FC v SC (No. 2)

[2023] NSWSC 376

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 Relating to Lunacy (1924, Stevens & Sons Ltd)

Category:

Principal judgment

Parties:

Plaintiff: FC
First Defendant: SC
Second Defendant: CJ
Third Defendant: NSW Trustee and Guardian

Representation:

Counsel:
Plaintiff: Mr A. Crossland; Ms B. Flaherty
First Defendant: Mr A. Galapo

Solicitors:
Plaintiff: Jeffrey Barrett, Attwood Marshall Lawyers Pty Ltd
Second Defendant: in person
Third Defendant: Ms R. Stormont, NSW Trustee and Guardian

File Number(s):

2021/00074726

Publication restriction:

No

Judgment

1. This is the Court’s second judgment in these proceedings. In the Court’s first judgment in December 2022, the Court made orders pursuant to the NSW Trustee and Guardian Act 2009 (“the TAG Act”), s 41(1)(a) that the estate of the second defendant, JC, be subject to management under the TAG Act: FC v SC [2022] NSWSC 1780. This judgment should be read with the Court’s first judgment. Events, matters and persons are referred to in both judgments in the same way.

2. This judgment deals with various questions which were left unresolved by the first judgment. These were the following: what declarations and orders should be made in relation to previous guardianship documents; who should be appointed as a guardian or committee of the person for JC; the remuneration of the financial manager; what payment of compensation to SC should occur in relation to JC’s accommodation with SC, and JC’s care and living expenses; what access by FC and his family members to JC is appropriate; and what order for costs should be made.

3. The parties are represented as before. Mr A. Crossland and Ms B. Flaherty appear as counsel for the plaintiff, FC, instructed by Attwood Marshall Lawyers Pty Ltd. Mr A. Galapo appears as counsel on direct instructions for SC. Ms R. Stormont appears on behalf of the NSW Trustee and Guardian.

4. Before dealing with the outstanding matters, a short account should be given of events since the Court’s first judgment.

Matters Occurring Since December 2022

5. Since the Court’s first judgment, JC has continued to reside with SC at SC’s home in Cairns. JC appears to be content with this arrangement and to want it to continue.

6. In the first judgment the Court indicated a preference to appoint Ability One in the role of financial manager of JC, supervised by the TAG: first judgment at [293] and [294]. But work needed to be done to finalise appropriate orders to give effect to the appointment of Ability One as financial manager under the statutory supervision of the NSW TAG. The Court made orders to give effect to that appointment on 15 February 2023.

7. The orders made on 15 February 2023 included orders for Ability One to assess the reasonable value of the past accommodation, care and living expenses provided by SC to JC, together with the ongoing monthly measure of such expenses, with a view to reimbursing SC in respect of these outgoings incurred. But in submissions and at the directions hearings since December 2022, SC submitted that he does not wish to be reimbursed for these expenses, as he regards the incurring of those expenses as part of his moral obligation to care for JC. SC does not press a claim for reimbursement of such expenses. No further consideration needs to be given to that issue.

8. The position of the NSW TAG at the directions hearing on 8 March 2023 was clear: it did not propose to contend that JC be returned to NSW. The first judgment emphasised that JC seemed content in his present accommodation with SC. The issue for the Court narrowed as to whether SR or the Queensland Public Guardian should be appointed to act as the committee of the person for JC. That issue is considered below.

9. The parties filed written submissions by 31 January 2023 as directed in the Court’s orders of 15 December 2022. The Court held directions hearings on 8 February 2023 and 8 February and 8 March 2023, after which the Court reserved judgment on all remaining issues.

10. At the directions hearing on 8 February 2023 the Court heard evidence from SR, who SC proposes for appointment as the guardian for JC if the existing guardianship documents are set aside. The Court has decided to set aside the existing guardianship documents for the reasons expressed in the first judgement. Based on SR’s evidence the Court makes observations about SR’s suitability for the role of guardian or committee of the person below.

11. In the first judgment the Court contemplated (at [312]) that the NSW Public Guardian might be appointed as JC’s guardian and that the Court would expect that the Public Guardian would make its own assessment of JC’s accommodation needs and may well decide that staying with SC in Cairns is the best for JC. The Court further contemplated that unless a mutually agreed acceptable family member could be found, the Court might have to appoint the Public Guardian as there appeared to be no realistic alternative: first judgment at [313]. So, the Court decided to give the parties an opportunity to see if another family member could be found. That resulted in evidence being adduced from SR.

