CZX - [2020] NSWCATGD 29

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CZX [2020] NSWCATGD 29
Hearing dates: 28 September 2020
Date of orders: 28 September 2020
Decision date: 28 September 2020
Jurisdiction: Guardianship Division
Before: S G McCarthy, Senior Member (Legal)
Dr I L Beale, Senior Member (Professional)
E A Pickering, General Member (Community)
Decision:
1. A guardianship order is made for CZX.
2. SZX of [address removed for publication] and TZX of [Address removed for publication.] are appointed jointly as the guardians.
3. This is a continuing guardianship order for a period of one year from 28 September 2020.
4. This is a limited guardianship order giving the guardian(s) custody of CZX to the extent necessary to carry out the functions below.
FUNCTIONS: SZX and TZX
5. SZX and TZX have the following functions:
a) Services
To make decisions about services to be provided to CZX.
b) Restrictive Practices
To give or withhold consent as to whether the following restrictive practices should be used to influence CZX’s behaviour:
1. Chemical restraint
2. Environmental restraint
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring CZX to an understanding of the issues and to obtain and consider his views before making significant decisions.
b) Restrictive Practices Condition
The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence CZX’s behaviour:
(i) as a last resort to prevent CZX harming himself or others; and
(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon CZX, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.
Financial Management
The application for financial management is dismissed after hearing.

Catchwords:
GUARDIANSHIP – application for a guardianship order – standing – whether Life Without Barriers has standing to bring an application for a guardianship order - whether applicant has a “genuine concern” for the welfare of the subject person – standing established – whether a guardianship order should be made – need for decision making about services - need for decision making about the use of restrictive practices - chemical restraint – environmental restraint – private guardians jointly appointed – order made.
FINANCIAL MANAGEMENT – application for a financial management order – standing whether Life Without Barriers has standing to bring an application for a Financial management order – whether applicant has a “genuine concern” for the welfare of the subject person – subject person incapable of managing their own affairs – informal decision making arrangements meeting subject person’s needs – no need for an order – application dismissed.

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 17(1), 33A
Interpretation Act 1987 (NSW), s 21

Cases Cited:
C S and M Y…

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 CZX

Details

AGLC: CZX [2020] NSWCATGD 29
Case: [2020] NSWCATGD 29
Decision Date: 28 September 2020

CaseChat Overview and Summary

Life Without Barriers brought an application for a guardianship order and a financial management order for CZX, an individual who was unable to manage their own affairs. The court needed to determine whether Life Without Barriers had standing to bring the application for a guardianship order, if the applicant had a "genuine concern" for the welfare of CZX, and whether a guardianship order should be made. The court also needed to determine whether Life Without Barriers had standing to bring the application for a financial management order and whether CZX was incapable of managing their own affairs.

The court found that Life Without Barriers had standing to bring the application for a guardianship order as they had a genuine concern for the welfare of CZX. The court also found that a guardianship order should be made for CZX as there was a need for decision making about services and the use of restrictive practices. The court appointed SZX and TZX as joint private guardians for CZX and granted a continuing guardianship order for a period of one year from 28 September 2020. The court also granted a limited guardianship order giving the guardians custody of CZX to the extent necessary to make decisions about services and the use of restrictive practices such as chemical and environmental restraint. The court dismissed the application for a financial management order as CZX's needs were already being met by informal decision making arrangements.

This case highlights the importance of considering the welfare of individuals who are unable to manage their own affairs and the need for appropriate decision making arrangements to be put in place. The court's decision to appoint joint private guardians for CZX and grant a limited guardianship order demonstrates the court's willingness to consider alternative arrangements to formal guardianship where appropriate.

Orders

Orders of the court

1. A guardianship order is made for CZX.

2. SZX of [address removed for publication] and TZX of [Address removed for publication.] are appointed jointly as the guardians.

3. This is a continuing guardianship order for a period of one year from 28 September 2020.

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

FUNCTIONS: SZX and TZX

5. SZX and TZX have the following functions:

a) Services

To make decisions about services to be provided to CZX.

b) Restrictive Practices

To give or withhold consent as to whether the following restrictive practices should be used to influence CZX’s behaviour:

1. Chemical restraint

2. Environmental restraint

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

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

b) Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence CZX’s behaviour:

(i) as a last resort to prevent CZX harming himself or others; and

(ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon CZX, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.

Financial Management

The application for financial management is dismissed after hearing.

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:	CZX [2020] NSWCATGD 29
Hearing dates:	28 September 2020
Date of orders:	28 September 2020
Decision date:	28 September 2020
Jurisdiction:	Guardianship Division
Before:	S G McCarthy, Senior Member (Legal) Dr I L Beale, Senior Member (Professional) E A Pickering, General Member (Community)
Decision:	1. A guardianship order is made for CZX. 2. SZX of [address removed for publication] and TZX of [Address removed for publication.] are appointed jointly as the guardians. 3. This is a continuing guardianship order for a period of one year from 28 September 2020. 4. This is a limited guardianship order giving the guardian(s) custody of CZX to the extent necessary to carry out the functions below. FUNCTIONS: SZX and TZX 5. SZX and TZX have the following functions: a) Services To make decisions about services to be provided to CZX. b) Restrictive Practices To give or withhold consent as to whether the following restrictive practices should be used to influence CZX’s behaviour: 1. Chemical restraint 2. Environmental restraint CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring CZX to an understanding of the issues and to obtain and consider his views before making significant decisions. b) Restrictive Practices Condition The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence CZX’s behaviour: (i) as a last resort to prevent CZX harming himself or others; and (ii) in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon CZX, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended. Financial Management The application for financial management is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – standing – whether Life Without Barriers has standing to bring an application for a guardianship order - whether applicant has a “genuine concern” for the welfare of the subject person – standing established – whether a guardianship order should be made – need for decision making about services - need for decision making about the use of restrictive practices - chemical restraint – environmental restraint – private guardians jointly appointed – order made. FINANCIAL MANAGEMENT – application for a financial management order – standing whether Life Without Barriers has standing to bring an application for a Financial management order – whether applicant has a “genuine concern” for the welfare of the subject person – subject person incapable of managing their own affairs – informal decision making arrangements meeting subject person’s needs – no need for an order – application dismissed.
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2), 17(1), 33A Interpretation Act 1987 (NSW), s 21
Cases Cited:	C S and M Y…