DGD - [2014] NSWCATGD 48

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DGD [2014] NSWCATGD 48
Hearing dates: 13 November 2014
Date of orders: 13 November 2014
Decision date: 13 November 2014
Jurisdiction: Guardianship Division
Before: Simpson J, Senior Member (Legal)
West C, Senior Member (Professional)
McCalman M, General Member (Community)
Decision:
Guardianship order made for period of six months – Public Guardian appointed with functions of accommodation, health care, services and access.
Financial management order made – NSW Trustee and Guardian appointed – order reviewable within six months.
Catchwords:
GUARDIANSHIP – application for guardianship order – conflict about where person should reside - allegations of abuse by carer – inconsistent evidence – Tribunal unable to make a finding about decision making and care – independent decision maker necessary.
FINANCIAL MANAGEMENT – application for financial management order – relationship between guardianship decisions and financial management – independent manager required – recommendations made to financial manager.
Legislation Cited: Guardianship Act 1987 (NSW)
Cases Cited: Holt v Protective Commissioner (1993) 31 NSWLR 227
H v H, Supreme Court Protective Division, unreported, Hodgson J, 31 March 1994
LA v Protective Commissioner [2004] NSWADTAP 39 M v M [2013] NSWSC 1495
Re R [2000] NSWSC 886
Re L [2000] NSWSC 721
SH v Protective Commissioner [2006] ADTAP 22
Category: Principal judgment
Parties: Mrs DGD (subject person)
Ms UBI (applicant)
Mr CCX (applicant)
The Public Guardian
Representation: Separate Representation

File Number(s): 57477
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal appointed the Public Guardian to make decisions for Mrs DGD about her accommodation, access to her, health and services issues. The Tribunal appointed the NSW Trustee and Guardian as Mrs DGD’s financial manager. Both these orders will be reviewed in six months.

Background

Mrs DGD is a 55-year-old woman with dementia and dysphasia who is currently staying at the home of her daughter Ms UBI in Regional NSW. Mrs DGD also has three other adult children, Ms KDK, Mr MEM and Mr TFI. Her first husband died some years ago and in 2009 she married again to Mr CCX.
Soon after her second marriage, Mrs DGD was involved in establishing a family cafe business in which her sons worked. Disagreements developed and Mrs DGD appears to have had very limited contact with her children for a number of years until September 2014.
In 2014, Mrs DGD and Mr CCX purchased a house in the Northern Territory with a view to moving there from Sydney. In early September, Mrs DGD and Mr CCX drove back to New South Wales for a visit and Mr CCX left Mrs DGD to stay for a short period with her daughter Ms UBI.
Conflict quickly followed about whether Mr CCX should be allowed to take Mrs DGD back to the Northern Territory.…

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 DGD

Details

AGLC: DGD [2014] NSWCATGD 48
Case: [2014] NSWCATGD 48
Decision Date: 13 November 2014

CaseChat Overview and Summary

The matter of DGD involved an application for a guardianship order and a financial management order. The primary dispute centred around the appropriate living arrangements for an individual, DGD, and the alleged abuse by a carer. The case was heard in the relevant court, where the parties presented their arguments. The legal issues that the court had to resolve included determining the appropriate guardianship arrangements for DGD and whether an independent decision-maker was necessary to address the concerns about care and decision-making. Additionally, the court needed to establish if a financial management order was required and, if so, what the terms of that order should be.

The court examined the evidence presented by both parties, which included conflicting accounts of the situation. The inconsistencies in the evidence made it difficult for the Tribunal to reach a definitive conclusion about the decision-making and care needs of DGD. The court acknowledged that the concerns about potential abuse by the carer warranted the appointment of an independent decision-maker to ensure DGD's safety and well-being. Furthermore, the court recognised the need for an independent financial manager to manage DGD's finances, given the relationship between the guardianship decisions and financial management.

The court concluded that a guardianship order was necessary for a period of six months, with the Public Guardian appointed to oversee accommodation, health care, services, and access. The court also found that a financial management order was required, appointing the NSW Trustee and Guardian as the financial manager. The court made specific recommendations to the financial manager to ensure that DGD's financial interests were properly managed. The orders were made reviewable within six months, allowing for a reassessment of the situation and any necessary adjustments to the arrangements.

The final orders of the court included a guardianship order for a period of six months, with the Public Guardian appointed to oversee various aspects of DGD's care and well-being. The court also made a financial management order, appointing the NSW Trustee and Guardian as the financial manager, with specific recommendations provided to ensure the proper management of DGD's finances. Both orders were made reviewable within six months to allow for any necessary adjustments to the arrangements.

Orders

Orders of the court

Guardianship order made for period of six months – Public Guardian appointed with functions of accommodation, health care, services and access.

Financial management order made – NSW Trustee and Guardian appointed – order reviewable within six months.

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:	DGD [2014] NSWCATGD 48
Hearing dates:	13 November 2014
Date of orders:	13 November 2014
Decision date:	13 November 2014
Jurisdiction:	Guardianship Division
Before:	Simpson J, Senior Member (Legal) West C, Senior Member (Professional) McCalman M, General Member (Community)
Decision:	Guardianship order made for period of six months – Public Guardian appointed with functions of accommodation, health care, services and access. Financial management order made – NSW Trustee and Guardian appointed – order reviewable within six months.
Catchwords:	GUARDIANSHIP – application for guardianship order – conflict about where person should reside - allegations of abuse by carer – inconsistent evidence – Tribunal unable to make a finding about decision making and care – independent decision maker necessary. FINANCIAL MANAGEMENT – application for financial management order – relationship between guardianship decisions and financial management – independent manager required – recommendations made to financial manager.
Legislation Cited:	Guardianship Act 1987 (NSW)
Cases Cited:	Holt v Protective Commissioner (1993) 31 NSWLR 227 H v H, Supreme Court Protective Division, unreported, Hodgson J, 31 March 1994 LA v Protective Commissioner [2004] NSWADTAP 39 M v M [2013] NSWSC 1495 Re R [2000] NSWSC 886 Re L [2000] NSWSC 721 SH v Protective Commissioner [2006] ADTAP 22
Category:	Principal judgment
Parties:	Mrs DGD (subject person) Ms UBI (applicant) Mr CCX (applicant) The Public Guardian
Representation:	Separate Representation
File Number(s):	57477
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act (NSW)).