12. The Court contemplated the possibility that if the Public Guardian were appointed the Public Guardian might decide about JC’ accommodation. If that decision was for JC to remain accommodated in Cairns with SC then a decision would have to be made as to whether it would be another family member or the Public Guardian of Queensland. On the other hand, if the decision by the Public Guardian was to re-accommodate JC in New South Wales then the decision would be between the choice of a guardian or a committee of the person or the Public Guardian in this State.

13. In the event of the directions hearing on 8 February 2023 and subsequently on 8 March 2023 the Public Guardian made clear it saw JC well settled in Cairns and that the Court should decide between the Public Guardian in Queensland and a family member in Queensland. The Court accepts that JC is well settled in his present accommodation in Cairns and that it would be too disruptive to move him again now against his clearly expressed views. That is the course which has been taken in these reasons.

14. Finally, the Court remained unsatisfied as to the reasonableness of the legal costs charged by Falzon Legal Pty Limited to JC on the state of the evidence. Therefore, on 15 February 2023 the Court ordered that Ability One apply under Legal Profession Law NSW, s 198(1) for an assessment of the legal costs paid from the assets of JC to Falzon Legal.

15. After these events the principal remaining issues relate to costs and JC’s guardianship.

Costs

16. The parties contest the appropriate costs orders to be made in these proceedings. FC seeks an order that SC pay his costs of the proceedings on the indemnity basis and that there be no order made providing for SC’s costs. In contrast, SC seeks orders that his costs of the proceedings be paid out of JC’s estate after the Greystanes property is sold. SC also submits that FC should pay its own legal costs in the proceedings. The parties’ respective positions in relation to costs emphasise the continuing hostility between FC and SC and reinforce the Court’s decision to appoint neither of them as a committee of the person or guardian of JC. The respective submissions on costs need only be summarised at a general level.

17. The applicable legal principles may be shortly stated. In matters in the Court’s protective jurisdiction the Court’s discretion as to costs may be exercised by reference to what in all the circumstances seems proper rather than to apply the rule required by Uniform Civil Procedure Rules 2005, r 42.1, that costs follow the event: CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [130]. Costs in the protective jurisdiction have come to be regarded as exceptions to the general principle that costs follow the event because the proceedings are taken in the interest of those thought to be incapable of protecting themselves and their property and that those who would otherwise be concerned to act to protect the mentally ill or the mentally infirm might be deterred from acting if they were to expose themselves to the risk of costs if their application, though reasonably made, were unsuccessful: CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640E-F per Powell J.

18. Relevant considerations in determining a proper costs order in the protective jurisdiction include the following matters. A party conducting proceedings in an unnecessarily adversarial matter may be required to bear the costs of the whole or part of the proceedings: CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [131]. The making of an order for costs should not impact on the incapable person’s security or wealth: Bolton v Sanders (No. 2) [2003] VSC 409 at [2]. The respective resources of the parties to the proceedings are relevant to the exercise of the discretion: P v NSW Trustee and Guardian [2015] NSWSC 579 at [369]. The Court may refrain from imposing an obligation to pay costs, if it could adversely impact on the relationships of or care of the person in need of protection: Re K Statutory Will [2017] NSWSC 1711 at [17].

19. FC submits the following in relation to costs. This paragraph records FC’s submissions in outline only. SC contests these submissions. SC is said to have been motivated by animus towards FC rather than concern for JC’s welfare. SC made baseless allegations against FC and his son on flimsy evidence. Little of the evidence from FC assisted the Court, and was intended to obscure rather than illuminate the important issues. Based on the findings in the first judgment, it is said that FC’s controlling behaviour over JC and SC’s removal of JC from the jurisdiction intensified the dispute about JC’s welfare and made it more factually and legally complex, and more expensive. SC acted in disregard of the reasonable resolution of the dispute by removing JC from the jurisdiction. FC orchestrated the making of the 2020 EPOA and EGA, which were tactical instruments rather than necessary instruments made in JC’s best interests. SC has misused JC’s financial resources or mixed his own financial affairs with those of JC and has indirectly received personal benefits from JC’s estate. Moreover, SC submits it is appropriate for SC to be ordered to pay FC’s and JC’s costs on the indemnity basis because this case contains special or unusual features demonstrating SC’s delinquency, including the making of unsupportable allegations of misconduct on FC’s part: Baillieu Knight Frank (NSW) Pty Ltd v Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359 at [362] and Parisi v Nigro [2006] NSWCA 121 at [16].

