DCX v Public Guardian - [2017] NSWCATAD 377

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DCX v Public Guardian [2017] NSWCATAD 377
Hearing dates: 25 August 2017
Date of orders: 22 December 2017
Decision date: 22 December 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J S Currie, Senior Member
Decision:
The decision of the Public Guardian is affirmed.

Catchwords: ADMINISTRATIVE REVIEW - decision by Public Guardian as guardian appointed under a guardianship order – exercise of access function – decision to restrict the Applicant’s access to the subject person to regular telephone calls and to prohibit any other form of access, including physical access, subject to further review. Obligations of the decision maker under the Guardianship Act 1987- application of the principles in section 4- finding that the decision maker correctly applied the section 4 principles. Finding that the decision remained the correct and preferable decision, consistent with the section 4 principles, at the date of hearing.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act, 2013, No. 2 (NSW)
Guardianship Act 1987 (NSW)
Guardianship Regulation 2016 (NSW)
Cases Cited: DCA v Public Guardian [2017] NSWCATAD 364
Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77
P v NSW Trustee and Guardian [2015] NSWSC 579 at [56]
Protective Commissioner v D [2004] NSWCA 216 (2004) 60 NSWLR 513 at 543 [167]
WL v NSW Trustee and Guardian [2011]NSWADTAP 22 at [70]-[77]
ZDU v ZDV [2017] NSWCATAP 197
Category: Principal judgment
Parties: DCX (Applicant)
Public Guardian (Respondent)
Representation:
Counsel: M. Moore (Respondent)
Applicant: In Person
Solicitors: Crown Solicitor (Respondent)

File Number(s): 2017/00173231
Publication restriction: The publication of the name of the Applicant, the persons identified in the Reasons as MX, GX and VQ and the person subject to the decision by the Respondent is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

What are these proceedings about?

In these proceedings DCX seeks a review of a decision of the Public Guardian. The Public Guardian is the appointed guardian of DCX’s mother. By a decision made on 1 June 2017 the Public Guardian upheld the imposition of a restriction on DCX’s access to his mother, who I will refer to in these Reasons as BA, under which DCX could have such access only through regular telephone calls. Any other form of access, including physical access, was prohibited, subject to further review.

Background

On 22 December 2016 the Guardianship Division of the Tribunal made a continuing limited guardianship order for BA, the mother of DCX. Under that order, 3 of BA’s children (that is, 3 siblings of DCX) were appointed as her guardians for a short term, 5 weeks, with authority to make access decisions for her.
That guardianship order was renewed and varied on 27 January 2017, when the…

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 DCX v Public Guardian

Details

AGLC: DCX v Public Guardian [2017] NSWCATAD 377
Case: [2017] NSWCATAD 377
Decision Date: 22 December 2017

CaseChat Overview and Summary

In the matter of DCX v Public Guardian, the Applicant sought judicial review of a decision made by the Public Guardian, who was appointed as the guardian under a guardianship order. The dispute centred on the Public Guardian's exercise of the access function, whereby the guardian restricted the Applicant's access to the subject person to regular telephone calls and prohibited any other form of access, including physical access, subject to further review. The Applicant contested the decision on the basis that it was unreasonable and not consistent with the principles outlined in section 4 of the Guardianship Act 1987.

The primary legal issue before the court was whether the Public Guardian correctly applied the principles in section 4 of the Guardianship Act 1987 when making the decision to restrict the Applicant's access. The court also had to consider whether the decision remained the correct and preferable decision, consistent with the section 4 principles, at the date of hearing. The Applicant argued that the decision was unreasonable and not in the best interests of the subject person.

In affirming the decision of the Public Guardian, the court found that the guardian had correctly applied the principles in section 4 of the Guardianship Act 1987. The court found that the decision to restrict access was reasonable and consistent with the statutory framework. The court was satisfied that the Public Guardian had considered the subject person's views, wishes, feelings, and beliefs, and that the decision was in the best interests of the subject person. The court also found that the decision remained the correct and preferable decision at the date of hearing.

The decision of the Public Guardian is affirmed. The Applicant's application for judicial review is dismissed with costs.

Orders

Orders of the court

The decision of the Public Guardian is affirmed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DCX v Public Guardian [2017] NSWCATAD 377
Hearing dates:	25 August 2017
Date of orders:	22 December 2017
Decision date:	22 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	The decision of the Public Guardian is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW - decision by Public Guardian as guardian appointed under a guardianship order – exercise of access function – decision to restrict the Applicant’s access to the subject person to regular telephone calls and to prohibit any other form of access, including physical access, subject to further review. Obligations of the decision maker under the Guardianship Act 1987- application of the principles in section 4- finding that the decision maker correctly applied the section 4 principles. Finding that the decision remained the correct and preferable decision, consistent with the section 4 principles, at the date of hearing.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act, 2013, No. 2 (NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2016 (NSW)
Cases Cited:	DCA v Public Guardian [2017] NSWCATAD 364 Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 P v NSW Trustee and Guardian [2015] NSWSC 579 at [56] Protective Commissioner v D [2004] NSWCA 216 (2004) 60 NSWLR 513 at 543 [167] WL v NSW Trustee and Guardian [2011]NSWADTAP 22 at [70]-[77] ZDU v ZDV [2017] NSWCATAP 197
Category:	Principal judgment
Parties:	DCX (Applicant) Public Guardian (Respondent)
Representation:	Counsel: M. Moore (Respondent) Applicant: In Person Solicitors: Crown Solicitor (Respondent)
File Number(s):	2017/00173231
Publication restriction:	The publication of the name of the Applicant, the persons identified in the Reasons as MX, GX and VQ and the person subject to the decision by the Respondent is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.