EC - [2021] WASAT 74 | CaseChat AU

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   EC [2021] WASAT 74
MEMBER:   MS F CHILD, MEMBER
HEARD:   11 FEBRUARY 2021 AND 12 MARCH 2021
DELIVERED          :   19 MAY 2021
FILE NO/S:   GAA 4801 of 2020

EC
Represented Person
CAHS
Applicant

Catchwords:

Guardianship and Administration - Intellectual disability - Refusal of services - Pregnancy - Risk of domestic violence - No family support - Need for a guardian to consent to treatment and services and to act as next friend - No need for an administrator as less restrictive alternatives for management of estate

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 43, s 43(1)(b), s 45(2), s 64(1), s 64(1)(a), s 110ZD, Pt 5, Div 3

Result:

Guardian appointed
Application for the appointment of an administrator dismissed

Category: B

Representation:

Counsel:

Represented Person	:	N/A
Applicant	:	N/A

Solicitors:

Represented Person	:	N/A
Applicant	:	State Solicitor's Office

Case(s) referred to in decision(s):

FS [2007] WASAT 202
FY [2019] WASAT 118
NCK [2004] WAGAB 6
PR [2021] WASAT 32

REASONS FOR DECISION OF THE TRIBUNAL:

The Child and Adolescent Health Service (CAHS) applied to the Tribunal for the orders to be made under the Guardianship and Administration Act 1990 (WA) (GA Act) for the appointment of a guardian for and an administrator of the estate of EC.
The application was heard on 11 February and 12 March 2021 and the decision reserved.
Orders were issued on 30 March 2021. These are the reasons for the decisions made.
In decisions of the Tribunal published under the GA Act all information which might identify the person concerned is removed.

Background

EC has been a patient of the CAHS since coming to Australia as a child refugee some years ago. EC is now 19 years old and due to be discharged from CAHS because of her age. She is the sole parent of her daughter, M who is nearly five years old.
EC experienced severe trauma both before and after arriving in Australia. She is estranged from her family of origin and has had little contact with them having left home with the assistance of the Department of Communities Child Protection (DCP) and other services in 2017.
EC lives independently with her daughter who regularly attends childcare as EC is in full time education in intensive English. EC describes herself as happy and progressing well at school.
EC is due to have a baby in July 2021. She has been subject of two known incidents of domestic violence from the father of the baby.
EC requires the assistance of an interpreter in most interactions with English speakers.

Principles to be observed

In all proceedings with the Tribunal brought under the GA Act the Tribunal must observe principles set out in s 4 of the GA Act which provide that the primary concern of the Tribunal is the best interests of EC.
The principles also provide that EC is presumed to be capable…

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 EC

Details

AGLC: EC [2021] WASAT 74
Case: [2021] WASAT 74
Decision Date

CaseChat Overview and Summary

This case involved an application to the State Administrative Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act) by the Child and Adolescent Health Service (CAHS) for the appointment of a guardian and an administrator for the estate of EC, a 19-year-old woman with an intellectual disability. EC is a sole parent of a young child and is pregnant with her second child. The application was heard over two days in February and March 2021. The Tribunal's decision was handed down on 19 May 2021. The key issues the Tribunal had to decide were whether EC was a person for whom a guardianship and administration order may be made and if so, what order should be made. The Tribunal found that EC has a mild intellectual disability which is a recognised category of mental disability in the GA Act. It was also found that EC is incapable of looking after her own health and safety, is unable to make reasonable judgments in respect of matters relating to her person and is in need of oversight, care or control in the interests of her own health and safety and for the protection of others. It was found that she is in need of a guardian. However, it was not found that EC was unable by reason of her intellectual disability to make reasonable judgments about part of her estate, that part being more complex decisions or matters which are outside structured routine matters. The application for the appointment of an administrator was dismissed. A limited guardianship order was made appointing the Public Advocate as EC's guardian with functions including to make treatment decisions for EC, to determine the services to which she should have access, and to act as next friend to bring or defend legal proceedings on her behalf. The order was made reviewable in two years.

Orders