20. In contrast, SC submits that the Greystanes property should be sold and SC’s legal fees paid from the proceeds of sale and that FC pay his own legal costs. Such orders are submitted by SC to be just and appropriate for the following reasons. SC has acted altruistically for JC. These proceedings are about JC and SC has been dragged into them by FC. JC is unrepresented and FC and SC are both arguing for their perspectives on JC’s best interests and financial and personal independence. But FC has not argued in JC’s best interests but in an unnecessarily adversarial fashion. SC had no choice but to defend the proceedings. SC has already committed substantial financial resources at his own expense in defending the litigation and looking after JC; SC has, at his own expense, accommodated JC in a manner with which JC is clearly satisfied. SC is assisting JC at the request of JC’s brother. Should SC be ordered to pay costs he would have to sell the home in which JC is presently accommodated. JC’s estate is valued at over $3.5 million and he has the means to pay the legal costs incurred. JC has expressed the view that as these proceedings are about him he should pay the legal costs of the proceedings.

21. The Court has reached the view that FC’s costs and SC’s costs should both be paid out of JC’s estate. Many considerations point to this conclusion.

22. First, the central consideration in these proceedings is JC’s future welfare and his best interests. If the Court makes either of the costs orders proposed by FC or SC then this dispute will continue with mutual resentment and in contested cost assessments. This will promote mutual recrimination and intrafamily aggression. There is more than a slight risk that any costs order that the Court made against FC or SC would itself become a weapon for continued warfare between them, which in turn would make each of them enjoying a more balanced relationship with JC the more difficult. In CD & Anor v EF & Anor (No. 2) [2019] NSWSC 337 at [29] – [30] the Court was faced with a similar situation: a trade-off between making costs orders between two family members contesting the structure for an elderly person in need of protection. The making of costs orders between FC and SC is likely to continue rather than quell the current controversy. It is best for JC that FC and SC put the costs issues, along with the other issues resolved by the Court, behind them as far as possible.

23. To achieve this outcome two principal costs options present themselves. The first is that each party bear his own costs. The other is that each parties’ costs be paid out of JC’s estate.

24. Here, the better option is that each party’s costs be paid out of JC’s estate. Ordering each party to bear his own costs will leave a lingering sense of resentment in FC and SC that each will have to bear a financial burden for doing no more than what in his eyes was pursuing a contest in JC’s best interests. That in turn is likely to lead each of FC and SC to blame the other for his financial burden and to impair JC’s quality of life. There is also the risk that the increased financial burden thereby placed on SC may destabilise JC’s current accommodation arrangements, although this is far from a clearly proven risk.

25. Here JC’s estate is sufficiently substantial that after the sale of the Greystanes properties that FC and SC’s legal fees can all be satisfied. SC and FC will have to wait for the Greystanes property to be sold to recoup their legal costs.

26. Ability One will represent the interests of JC in dealing with the various claims for costs on both sides. If Ability One is not satisfied that the claims for costs made on each side as a result of these orders are reasonable, then Ability One can require that a costs assessment be undertaken in JC’s best interests under Legal Profession Law NSW, s 198(1). This has already occurred in respect to Mr Falzon’s fees.

27. SC submitted that the Greystanes property should be sold to provide funds to meet FC and SC’s claims for costs. But it is not necessary to direct Ability One in relation to the sale of the Greystanes property. Ability One has already indicated that it is likely to sell the Greystanes property. JC himself wants the Greystanes property sold. There is no obvious source of funds other than the Greystanes property to meet the liabilities of JC’s estate. The consensus towards selling the Greystanes property is so strong that it is not necessary for the Court to make formal directions for its sale.

Appointing a Guardian or Committee of the Person for JC

28. The applicable legal principles may be shortly stated. The Court’s inherent protective jurisdiction in relation to persons incapable of self-management has been well described in several recent authorities. The Court refers to Lindsay J’s judgment in IR v AR [2015] NSWSC 1187 at [101] – [106]. The Court’s inherent jurisdiction is derived from 19^th century English law and practice upon its reception into this State through the Third Charter of Justice in 1823. The practice and procedure of the English Lord Chancellor at the time was that the Court could appoint a “committee of the person” to persons incapable of self-management. That office was then perceived to be the equivalent of what we would now describe as a tutor. And the role was acquainted with that of “curator” under Roman law: Blackstone, Commentaries on the Laws of England (9^th ed, 1783, Printed for Strahan, Cadell, & Prince). The “committee of the person” was also the historical title of the office of the guardian appointed by the Lord Chancellor in the exercise of the Equity Court’s inherent protective jurisdiction: H. S. Theobold, The Law Relating to Lunacy (1924, Stevens & Sons Ltd); and see the discussion of the office by Lindsay J in IR v AR [2015] NSWSC 1187 at [55] – [57].

