G v G

[2016] NSWSC 511

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	G v G [2016] NSWSC 511
Hearing dates:	-
Date of orders:	26 April 2016
Decision date:	26 April 2016
Jurisdiction:	Equity
Before:	Lindsay J (in chambers)
Decision:	(1) Protected Estate Management Orders varied by appointment of a new manager to act jointly with the continuing manager; (2) Order that the Managers also be appointed as a committee of the person (ie, Guardians) of the protected person; and (3) Directions given in relation to management of the estate and person of the protected person.
Catchwords:	PROTECTIVE JURISDICTION - Incapacity for self-management – Management of protected estate – Variation and appointment of family members as managers   GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appointment – Capacity for self-management – Meaning – Governed by nature and purpose of protective jurisdiction - Protected person exposed to exploitation via proposal for marriage overseas - Orders facilitating placement of protected person’s name on watchlist at points of arrival and departure of Australia – Orders for guardians to have care of protected person’s passport
Legislation Cited:	Guardianship Act 1987 NSW NSW Trustee and Guardian Act 2009 NSW Protected Estates Act 1983 NSW
Cases Cited:	GAU v GAV [2014] QCA 308 Holt v Protective Commissioner (1993) 31 NSWLR 227 IR v AR [2015] NSWSC 1187 M v M [1981] 2 NSWLR 334 Re Eve [1986] 2 SCR 388; (1986) 31 DLR (4th) 1 Wellesley v Duke of Beaufort (1827) 2 Russ 1; 38 ER 236 RH v CAH [1984] 1NSWLR 694 Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 Wellesley v Wellesley (1828) 2 Bli NS 124; 4 ER 1078
Texts Cited:	HS Theobald, The Law Relating to Lunacy (London, 1924), pages 49-50
Category:	Principal judgment
Parties:	Plaintiff: Father, and continuing Manager of the protected estate, of the defendant. Defendant: A person in need of protection
Representation:	Solicitors:   Plaintiff: Walker Legal and Conveyancing
File Number(s):	2016/00006045

Judgment

INTRODUCTION

1. The plaintiff (the father and protected estate manager of the defendant, an adult male) applies to the Court for orders in aid of management of the estate, and person, of the defendant. He apprehends that third parties are seeking to exploit the defendant by encouraging him to travel overseas, with them or under their direction, to marry a woman who might, by such a marriage, secure both a right of residency in Australia and access to the defendant’s substantial estate.

THE APPLICATION

2. The application is made by notice of motion in the proceedings in which (under the Protected Estates Act 1983 NSW, since repealed and replaced by the NSW Trustee and Guardian Act 2009 NSW) the plaintiff was, by order of the Court, appointed to manage the defendant’s estate.

3. By his notice of motion, the plaintiff seeks:

1. an order that the orders made for his appointment as manager of the estate of the defendant be varied so as to appoint him and one of his daughters (a sister of the defendant) joint managers of the estate;

2. an order that the plaintiff and his daughter also be appointed guardians of the defendant; and

3. directions in relation to management of the estate and person of the defendant, authorising the plaintiff and his daughter (as joint protected estate managers and guardians of the defendant) to take control of the defendant’s passport, and liaise with public authorities, for the purpose of controlling the defendant’s capacity to travel overseas.

4. The plaintiff’s application for guardianship orders is expressed to be an application for orders under the Guardianship Act 1987 NSW; but, in substance, it invokes the Court’s inherent protective (parens patriae) jurisdiction, generally exercised by the appointment of a committee of the person (the historical title of the office of a guardian appointed by the Lord Chancellor in the exercise of his parens patriae jurisdiction): IR v AR [2015] NSWSC 1187 at [55]-[60], [101]-[105] and [114]-[115] citing, inter alia, HS Theobald, The Law Relating to Lunacy (London, 1924), pages 49-50 and RH v CAH [1984] 1 NSWLR 694 at 707B.

5. Reflecting the scheme of orders that can be made by the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”), under Part 3 (sections 7-25C) of the Guardianship Act 1987, the plaintiff’s application for guardianship orders is expressed in the form of an application for a “continuing guardianship order” for three years (reflecting constraints found in sections 16(1)(b) and 18 of the Guardianship Act) with functions limited (as contemplated by a sections 16(1)(c) and 16(2) Act) to:

1. deciding the place (such as a specific nursing home, or the defendant’s own home) in which the defendant is to live;

2. deciding the health care that the defendant is to receive;

3. deciding the other kinds of personal services that the defendant is to receive;

4. giving consent to the carrying out of medical or dental treatment on the defendant;

5. controlling travel of the defendant outside Australia, including:

1. a right to apply for a PACE alert for the defendant; and

2. a right to apply for the defendant’s name and particulars to be put on a watchlist at all points of arrival and departure in the Commonwealth of Australia.

