FC
[2012] QCATA 120
•13 July 2012
| CITATION: | FC [2012] QCATA 120 |
| PARTIES: | FC |
| APPLICATION NUMBER: | APL065-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 13 July 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal or appeal is dismissed. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where FC has a permanent disability – where QCAT appoints the Adult Guardian – where an appeal is lodged against the appointment but which discloses no grounds – where the appeal is dismissed Queensland Civil and Administrative Tribunal Act2009, ss 28, 142 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Dearman v Dearman (1908) 7 CLR 549 Fox v Percy (2003) 214 CLR 118 Chambers v Jobling (1986) 7 NSWLR 1 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver
On 23 December 2011 the Tribunal made a decision appointing the Adult Guardian as guardian for all personal matters for FC. It also made an order appointing the Public Trustee as administrator for FC for all financial matters. This order confirmed an interim order made on 3 November 2011 after FC turned 18 on 10 November 2011.
Those orders were made after a hearing which came about after FC’s mother FG a filed an application in the Tribunal asking that she and a doctor be appointed guardians and administrators for FC.
After the application was filed a representative from the Department of Communities – Child Safety filed applications for the appointment of the Adult Guardian and Public Trustee as guardian and administrator for FC.
The Applicant, IM, although not a party to the proceeding, participated in the hearing of the application. In fact, in the reasons for the decision the Tribunal considered some of the proposals he put forward for FC’s welfare. On 3 February IM filed an application for leave to appeal or appeal the Tribunal’s decision of 23 December 2011. The grounds are very general and unhelpful in identifying error on the part of the Tribunal. Essentially all IM is contending is that the order is not in FC’s best interests, does not meet her educational needs, is too restrictive and is not what FC wants or needs.
Section 163 of the Guardianship and Administration Act 2000 provides that an “eligible person may appeal against a tribunal decision” as provided for in the QCAT Act. The section then sets out who is an “eligible person” for the purposes of the appeal. It includes the person whose capacity for a matter was under consideration; the applicant in the proceeding; the person proposed for the appointment; a person whose power as guardian or administrator has changed by the Tribunal’s decision and others who are not relevant here.
What seems clear from s 163 is that IM is not an “eligible person” and does not have standing to bring this appeal. On that ground alone leave to appeal should be refused. However as Ms Gardiner has taken to time to address the substantive issues in the appeal, and for the benefit of the parties we, in any event, given consideration to whether there is error in the Tribunal’s decision.
I have read the reasons for decision and considered the material before the Tribunal. In my view the Tribunal gave thorough consideration to all of the legal and factual issues put before it in coming to its decision, which decision on the material was open to it and is in the best interests of FC.
There is little more I can add other than to say I have had the benefit of reading Ms Gardiner’s reasons in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
FC has autism and an intellectual disability. The Adult Guardian was appointed as guardian for FC for decisions about all personal matters on 23 December 2011, reviewable in one year. IM (FC’s father) appeals this decision.
[10] The tribunal hearing (over two days; 25 November and 15 December 2011) was attended by FC’s parents and treating doctor and a range of professional representatives of services or organisations supporting FC. FC attended for part of the hearing.
[11] I have had the benefit of reading Mr Oliver’s reasons in draft. I agree with his reasons and his conclusion that IM is not an “eligible person” and does not have standing to bring this appeal.
[12] However to be of assistance to the parties in this matter and because FG (FC’s mother who filed that previous stay application) would have had standing had she filed the appeal, I will address the issues raised by this appeal application.
[13] Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Here, by reference to the application the appeal challenges findings of fact and therefore leave to appeal must be sought[1].
[1] Section 142 Queensland Civil and Administrative Tribunal Act 2009.
[14] The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
[15] IM’s appeal specifies the following grounds for his application:
The decision is not in the best interests of FC’s educational needs;
The decision was not what FC wants or needs and is the most restrictive outcome for FC;
False and misleading evidence was given by one departmental officer;
A department withheld documentation about FC’s future educational needs.
[16] IM had filed no submissions in support of these grounds. However, in FG’s earlier application to stay the effect of the tribunal order of 23 December 2011, submissions were filed to support the stay application. The grounds for the stay application were identical to the application for leave to appeal or appeal. These stay submissions say:
Serious harm was caused to FC by her attendance at the first day of the hearing. This attendance distressed FC because of false and misleading evidence being given by a departmental officer. The tribunal ignored parental and medical expertise in allowing FC’s attendance;
Despite evidence to the contrary from other persons, FC adores her parents and siblings and can be adequately cared for by her parents;
IM is not appealing the decision not to appoint Dr V as FC’s guardian;
IM is appealing because the Adult Guardian is not supportive of an extra year of specialised schooling for FC in Canberra (otherwise he would not be making the application).
[17] The reasons of the tribunal show that careful consideration was given by the tribunal to the application for a closure order seeking to exclude FC from the hearing. After reviewing the evidence, the tribunal concluded that the test to be applied (“serious harm or injustice”) was not met and that FC should not be excluded from the hearing.
[18] Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it[6] and an appellate tribunal may interfere, however, if the conclusion at first instance is ‘contrary to compelling inferences’ in the case.[7]
[6]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[7] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
[19] This appeal tribunal has considered the evidence before the original Tribunal and its ruling in relation to this application and has not been able to identify any error in the reasons published by the original tribunal concerning this application. The appeal on this ground must fail.
[20] The main reason for the appeal is stated in the submissions to be that IM believes the Adult Guardian is not supportive of an extra year of specialised schooling for FC in Canberra.
[21] IM has produced no evidence to support this belief. In response to the stay application, the Adult Guardian in submissions dated 14 March 2012 indicated that this matter is still under consideration and that no decision has been made. This matter is not commented on further in the Adult Guardian’s submissions in relation to the appeal proper dated 24 April 2012, the guardian being content to say that they will abide the decision of the Appeal Tribunal.
[22] Further material filed by IM concerning an incident which occurred in May 2012 and therefore after the decision under appeal, is not relevant to this appeal but does not touch on the issue of schooling in Canberra in any event.
[23] I am satisfied that IM is not an “eligible person” and does not have standing to bring this appeal. However, it is clear that IM is motivated by nothing but the best interests of his daughter. Even if he did have standing, he would not have demonstrated any grounds for leave or to appeal. There is no question of importance about which a further argument and a decision of the Appeal tribunal would have been of public advantage. Leave to appeal is refused.
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