29. The Court’s inherent jurisdiction is referred to and confirmed under the Guardianship Act 1987. Importantly, the Guardianship Act does not limit the Court’s inherent jurisdiction: Guardianship Act, s 8. That jurisdiction is referred to in the Guardianship Act as existing alongside the statutory powers of the Guardianship Act, s 23: IR v AR [2015] NSWSC 1187 at [117] – [118].

30. Guardianship Act, s 4 sets out the general principles which must be followed in the exercise of functions under the Guardianship Act:

“It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a)   the welfare and interests of such persons should be given paramount consideration,

(b)   the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)   such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)   the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)   the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)   such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)   such persons should be protected from neglect, abuse and exploitation,

(h)   the community should be encouraged to apply and promote these principles.”

31. All of these principles influence the Court’s decision-making about JC’s guardianship.

32. Both the Guardianship Act and the policy of general law is that when considering an appointment of someone to act as committee of the person, the appointment of the Public Guardian is an appointment of last resort. This is firstly provided for in Guardianship Act, s 15(3), as follows:

“15(3)   A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.”

33. This aspect of the legislation reflects the policy at general law: “it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible”, and “just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not be appointed”: W v G (2003) 59 NSWLR 220 at [25] – [26]; see also Application of SG [2011] NSWSC 372 at [33]; EB v Guardianship Tribunal [2011] NSWSC 767 at [293]; and Re B (No. 1) [2011] NSWSC 1075.

34. The principle was articulated in different terms in Re B (No. 2) [2011] NSWSC 1264 at [3] per White J:

“As there appears the question on the present application is whether the plaintiff can properly be appointed as his mother's guardian. If he can properly be so appointed, then the Public Guardian should not continue to exercise the functions of guardian. This is because of the policy reflected in s 15(3) of the Guardianship Act 1987 that, where possible, it is preferable to appoint as a guardian a family member or other person having a close personal relationship with the person in need of guardianship (W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [26]).”

35. Here, FC submitted that if JC was to remain in Queensland, then the Queensland Public Guardian should be appointed as the committee of the person to JC, in preference to the family member SR, who was advanced by SC in the alternative. SC submitted that SR was suitable for appointment as JC’s committee of the person. Another family member was also advanced but SR was the realistic candidate for appointment.

36. In the Court’s view SR is a suitable person to be appointed as a guardian or committee of the person for JC. SR has never been appointed as a guardian before or as a committee of the person but has been in many caring roles both as a geriatric nurse and for her own mother during her mother’s treatment for cancer. She is a family member. She is suitable and her appointment gives effect to the law’s preference for the appointment of a family member over a public authority.

37. For the last five years SR has been working as a geriatric nurse in a rural aged care facility, where she manages 14 elderly residents some of whom have dementia and are unable to look after themselves.

38. SR gave impressive evidence. SR has known JC for nearly 2 years and is now part of his family. Her daughter is the fiancée of SC’s son, JC’s grandson. The evidence in February indicated that SR’s daughter and JC’s grandson would be having their first child together in March of this year. SR has practised as a registered nurse in Queensland for 25 years, specialising in geriatric nursing.

39. SR clearly has a good relationship with JC. SR mixes regularly with JC at family occasions. SR described her relationship with JC in endearing terms, “I have a lot of respect for JC. He is a very intelligent man that can really hold a good conversation, which I enjoy thoroughly when I get to converse with him.” She said spontaneously of JC, “I just think [he] is such a sweet man and he’s had a long, probably some hard life, and we just get on well”; and “he is a lovely friend”. The Court assesses that SR genuinely feels strong sentiments of affection for JC.

40. SC is normally at the same family gatherings where SR sees JC. But SR has not had any interaction with SC about the present dispute between SC and FC. The Court accepts her evidence that she has not attempted to involve herself in this dispute and the Court assesses her as someone who has no wish to take sides between SC and FC.