6. Ancillary relief sought from the Court takes the form of orders intended to have the Court request the Australian Federal Police to place the defendant on a watchlist, coupled with orders for delivery up or cancellation of the defendant’s passport, and orders providing for service of the Court’s orders on the Australian Passport Office, the Australian Federal Police and the Department of Immigration and Border Control.

7. The plaintiff’s application to the Court is supported by a contemporaneous medical report from the defendant’s general practitioner. It has been authorised by the NSW Trustee in its role (under the NSW Trustee and Guardian Act 2009) as monitor of protected estate managers. It has been made after consultations with the Australian Border Force, in August 2015, resulted in Commonwealth authorities taking steps to monitor any attempt by the defendant to depart Australia.

8. As I read the evidence, the Commonwealth authorities, in effect, invited the plaintiff to obtain Court orders capable, if need be, of restraining the defendant from travelling overseas. They drew to attention limitations on their powers, unattended by a court order, to do more than monitor the defendant’s movements.

9. The plaintiff’s motion has been referred to me, in chambers, as the Protective List Judge with a view to orders being made as sought, or directions being given for further hearing of the motion. Protected estate management orders and guardianship orders are, in nature, susceptible to review in service of the protective jurisdiction in aid of which they are made.

THE WELFARE OF THE DEFENDANT IS THE PARAMOUNT CONSIDERATION

10. Upon a consideration of what, if any, orders should be made, the Court must be mindful of: (a) the protective purpose of the jurisdiction invoked; and (b) in that light, a need to ensure that whatever is done, or not done, is in the interests, and for the benefit, of the defendant as a person in need of protection: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238D-F and 241-242A; GAU v GAV [2014] QCA 308 at [48]; RH v CAH [1984] 1 NSWLR 694 at 706G; and M v M [1981] 2 NSWLR 334 at 336A-338D.

VARIATION OF SUBSISTING PROTECTED ESTATE MANAGEMENT ORDERS

11. Insofar as the plaintiff’s motion seeks to have the defendant’s protected estate managed by the plaintiff and a co-manager acting jointly, it is routine in character. Having reached his 60s, the plaintiff is conscious of a need for succession planning in arrangements for management of the defendant’s estate. His daughter has, in recent years, assisted him in management of his son’s estate. Looking to the future, he seeks to formalise her management role. Evidence placed before the Court supports her nomination as a “suitable person” (within the meaning of section 41(1) (b) of the NSW Trustee and Guardian Act) for appointment as a manager of the defendant’s estate.

12. Accordingly, I make orders to the following effect:

1. DECLARE, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, that the defendant is incapable of managing his affairs.

2. ORDER, pursuant to section 41(1)(a) of the NSW Trustee and Guardian Act, that the estate of the defendant be subject to management under the Act.

3. ORDER, pursuant to section 41(1)(b) of the NSW Trustee and Guardian Act, that the plaintiff and his daughter (“the Managers”) be appointed jointly managers of the estate of the defendant subject to the orders and direction of the NSW Trustee.

4. ORDER that, on the death or discharge of either of the Managers, custody of the defendant’s estate continue in the other of them.

5. ORDER that the Managers may not do anything in reliance on their appointment as managers of the estate of the defendant until the NSW Trustee has authorised them to assume management of the defendant’s estate.

6. ORDER, pursuant to section 68 of the NSW Trustee and Guardian Act, that the Managers give such, if any, security in respect of their management of the defendant’s estate as the NSW Trustee may determine to be appropriate.

7. ORDER that the protected estate management orders made against the defendant (under the Protected Estates Act 1983), whereby the plaintiff was appointed manager of the estate of the defendant, be varied so as to conform to orders (1) to (6) of these Orders.

8. ORDER, pursuant to section 64 of the NSW Trustee and Guardian Act, that, subject to any further order of the court or any order or direction of the NSW Trustee, the Managers jointly and severally do all things necessary or expedient to transfer management of the estate of the defendant from the plaintiff (as sole manager) to the Managers (as joint managers).

