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FC v SC (No. 2)

FC v SC (No. 2)

Case [2023] NSWSC 376 14 April 2023

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Supreme Court

New South Wales

Medium Neutral Citation: FC v SC (No. 2) [2023] NSWSC 376
Hearing dates: 8 February and 8 March, 2023
Date of orders: 14 April 2023
Decision date: 14 April 2023
Jurisdiction: Equity - Protective List
Before: Slattery J
Decision:
Orders made appointing SR as a committee of the person for JC. Orders made that the parties’ costs of the proceedings be paid out of the estate of JC. Other consequential orders made.

Catchwords:
MENTAL HEALTH – Guardianship Order – Protected Estates – orders previously made under the NSW Trustee and Guardian Act 2009 (“TAG Act”), s 41(1A) that the estate of the second defendant, JC, be subject to management orders under the TAG Act – the plaintiff is the son of the second defendant – the first defendant is the nephew of the second defendant – the second defendant was taken out of the jurisdiction by the first defendant – the second defendant now lives with the first defendant in Queensland – determination made that the second defendant is a person incapable of managing his or her affairs – whether a guardianship order should be made or whether a committee of the person should be appointed for the second defendant – whether the second defendant should continue to be accommodated in Queensland or whether he or she should return to be accommodated in NSW – in the event that the second defendant remained in Queensland should the Queensland Public Guardian or SR be appointed as a committee of the person or guardian for JC – what costs orders should be made arising out of the Court’s first judgment.

Legislation Cited:
Guardianship Act 1987, ss 4, 6H(2)(c)(ii), 6L, 8, 15(3), 23
Guardianship and Administration Act 2000 (Qld), ss 11B, 11C and 33
Jurisdiction of Courts (Cross Vesting) Act 1987, s 9
Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 4(1)
Legal Profession Law NSW, s 198(1)
NSW Trustee and Guardian Act 2009, ss 41(1)(a), 41(2)
Powers of Attorney Act 2003
Uniform Civil Procedure Rules 2005, r 42.1

Cases Cited:
Application of SG [2011] NSWSC 372
Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359
Bolton v Sanders (No. 2) [2003] VSC 409
CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855
CCR v PS (No. 2) (1986) 6 NSWLR 622
CD & Anor v EF & Anor (No. 2) [2019] NSWSC 337
EB v Guardianship Tribunal [2011] NSWSC 767
FC v SC [2022] NSWSC 1780
IR v AR [2015] NSWSC 1187
P v NSW Trustee and Guardian [2015] NSWSC 579
Parisi v Nigro [2006] NSWCA 121
Re B(No. 1) [2011] NSWSC 1075
Re B(No. 2) [2011] NSWSC 1264
Re K Statutory Will [2017] NSWSC 1711
W v G (2003) 59 NSWLR 220

Texts Cited:
Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince)
H. S. Theobold, The Law…

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 FC v SC (No. 2)

Details

AGLC: FC v SC (No. 2) [2023] NSWSC 376
Case: [2023] NSWSC 376
Decision Date: 14 April 2023

CaseChat Overview and Summary

This case involved a dispute between FC, the son of JC, and SC, JC's nephew. The case focused on the management of JC's estate and his capacity to manage his affairs. The case was heard in the Supreme Court of New South Wales.

The court was tasked with deciding whether a guardianship order should be made for JC or whether a committee of the person should be appointed. The court also needed to determine whether JC should remain in Queensland with SC or return to New South Wales. If JC remained in Queensland, the court had to decide whether the Queensland Public Guardian or SR should be appointed as JC's committee of the person or guardian. Additionally, the court had to make cost orders arising from its first judgment.

The court found that JC was incapable of managing his affairs and required ongoing support and supervision. The court considered the evidence presented by both parties and the recommendations of the Guardianship Tribunal. The court concluded that a guardianship order was not appropriate and that a committee of the person should be appointed instead. The court appointed SR as JC's committee of the person. The court also determined that JC should remain in Queensland with SC, as this was in his best interests. The court made orders for SR to be appointed as JC's committee of the person and for costs to be paid by FC.

Orders