41. SR has thought about how she would discharge her role as a guardian or committee of the person for JC. Her insight into JC’s outlook is that she believes that JC “may be scared” that FC is “just going to up and take him away or something” if FC were to come to visit JC. SR thinks that she can reassure JC that FC has no such intention and that family tension can be reduced considerably by her coordinating a visit by FC to JC. She believes, and the Court accepts, that she could arrange for FC to visit JC with reduced hostility. SR believes, and the Court accepts, that if she were appointed as a committee of the person or a guardian for JC that she would endeavour to “try and facilitate” such visits. Moreover, the Court assesses her as having the professional capability of doing so.

42. The Court put to SR the problems that might arise if SC offered strong opinions against the idea of FC coming to visit JC. The Court raised with her the possibility that if SC took this position that may create tension in the relationship between SR’s daughter and her partner, SC’s son, or generally between SR and SC’s side of the family. But SR had thought this issue through before she gave evidence and had already anticipated this as a potential point of future conflict in her appointment. She explained, “we can reach a neutral ground and…I could facilitate a meeting that didn’t have to necessarily even involve SC”. Her preliminary idea for managing FC having access to JC is that there could be a meeting directly between FC and JC and members of their respective families and FC did not need to be involved. SR had clearly rehearsed in her own mind the way that she could negotiate solutions to this issue, in a way that showed that she had good insight into the issue and that it needed to be solved. All of this demonstrates her general suitability to take on the role as guardian or committee of the person for JC.

43. SR has experiences both as a geriatric nurse and in her personal life in managing family disruption. She says that she has been through much family tension within her own family and that she had to manage access arrangements with her own children in their early years.

44. In the Court’s view, even though JC currently expresses views that he does not wish to see FC or FC’s family, it is highly desirable in JC’s best interests to actively explore the resumption of such contact. The Court judges that SR will actively pursue this objective. SR says, and the Court accepts, that as a result of SR’s experience her insight is that whether or not SC wants JC to meet up with FC it will probably be “good for all involved that everyone separately can get on and catch up with JC because they are his family”. This accords with the Court’s view of the situation and what is in JC’s best interests. Her aim is to reach the position that “may be a lot of hostility can be put to bed” once the litigation is sorted out. SR says that because of “what I went through” with promoting her own children to take part in access arrangements, she understands the perspective of FC and the benefit of FC visiting, even though JC might not want “always want that to happen”.

45. SR volunteered for the role of guardian or committee of the person for JC because, as she explained, “I’m very fond of JC and his family”. She heard about JC being “stressed and worried about what was going to become of him” so she felt she should step in “as a friend”. The Court accepts her evidence and assesses her character and life experience as well equipping her to be objective. She said herself that she “has a different perspective than both sides of the family who could step in and be a voice for JC.”

46. JC wants SR to be his guardian. JC has said to SR that he would like her to be his guardian. But in addition to that it was quite evident to the Court from the interaction of the parties in the proceedings that JC has an excellent relationship with SR. JC was spontaneously smiling and happily communicating with SR across the AVL communication system during her Court appearance. JC visibly lightened up as soon as she came online. He had an obvious rapport with her.

47. Mr Crossland on behalf of FC challenged SR and questioned her objectivity, given her family relationship with SR. But in answer to this SR said convincingly that she would not give in to SC even if the stand she was taking led to her taking a position about JC which displeased SC. She firmly dealt with that suggestion saying:

“I wouldn’t. That is not the type of person I am. Like I said I’m a professional. I work in aged care. I have five years of being, supervising a 14-bed aged care facility. I have seen family conflict after conflict at the end of life and I am sorry but no I would not take a side. I think everyone needs to be heard and it would be JC, I would take him probably away from the situation and try and work things out fairly”.

48. This evidence was compelling, empathetic, and showed a professional approach to SR’s prospective appointment. This also showed that SR had no doubt about her authority were she to be appointed as JC’s guardian or his committee of the person. And she would conduct herself with impartiality between SC and FC.

49. SR has ready access to see JC. SR lives in Mundubbera in Queensland, which is about 1400 km and a two-hour plane flight from Cairns. But SR often visits Cairns. She has three children living in Cairns. She will be there more often soon because of the prospective birth of her grandchild. She generally visits for a week or two and she says, and the Court accepts, that it would be easy for her to see JC while she is there.