9. ORDER, pursuant to rule 36.4 of the Uniform Civil Procedure Rules 2005 NSW and section 64 of the NSW Trustee and Guardian Act, that orders (1) to (8) of these Orders are to take effect on 10 May 2016 or such other date as may be appointed by the Court.

13. The purpose of deferring commencement of the effective operation of these orders is to enable administrative arrangements to be made, both within the office of the NSW Trustee and by the Managers, to facilitate their orderly implementation. In a practical sense, nothing is lost by this course being taken because the plaintiff’s appointment as the defendant’s protected estate manager continues in the meantime.

GUARDIANSHIP ORDERS (FOR THE TIME BEING)

14. Greater caution is required, in the circumstances of the present case, in management of the defendant’s person than in management of his estate.

15. The Court’s variation of ongoing protected estate management orders does not subject the defendant to a radically different regime for management of his property. The NSW Trustee remains in place as monitor of the defendant’s family’s management of his property. The nature and extent of his property is plainly beyond his capacity to manage for himself.

16. By contrast, subjection of the defendant’s person to guardianship orders adds a layer of legal regulation to the family’s informal arrangements for management of his life. This could impact, not only on arrangements for day-to-day living, but also on his capacity for freedom of movement and his freedom to choose friends, and to develop personal relationships.

17. Although the Court’s “guardianship jurisdiction” is not, in terms, constrained by section 4 of the Guardianship Act, the “general principles” identified in that section parallel the approach of the Court to an exercise of its inherent, protective jurisdiction.

18. Section 4 is in the following terms:

“4 General principles

It is the duty of everyone exercising functions under [the Guardianship 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.”

19. The purposive character of the Court’s inherent, protective jurisdiction was authoritatively confirmed by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB(Marion’s Case) (1992) 175 CLR 218 at 258-259 by reference to Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21; Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 30; 38 ER 236 at 243; and Wellesley v Wellesley (1828) 2 Bli NS 124 at 131, 136 and 142; 4 ER 1078 at 1081, 1083 and 1085.

20. As these cases demonstrate, the limits (and scope) of the parens patriae jurisdiction have not been, and cannot be, defined save by reference to the purposive character of the jurisdiction, which exists for the protection of those who are not able to take care of themselves.

21. The ambit of the Court’s guardianship jurisdiction can be seen sufficiently, for present purposes, in the following extract from the judgment of Powell J in RH v CAH [1984] 1 NSWLR 694 at 707B:

“While, once a person is committed to the care of a committee [in modern language, a guardian], the latter, in the absence of special order, has a general discretion as to the former’s care and treatment, the court retains its supervisory role, and may, in an appropriate case, where it is in [the incapable person’s] interests that it do so, make a variety of orders, including an order for access: see, for example, R v Clarke (1762) 3 Burr 1362; 97 ER 875; Ex parte Lyttleton (1801) 6 Ves Jun 7; 31 ER 911; see also Re B (an alleged lunatic) [1891]3 Ch 274 at 277.”

22. Mindful of both a need to secure the person of the defendant and to preserve his freedom of action so far as he is capable of exercising it, I today make a general form of guardianship order (enabling immediate steps to be taken to protect the defendant) subject to directions designed to enable the Court to assess the defendant’s needs with the benefit of personal engagement with him and his family.

23. Subject to their ongoing review, I make orders to the following effect:

1. ORDER, subject to further order, that the plaintiff and his daughter (“the Guardians”) be appointed jointly as the committee of the person (that is, as guardians) of the defendant.

2. ORDER, subject to further order, that the Guardians be at liberty to request the Australian Federal Police:

1. to place the name and particulars of the defendant on a watchlist in force at all points of arrival and departure in the Commonwealth of Australia; and

2. to maintain the defendant’s name on the watchlist until the Court orders its removal.

3. ORDER, subject to further order, that the defendant’s passport be delivered up to the Guardians.

4. ORDER, subject to further order, that the Guardians be at liberty to cancel the passport of the defendant.

5. ORDER, subject to further order, that any new passport issued by the Australian Passport Office for the defendant be delivered to the Guardians.

6. ORDER, subject to further order, that the Guardians provide to the NSW Trustee and the Public Guardian such reports as the NSW Trustee or the Public Guardian may in writing, from time to time, require of them, jointly or severally, in relation to management of the estate or management of the person of the defendant.

7. ORDER that liberty to apply, generally, be reserved to the defendant, the Managers, the Guardians, the NSW Trustee, the Public Guardian and any other person with a genuine interest in the welfare of the defendant.

