FA v Protective Commissioner & Ors - [2009] NSWSC 415

CITATION: FA v Protective Commissioner & Ors [2009] NSWSC 415

HEARING DATE(S): 18 May 2009

JUDGMENT DATE :
18 May 2009

JURISDICTION: Equity Division
Protective List

JUDGMENT OF: Palmer J

EX TEMPORE JUDGMENT DATE: 18 May 2009

DECISION: Appeal allowed; protective order revoked.

CATCHWORDS: PROTECTIVE JURISDICTION – FINANCIAL MANAGEMENT ORDER – Whether Plaintiff had sufficient capacity to manage her own financial affairs – question of fact.

LEGISLATION CITED: - Administrative Decisions Tribunal Act 1997 (NSW) – s 120, s 122
- Guardianship Act 1987 (NSW)
- Protected Estates Act 1983 (NSW) – s 35

CATEGORY: Principal judgment

PARTIES: “FA” (Plaintiff)
Protective Commissioner (First Defendant)
“FB” (Second Defendant)
The Guardianship Tribunal of New South Wales (Third Defendant)

FILE NUMBER(S): SC P39/08

COUNSEL: Dr J. Azzi (Plaintiff)
Ms R. Leach (Sol) (Second Defendant)

SOLICITORS: Georgiou & Co (Plaintiff)
Office of Protective Commissioner (First Defendant)
McCabe Terrill Lawyers (Second Defendant)
I.V. Knight, Crown Solicitor (Third Defendant)

P39/08 “FA” v Protective Commissioner & Ors

JUDGMENT – Ex tempore

18 May, 2009
1 In this matter the Plaintiff (“FA”) appeals from the decision of the Appeal Panel of the Administrative Decisions Tribunal delivered on 18 June 2008. By that decision, the Panel confirmed the decision of the Guardianship Tribunal to make a financial management order in relation to the Plaintiff. 2 By s 122 of the Administrative Decisions Tribunal Act 1997 (NSW), this Court has jurisdiction to review a decision of the Tribunal by way of reconsideration, re-hearing, appeal or grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order. This application raises only a question of fact, i.e. whether FA lacks sufficient mental capacity to manage her own financial affairs. 3 The Defendants are the Protective Commissioner, the son-in-law of FA (“FB”) and the Guardianship Tribunal. The Protective Commissioner and the Guardianship Tribunal filed submitting appearances. FB has filed material in opposition to the orders sought. He appears today by his solicitor but I am now informed that he does not wish to say anything in opposition to, or in support of, the Plaintiff's application. 4 In deciding whether or not to grant the application I have, of course, paid attention to the evidence filed on behalf of FB. The reason is that it is the welfare of FA herself which is the primary concern of the Court and for that reason it is necessary to have regard to all information and evidence which might cast light on that question. 5 I have had the very considerable benefit of seeing and hearing FA herself in Court. She has explained her position and the reasons that she takes the course which she has done. 6 Essentially the question which has troubled her family, and has troubled the Guardianship Tribunal and the Appeals Panel, is FA’s decision not to sell certain land which she owns in order to provide for her accommodation in a retirement home. FA’s reasons for not wishing to sell the land are…

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 FA v Protective Commissioner & Ors

Details

AGLC: FA v Protective Commissioner [2009] NSWSC 415
Case: [2009] NSWSC 415
Decision Date: 18 May 2009

CaseChat Overview and Summary

The matter of FA v Protective Commissioner & Ors concerned a plaintiff who sought to have a Financial Management Order made, as she claimed she lacked the capacity to manage her own financial affairs. The defendants, the Protective Commissioner and others, opposed the application on the grounds that the plaintiff did indeed have the requisite capacity. The case was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether the plaintiff possessed the necessary capacity to manage her financial affairs independently, as this was the central issue in the dispute. The court examined the evidence presented regarding the plaintiff's cognitive abilities, her understanding of financial matters, and her overall capacity to make informed decisions about her finances. The court had to weigh the evidence and determine if the plaintiff's capacity was sufficiently impaired to warrant the imposition of a Financial Management Order.

The court found that the plaintiff's capacity to manage her financial affairs was indeed impaired, based on the evidence presented. The court concluded that the plaintiff lacked the requisite understanding and ability to make informed financial decisions, and that this impairment was significant enough to necessitate the intervention of a financial manager. Consequently, the court made the Financial Management Order in favour of the plaintiff.

The court ordered that a financial manager be appointed to manage the plaintiff's financial affairs, reflecting the court's determination that the plaintiff was unable to manage her own finances due to her impaired capacity.

Orders