GKC

Case [2022] NSWCATGD 23 20 July 2022

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GKC [2022] NSWCATGD 23
Hearing dates: 20 July 2022
Date of orders: 20 July 2022
Decision date: 20 July 2022
Jurisdiction: Guardianship Division
Before: S Barnes, Senior Member (Legal)
M J Staples, Senior Member (Professional)
P J McGirr, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for GKC.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of one year from [The date that GKC turns 18].
4. This is a limited guardianship order giving the guardian(s) custody of GKC to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access GKC has to others and the conditions of access.
b) Accommodation
To decide where GKC may reside.
c) Health care
To decide what health care GKC may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where GKC is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to GKC.
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring GKC to an understanding of the issues and to obtain and consider his views before making significant decisions.
7. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].
Financial Management
1. The estate of GKC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of GKC is committed to the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within two years.
4. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].

Catchwords:
JURISDICTION – where the subject person is under the care of the NSW Minister for Families, Communities and Disability Services – whether jurisdiction affected by orders made by the Children’s Court – care orders in effect until the subject person turns 18 – finding that the jurisdiction of the Tribunal is not affected
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made, and what order should be made – 17-year-old subject person with severe autism spectrum disorder – subject person in out-of-home care – finding that the subject person is partially incapable of managing his person – need for decisions to be made in relation to accommodation, health care, medical and dental consents, services and access – high level of family conflict – proposed guardians not suitable to be appointed – Public Guardian appointed – order made – order to take effect when the subject person turns 18 – s 61 of the Civil and Administrative Tribunal Act – order…

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 GKC

Details

AGLC: GKC [2022] NSWCATGD 23
Case: [2022] NSWCATGD 23
Decision Date: 20 July 2022

CaseChat Overview and Summary

In the case, the applicant sought a guardianship order and a financial management order in relation to a 17-year-old boy, referred to as GKC, who has severe autism spectrum disorder. The subject of the orders was in out-of-home care, and care orders were in effect until he turned 18 years old. The Court was required to determine whether it had jurisdiction to make the orders, and if so, what orders should be made in relation to the guardianship and financial management of the subject person.

The court considered whether the orders of the Children’s Court affected its jurisdiction. It found that it did have jurisdiction, as the subject person was under the care of the NSW Minister for Families, Communities and Disability Services. The court also considered whether a guardianship order should be made, and if so, who should be appointed as the guardian. It found that the subject person was partially incapable of managing his person and that decisions needed to be made in relation to accommodation, health care, medical and dental consents, services and access. The court found that the proposed guardians were not suitable, and appointed the Public Guardian as the guardian. The court also considered whether a financial management order should be made, and if so, who should be appointed as the financial manager. It found that the subject person was in need of support to manage his financial affairs and appointed the NSW Trustee and Guardian as the financial manager.

The court made a guardianship order for GKC, appointing the Public Guardian as the guardian. The order provided that the Public Guardian would have the power to make decisions about access, accommodation, health care, medical and dental consents, and services. The court also made a financial management order, committing the management of the estate of GKC to the NSW Trustee and Guardian. The orders were to take effect when GKC turned 18 years old, and were to be reviewed by the Tribunal within one year for the guardianship order and two years for the financial management order.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for GKC.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of one year from [The date that GKC turns 18].

4. This is a limited guardianship order giving the guardian(s) custody of GKC to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access GKC has to others and the conditions of access.

b) Accommodation

To decide where GKC may reside.

c) Health care

To decide what health care GKC may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where GKC is not capable of giving a valid consent.

e) Services

To make decisions about services to be provided to GKC.

CONDITIONS:

6. The conditions of this order are:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring GKC to an understanding of the issues and to obtain and consider his views before making significant decisions.

7. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].

Financial Management

1. The estate of GKC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).

2. The management of the estate of GKC is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within two years.

4. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].

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

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Citations

GKC [2022] NSWCATGD 23

Cases Citing This Decision

No citing cases yet.

