FXE - [2018] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FXE [2018] NSWCATGD 4
Hearing dates: 17 January 2018
Date of orders: 23 February 2018
Decision date: 23 February 2018
Jurisdiction: Guardianship Division
Before: P H Molony, Senior Member (Legal)
S E Taylor, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
The application for guardianship is dismissed.

Catchwords:
GUARDIANSHIP – subject person resides in NSW “border town”– medical treatment undertaken in NSW and Victoria – substitute consent provisions in Victoria and New South Wales jurisdiction

GUARDIANSHIP – interstate recognition of guardianship orders – substitute consent provisions in Victoria and New South Wales – whether NCAT orders overriding objection to medical treatment can be registered by VCAT
GUARDIANSHIP – substitute consent for medical treatment for persons aged 16 to 18 in NSW – parental consent to medical treatment – interrelationship between Guardianship Act and “parental responsibility” provisions of Family Law Act 1975 (Cth)
Legislation Cited: Family Law Act 1975 (Cth), s 61B-C
Guardianship Act 1987 (NSW), div 3 of pt 3, div 5 of pt 5, pt 5, ss 3(1), 3(2), 14, 14(2), 33(3), 33A(4), 34(1), 36, 46(2), 46(4) 46A
Guardianship and Administration Act 1986 (Vic), pt 4A, 6A, div 2 of pt 6, ss 26, 42HA(4), 42HA(6), 63A-F, 63F(5), 63G
Guardianship and Administration Act 1993 (SA), s 32
Guardianship Regulation 2016 (NSW), cl 10(c)
Cases Cited: CR (Guardianship) [2009] VCAT 1188
Department of Health & Community Services v JWB and SMB (“Marion's Case”) [1992] HCA 15
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
JAK [2007] NSWGT 23
NGM [2011] NSWGT 7
PT (Guardianship) [2009] VCAT 1187
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529
RC (Guardianship) [2007] VCAT 2483
Re Carla (Medical Procedure) [2016] FamCA 7
Category: Principal judgment
Parties: Miss FXE (the person concerned)
Ms TBE (mother, carer, and applicant)
The Public Guardian
Representation: J Sloan (Separate Representative)

File Number(s): 2017/00275467
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

What the Tribunal decided

The Tribunal dismissed the application for guardianship orders with respect to Miss FXE.

Background

Miss FXE is a 16-year-old young woman who lives with her mother, Ms TBE, in a suburb in regional NSW. Her parents are separated, but Miss FXE maintains regular contact with her father, Mr UZE, who also lives locally. The suburb is a border town on the Murray River.
Miss FXE is said to have a moderate intellectual disability because of contracting meningitis, and consequent hydrocephalus, when she was a baby.
A permanent ventriculoperitoneal shunt has been surgically implanted to manage her hydrocephalus. This irregularly, but consistently, requires surgical revision to address blockages and pressure problems.
While Miss FXE lives in NSW, none of the local NSW hospitals are equipped to undertake that…

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 FXE

Details

AGLC: FXE [2018] NSWCATGD 4
Case: [2018] NSWCATGD 4
Decision Date: 23 February 2018

CaseChat Overview and Summary

In this matter, FXE, the applicant, sought to have a guardianship order made in relation to a 17-year-old subject person who resides in a border town of New South Wales. The subject person had received medical treatment in both New South Wales and Victoria, leading to questions about the applicability of substitute consent provisions in each jurisdiction. The case was heard by the New South Wales Civil and Administrative Tribunal (NCAT), which had to determine whether orders made by NCAT could be registered by the Victorian Civil and Administrative Tribunal (VCAT) and the extent to which NCAT orders could override objections to medical treatment.

The primary legal issues the court had to address included the jurisdiction of NCAT to make orders concerning a subject person who resides in New South Wales but has received medical treatment in Victoria. Furthermore, the court had to consider whether NCAT orders that conflicted with objections to medical treatment could be enforced by VCAT and the relationship between the Guardianship Act and the "parental responsibility" provisions of the Family Law Act 1975 (Cth) in the context of substitute consent for medical treatment for persons aged 16 to 18 in New South Wales.

The NCAT determined that it lacked the jurisdiction to make orders concerning the subject person as they reside in New South Wales, and the orders made by NCAT could not be registered by VCAT. The court emphasised that the primary responsibility for determining medical treatment for the subject person lay with the parents, in accordance with the Family Law Act 1975 (Cth). The NCAT concluded that any orders made by NCAT would not override the objections to medical treatment and that the Guardianship Act and the Family Law Act 1975 (Cth) had to be interpreted in a manner that recognised the primacy of parental responsibility in making medical decisions for minors.

As a result, the application for guardianship was dismissed. The NCAT held that it did not have the jurisdiction to make orders concerning the subject person, and any orders made by NCAT would not override objections to medical treatment. The court emphasised the importance of recognising the interrelationship between the Guardianship Act and the Family Law Act 1975 (Cth) in determining medical treatment for persons aged 16 to 18 in New South Wales.

Orders

Orders of the court

The application for guardianship is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	FXE [2018] NSWCATGD 4
Hearing dates:	17 January 2018
Date of orders:	23 February 2018
Decision date:	23 February 2018
Jurisdiction:	Guardianship Division
Before:	P H Molony, Senior Member (Legal) S E Taylor, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	The application for guardianship is dismissed.
Catchwords:	GUARDIANSHIP – subject person resides in NSW “border town”– medical treatment undertaken in NSW and Victoria – substitute consent provisions in Victoria and New South Wales jurisdiction GUARDIANSHIP – interstate recognition of guardianship orders – substitute consent provisions in Victoria and New South Wales – whether NCAT orders overriding objection to medical treatment can be registered by VCAT GUARDIANSHIP – substitute consent for medical treatment for persons aged 16 to 18 in NSW – parental consent to medical treatment – interrelationship between Guardianship Act and “parental responsibility” provisions of Family Law Act 1975 (Cth)
Legislation Cited:	Family Law Act 1975 (Cth), s 61B-C Guardianship Act 1987 (NSW), div 3 of pt 3, div 5 of pt 5, pt 5, ss 3(1), 3(2), 14, 14(2), 33(3), 33A(4), 34(1), 36, 46(2), 46(4) 46A Guardianship and Administration Act 1986 (Vic), pt 4A, 6A, div 2 of pt 6, ss 26, 42HA(4), 42HA(6), 63A-F, 63F(5), 63G Guardianship and Administration Act 1993 (SA), s 32 Guardianship Regulation 2016 (NSW), cl 10(c)
Cases Cited:	CR (Guardianship) [2009] VCAT 1188 Department of Health & Community Services v JWB and SMB (“Marion's Case”) [1992] HCA 15 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 JAK [2007] NSWGT 23 NGM [2011] NSWGT 7 PT (Guardianship) [2009] VCAT 1187 R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 RC (Guardianship) [2007] VCAT 2483 Re Carla (Medical Procedure) [2016] FamCA 7
Category:	Principal judgment
Parties:	Miss FXE (the person concerned) Ms TBE (mother, carer, and applicant) The Public Guardian
Representation:	J Sloan (Separate Representative)
File Number(s):	2017/00275467
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).