8. NOTE that, pursuant to rule 36.4 of the Uniform Civil Procedure Rules 2005, these orders take effect on the date upon which they are made (that is, today).

ONGOING REVIEW OF THE DEFENDANT’S WELFARE AND PROTECTIVE ORDERS

24. These orders are accompanied by ancillary orders designed to have the Managers/Guardians, the defendant and (as may be appropriate) other members of the defendant’s family attend before the Court, on a date convenient for that purpose and on notice to the NSW Trustee and the Public Guardian, for a direct engagement by the Court with the family. That will enable the Court’s orders, particularly the guardianship orders, to be the subject of reappraisal.

25. The NSW Trustee and the Public Guardian can appear, or submit to the orders of the Court, as they may be advised.

26. On the materials presently available to me, I anticipate that, in due course, an order will be made that the costs of and incidental to the plaintiff’s notice of motion be paid out of the estate of the defendant on the indemnity basis. However, no such order is presently required, in circumstances in which the NSW Trustee has authorised expenditure by the plaintiff for the purpose of moving the Court for relief. For the time being, it is not necessary to consider the question of costs further.

27. On the occasion of the defendant and his family attending before the Court, I look forward: (a) to having an opportunity to ascertain the defendant’s views about the current proceedings, so far as he is able and willing to express them; (b) to receiving confirmation that all members of the defendant’s family, including his mother and all siblings, are content with arrangements for his protective care; and (c) to being informed of whether the defendant has a will (and, if so, its terms) and whether consideration has been given to the need, or otherwise, for a “statutory will” such as may be made pursuant to Succession Act 2006 NSW, sections 18 – 26.

28. As presently advised, I incline to the view that, if the defendant’s prospective deceased estate is protected against opportunistic exploitation, that fact may have a bearing upon the need for guardianship orders affecting his person or, at least, the width of any such orders.

29. The object of the current regime of protective orders, presently under ongoing review, is not to prevent the defendant from going overseas, pursuing friendships or marrying, but to reduce opportunities, and incentives, for him to be exploited by people not mindful of his welfare and interests.

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ADDENDUM (24 May 2016)

30. On 23 May 2016 the plaintiff, the defendant, the wife of the plaintiff (mother of the defendant) and the sister of the defendant appointed, with the plaintiff, as a co-manager of the estate, and as a co-guardian, of the defendant, appeared before Lindsay J in person (together with Ms Catanzariti of counsel and her instructing solicitor, Mr Walker) as contemplated by paragraph 24 of the principal judgment. The NSW Trustee and the Public Guardian were notified of the appointment, but did not appear.

31. The plaintiff tendered letters written by those of the defendant’s siblings who did not appear before the Court, expressing their support for the regime of orders made consequent upon the principal judgment.

32. All members of the family (including the defendant) thus, personally or by correspondence, supported that regime of orders.

33. At the conclusion of an informal proceeding (during the which the topics identified in paragraph 27 of the principal judgment were amongst those canvassed), Lindsay J made orders and notations to the following effect:

1. NOTE the orders made by the Court on 26 April 2016.

2. NOTE that, by those orders, the NSW Trustee and the Public Guardian may require the Guardians to provide reports from time to time.

3. NOTE that in attendance before the Court today have been the defendant personally, his father the plaintiff, his mother and his sister, a co-guardian with his father.

4. NOTE that the defendant’s remaining siblings have informed the Court in writing (Exhibits P1 and P2) that they consent to the arrangements embodied in the Court’s orders of 26 April 2016 for the defendant’s protective care.

5. DIRECT that a copy of Exhibits P1 and P2 and a copy of the transcript of proceedings before the Court today be provided to the NSW Trustee and the Public Guardian respectively.

6. DIRECT that the NSW Trustee and the Public Guardian, from time to time, and not less than every three years, review the scheme of orders made on 26 April 2016 with a view to giving due consideration to whether an application should be made for those orders to be discharged or varied.

7. ORDER that the costs of and incidental to the notice of motion (upon which the orders of 26 April 2016 were made) be paid out of the estate of the defendant on the indemnity basis.

8. NOTE that the reservation of liberty to apply recorded in the orders made on 26 April 2016 is continuing.

Amendments

26 May 2016 - -

26 May 2016 - -

25 May 2016 - Re-formatting numbering.

24 May 2016 - Addendum of 24 May 2016.

23 May 2016 - Deletion of the word "sees" after "section 41(1)(b)" in paragraph 11.

Decision last updated: 26 May 2016