Fernandez v New South Wales Civil and Administrative Tribunal

[2021] NSWSC 500

Supreme Court

New South Wales

Medium Neutral Citation:

Fernandez v New South Wales Civil and Administrative Tribunal [2021] NSWSC 500

Hearing dates:

9 May 2021

Date of orders:

9 May 2021

Decision date:

09 May 2021

Jurisdiction:

Common Law

Before:

Wilson J

Decision:

(1) Application for a stay of guardianship orders made by the New South Wales Civil and Administrative Tribunal (“NCAT”) is refused;

(2) A copy of this judgment is to be provided by the Registrar to Ms Sarahann Fernandez, the Public Guardian, and the Registrar of NCAT forthwith;

(3) Leave is granted to Ms Sarahann Fernandez to restore the matter to the list before the Duty Registrar on 10 May 2021.

Catchwords:

CIVIL – urgent application in the duty list – weekend telephone application – stay of guardianship orders – insufficient information for Court to intervene – application refused

Category:

Principal judgment

Parties:

Sarahann Fernandez (Plaintiff)
New South Wales Civil and Administrative Tribunal (Defendant)

Representation:

N/A

File Number(s):

2021/00129846

Publication restriction:

Nil

Judgment

1. Shortly before 4.30 pm on Sunday 9 May 2021 my Chambers was contacted by telephone by Sarahann Fernandez, who asked for a “stay” to allow her to remain with her father, rather than returning to the care facility, Positive Care Solutions, where she is required to reside. The information she provided was:

2. Ms Fernandez has schizophrenia. She is subject to a guardianship order from the New South Wales Civil and Administrative Tribunal (“NCAT”), which may be an interim order, and which requires her to reside with her father on the weekends and in the care facility through the week. Ms Fernandez says that she feels “vulnerable “in the facility as her “emotional needs” are not being met. She was clear that she is safe at the facility and in no danger or discomfit. A final decision as to her accommodation is to be made by NCAT on Tuesday 11 May 2021.

3. Ms Fernandez asks for the Court to give her “permission to refuse to go with the worker from the care facility when that person calls to collect her at 5pm.

4. The worker arrived to collect Ms Fernandez during the course of telephone discussions. The worker, Dianne, was not willing to allow Ms Fernandez to remain with her father despite her wish to do so. Dianne advised that the Public Guardian has issued an instruction to the facility to collect Ms Fernandez at 5pm on Sundays, and they are not permitted to take any other course.

5. I declined to make any order interfering with the orders now put in place by NCAT in the absence of full information concerning Ms Fernandez’s circumstances. Guardianship orders can be expected to have been put in place in the best interests of Ms Fernandez and no error has been identified in the orders or reasons for them. There is no suggestion that the accommodation with Positive Care Solutions places Ms Fernandez at risk, or is unsuitable for any reason other than personal preference. The final determination by NCAT as to Ms Fernandez’s accommodation is only two days away, on the information provided. The Court has not had any information from Ms Fernandez’s guardian as to the basis of the decision for her to live in supported care through the week. It must be inferred that the guardian had good reason for the decision. Without more thorough information than that available from Ms Fernandez, and bearing in mind the short period before NCAT finalises the situation, and the last-minute nature of the application, I am not prepared to interfere with the guardianship orders, or the guardian’s decision as to accommodation.

6. This judgment can be provided to Ms Fernandez, to the Public Guardian, and to NCAT, so that the Tribunal and relevant persons are aware of what has occurred, and so that the Tribunal is informed of Ms Fernandez’s strong wish to live with her father, and not in care.

7. Should Ms Fernandez wish to pursue her application for the urgent intervention of the Court with respect to guardianship, she can approach the Duty Registrar on 10 May 2021, who should ensure that the Public Guardian and NCAT are made aware of the fresh application, and given an opportunity to be present at any hearing of a fresh application.

orders

8. The Court’s orders are:

1. Application for a stay of guardianship orders made by the New South Wales Civil and Administrative Tribunal (“NCAT”) is refused;

2. A copy of this judgment is to be provided by the Registrar to Ms Sarahann Fernandez, the Public Guardian, and the Registrar of NCAT forthwith;

3. Leave is granted to Ms Sarahann Fernandez to restore the matter to the list before the Duty Registrar on 10 May 2021.

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Decision last updated: 10 May 2021