tribunal or principal
registrar.
(2) A referral under subsection (1) may be made with or without
the consent of the parties to the proceeding.
(3) The principal registrar must give each party to the proceeding
written notice of the referral for mediation as stated in the
rules.
(4) If the tribunal or principal registrar decides to refer the subject
matter or part for mediation by a mediator under the Dispute
Resolution Centres Act 1990, it is sufficient if the tribunal or
principal registrar appoints the director of a specified dispute
resolution centre as mediator.

1. Therefore, this Tribunal applies section 75 and sets 21 January 2010 as the date for a mediation between TJ, on behalf of CM, and the Public Trustee of Queensland. The Tribunal, therefore, refers the matters that have been considered in the hearing for mediation by a mediator appointed by the Tribunal

1. The tribunal adjourns this matter until 29 January 2010 at which time the Tribunal will take into consideration a report from the mediator and consider if a change to the current administration arrangements is warranted.

1. The matters to be considered by the mediator on 21 January 2010 are the two matters raised in TJ’s correspondence of 1 December 2009, namely, the appointment of an administrator and the issues relating to compensation by the Public Trustee of Queensland to CM to restore his financial status to that which would enable home ownership. The Tribunal notes that TJ indicated that he is unable at this time to provide specific information about such compensation.

1. The Tribunal notes that should mediation prove to be unsuccessful in resolving the issues raised by both parties, they will need to communicate with each other on the matter of compensation. Such communication might occur prior to the mediation and, therefore, would be an issue raised at the mediation conference. If there is no resolution to this matter during mediation, parties will need to present evidence to the Tribunal on 29 January 2010 to substantiate their respective cases. If no agreement is reached concerning the management of CM’s finances, the Tribunal will consider submissions concerning the current appointments.