FDN - [2011] QCAT 325

CITATION:

FDN [2011] QCAT 325

PARTIES:

FDN

APPLICATION NUMBER:

GAA1182-10; GAA1183-10; GAA4191-10; GAA4162/11; GAA4163-11

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

21 June 2011

HEARD AT:

Cairns

DECISION OF:

L. Clarkson
L. Pearce

DELIVERED ON:

4 July 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The Adult Guardian is appointed as guardian for FDN for decisions about accommodation and provision of services. This appointment is reviewable and is to be reviewed in two (2) years.

The application for the appointment of a guardian for restrictive practices for FDN is dismissed.

The Public Trustee of Queensland is appointed as administrator for FDN for all financial matters. This appointment remains current until further order of the Tribunal.

CATCHWORDS:

GUARDIANSHIP and ADMINISTRATION
- capacity of adult where adult taken out of State – jurisdiction of tribunal where adult lacks capacity to change domicile – appropriateness of family members to be appointed guardian and administrator

Sections 12(1), 14(2), 15, 80ZD(1) of the Guardianship and Administration Act 2000.

APPEARANCES and REPRESENTATION (if any):

IM, FG: FDN’s parents

Brent Wismer: Representative, Department of Communities (Child Safety)

Kirrily Turner, Deborah Godden: Representatives, the Public Trustee

Robert Davie: Representative, Office of the Adult Guardian

Virginia Downton: St John’s Community Care

Dr Joh Viljoen: Family Medical Practitioner.

REASONS FOR DECISION

FDN is a young adult, 18 years of age, who until recently resided with his family in North Queensland.
When aged 17 years, FDN was subject to a short term custody child protection order.
On 1 June 2010, at the hearing of applications brought by the Department of Communities (Child Safety), the Tribunal appointed the Adult Guardian and The Public Trustee of Queensland as FDN’s guardian and administrator respectively. At that hearing, the Tribunal also initiated an application for the appointment of a guardian for restrictive practices, and appointed the Adult Guardian as guardian for restrictive practices (general).
On 10 May 2011, for reasons outlined in its decision, the Appeal Tribunal set aside the orders made on 1 June 2010, and remitted the matters to the Tribunal for reconsideration.
Since the decision of the Appeal Tribunal, FDN’s father, IM, filed applications seeking his appointment as his son’s guardian and administrator.
Thereafter, IM advised the Tribunal that FDN now resides interstate, and he submitted that in these circumstances, the Tribunal should not hear the applications, or should dismiss all applications.
The Tribunal heard all matters on 21 June 2011.

Legislation and Issues

In relation to the appointments sought, relevant legislation included ss.12, 15, Schedule 4, and 80ZD(1) of the Guardianship and Administration Act 2000.
Section 12 outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian or an administrator for an adult.

[10] Section 15 outlines “appropriateness considerations” which the Tribunal must consider in deciding whether a person is appropriate for appointment as guardian or administrator.

[11] Section 80ZD(1) outlines the matters about which the Tribunal must be satisfied before it may appoint a guardian for a restrictive practice matter.

[12] In…

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.

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Details

AGLC: FDN [2011] QCAT 325
Case: [2011] QCAT 325
Decision Date: 4 July 2011

CaseChat Overview and Summary

The case involves FDN, an individual who was taken out of Queensland without their consent and is believed to lack the capacity to manage their own affairs. The dispute centres on the jurisdiction of the Tribunal to appoint a guardian and administrator for FDN, and the appropriateness of family members to be appointed in these roles. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The central legal issues before the Tribunal were whether it had the jurisdiction to appoint a guardian and administrator for FDN, given that FDN had been taken out of Queensland without their consent. Another issue was the appropriateness of family members to be appointed as guardian and administrator, considering FDN's lack of capacity. The Tribunal needed to determine whether family members were suitable to act in these roles and whether the Public Trustee of Queensland was the more appropriate choice for the role of administrator.

The Tribunal found that it had jurisdiction to appoint a guardian and administrator for FDN. It determined that family members were not suitable to be appointed as guardian or administrator, as there were concerns about their ability to act in FDN's best interests. The Adult Guardian was appointed as guardian for decisions about accommodation and provision of services, with a review to occur in two years. The application for the appointment of a guardian for restrictive practices was dismissed. The Public Trustee of Queensland was appointed as administrator for all financial matters, with the appointment remaining current until further order of the Tribunal.

The Tribunal's orders included the appointment of the Adult Guardian as guardian for decisions about accommodation and provision of services, and the Public Trustee of Queensland as administrator for all financial matters. The Adult Guardian's appointment was to be reviewed in two years, and the application for the appointment of a guardian for restrictive practices was dismissed.

Orders

Orders of the court

The Adult Guardian is appointed as guardian for FDN for decisions about accommodation and provision of services. This appointment is reviewable and is to be reviewed in two (2) years.

The application for the appointment of a guardian for restrictive practices for FDN is dismissed.

The Public Trustee of Queensland is appointed as administrator for FDN for all financial matters. This appointment remains current until further order of the Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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