50. Appointing SR as a guardian or committee of the person for JC is far superior to appointing the Queensland Public Guardian. It is most unlikely that JC would now react with equanimity to having to meet a new officer from the Queensland Public Guardian. The Court has already imposed Ability One upon him in its previous orders in relation to the management of his estate. And it is quite clear from the Court’s interaction with JC that he would resist additional relationships outside the family being forced upon him when he is convinced he can satisfactorily manage his affairs with the assistance of the family.

51. Another significant advantage in appointing SR over someone from the Queensland Public Guardian is that SR can go straight into the role without delay and can visit JC in exercise of her new role on her next visit to Cairns. It is likely to take the Queensland Public Guardian some little time to become familiar with JC’s personal circumstances. At his age it is undesirable to have any further delay while someone else familiarises themselves with his situation.

52. Finally, some other implementation issues must be considered. In the first judgment the Court found that the 2020 EGA revocation did not comply with Guardianship Act, s 6H(2)(c)(ii) and on that basis and based on the operative undue influence of SC, as found in the first judgment, the Court finds the 2020 EGA revocation invalid. The 2020 EGA was also invalid due to the operative undue influence of FC which was as effective in vitiating JC’s consent. The orders made with the first judgment and on 15 February 2023 have not yet dealt with the appropriate form of orders declaring these instruments invalid. That is done in the orders below.

53. That leaves the 2017 EGA intact, appointing FC as JC’s guardian. The Court’s reasons in the first judgment and in this judgment make clear that the 2017 EGA can no longer stand. The Court will therefore exercise its review jurisdiction under Guardianship Act, s 6L to terminate that instrument. The orders made below also provide for this outcome.

54. JC will continue to reside in Queensland. As the Court has found it will be too disruptive to move him, not in his best interests, and against his will. The appointment of a committee of the person can take place under the inherent jurisdiction with respect to protective persons of both this Court and the Queensland Supreme Court. That inherent jurisdiction is in all material respects the same in both Courts. JC’s estate and welfare are closely connected with this State. And this Court can exercise the jurisdiction of the Queensland Supreme Court pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987 and the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld).

55. Queensland legislation, the Guardianship and Administration Act 2000 (Qld) ss 11B, 11C and 33, also provides for various powers and authorisations to be granted to a person in a guardianship position such as SR. The Court may be prepared if necessary to make orders under that legislation using the Jurisdiction of Courts (Cross Vesting) Act 1987. The parties should consider in light of the Court’s reasons and orders whether supplementary orders of this kind are needed. This can be dealt with at the directions hearing provided for below.

Conclusion and Orders

56. This judgment may not have resolved all issues that the parties wish to contest. For that reason, the Court will provide for a final mention date for these proceedings to allow the parties to deal with any remaining contestable issues. That date will be Thursday, 20 April 2023 at 2:15 pm, or such other mutually convenient time as the parties may wish to arrange with my Associate. If the Court’s orders today mean that no further issues are outstanding and no mention date is required, then that proposed date can be cancelled.

57. For these reasons the Court makes the following orders, notations and directions:

1. Declare that the document entitled ‘Revocation of Appointment of Enduring Guardian’ executed by JC on or about 3 August 2020, is invalid and of no legal force or effect.

2. Declare that the document entitled ‘Appointment of Enduring Guardian’ made or purportedly made by JC on 6 August 2020, is invalid and of no legal force or effect.

3. Order pursuant to a review conducted under Guardianship Act 1987, s 6L that JC’s appointment of the plaintiff, FC, as his enduring guardian (such appointment effected by document executed by JC on 12 December 2017 and by the plaintiff on 29 April 2020 is terminated with immediate effect.

4. Note that Order (5) is made pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987, s 9 and in exercise of the jurisdiction conferred on this Court by the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 4(1).

5. Order that SR be appointed to be a committee of the person of the second defendant, JC, pursuant to the inherent jurisdiction of the Supreme Court of New South Wales including its parens patriae jurisdiction, and pursuant to the equivalent jurisdiction of the Supreme Court of Queensland.

6. SR is authorised and directed to allow the plaintiff and members of the plaintiff’s immediate family reasonable access to the person of JC on such terms as SR may from time to time determine.

7. Grant liberty to apply, generally, to the parties, the financial manager, the NSW Trustee and Guardian, SR and any person with a genuine interest in the welfare of the defendant.

8. List these proceedings for directions at 2.15pm on 20 April 2023, or at such other mutually convenient time that the parties may arrange with my Associate.

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Decision last updated: 14 April 2023