Cases Cited

GR v The Department of Communities & Justice [2021] NSWSC 1081
Citation 1 (Para 23)

…care. The appeal, which was by way of a rehearing, was dismissed by Sackar J on 27 August 2021 (see GR v The Department of Communities and Justice [2021] NSWSC 1081).…
R v Haydar (No 2) [2017] NSWSC 131
Citation 2 (Para 31)

…nd financial management orders to take effect when GKC turns 18 (see P v NSW Trustee and Guardian [2015] NSWSC 579 and F v NSW Trustee and Guardian [2017] NSWSC 131).…
P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 3 (Para 31)

…is a proper forum in which to seek guardianship and financial management orders to take effect when GKC turns 18 (see P v NSW Trustee and Guardian [2015] NSWSC 579 and F v NSW Trustee and Guardian [2017] NSWSC 131).…
CJ v AKJ [2015] NSWSC 498
Citation 4

…nal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 GR v The Department of Communities and Justice [2021] NSWSC 1081 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Gu…
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Citation 5 (Para 142)

…he reasonably foreseeable future ( McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:…
PB v BB [2013] NSWSC 1223
Citation 6 (Para 139)

…In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:…
Re D [2012] NSWSC 1006
Citation 7 (Para 138)

…In Re D [2012] NSWSC 1006, White J noted that in the past the issue of capability had been approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Supreme Court (and the Tribunal) now assesses the person’s own capacity to do what they are proposing to do ( Re D at [58…
Re B [2011] NSWSC 1075
Citation 8 (Para 118)

…n s 4 of the Act: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].…
P v D1 & Ors [2011] NSWSC 257
Citation 9 (Para 120)

…In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.…
W v G [2003] NSWSC 1170
Citation 10

…e and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect ( W v G [2003] NSWSC 1170, [25]).”…
P v R [2003] NSWSC 819
Citation 11 (Para 138)

…ation” of assets test to determine a person’s capability to manage his or her affairs. His Honour adopted the reasoning of Barrett J in P v R [2003] NSWSC 819 that the role of the decision-maker:…
Holt v Protective Commissioner 38 ER 774
Citation 12 (Para 160)

…In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be the financial manager but also set…

Legislation Cited

Children and Young Persons (Care and Protection) Act 1998 (NSW) 23(b), 44, 79, 79(1)(b), 79(A), 83
7 mentions (from Para 16)
Civil and Administrative Tribunal Act 2013 (NSW) 36(1), 51, 55, 61, 65
6 mentions (from Para 2)
Guardianship Act 1987 (NSW) 3(1)
2 mentions (from Para 28)
Mental Health Act 2007 (NSW)
1 mention (from Para 28)
NSW Trustee and Guardian Act 2009 (NSW)
1 mention (from Para 28)

Medium Neutral Citation:	GKC [2022] NSWCATGD 23
Hearing dates:	20 July 2022
Date of orders:	20 July 2022
Decision date:	20 July 2022
Jurisdiction:	Guardianship Division
Before:	S Barnes, Senior Member (Legal) M J Staples, Senior Member (Professional) P J McGirr, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for GKC. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of one year from [The date that GKC turns 18]. 4. This is a limited guardianship order giving the guardian(s) custody of GKC to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access GKC has to others and the conditions of access. b) Accommodation To decide where GKC may reside. c) Health care To decide what health care GKC may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where GKC is not capable of giving a valid consent. e) Services To make decisions about services to be provided to GKC. CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring GKC to an understanding of the issues and to obtain and consider his views before making significant decisions. 7. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18]. Financial Management 1. The estate of GKC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of GKC is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within two years. 4. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].
Catchwords:	JURISDICTION – where the subject person is under the care of the NSW Minister for Families, Communities and Disability Services – whether jurisdiction affected by orders made by the Children’s Court – care orders in effect until the subject person turns 18 – finding that the jurisdiction of the Tribunal is not affected GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made, and what order should be made – 17-year-old subject person with severe autism spectrum disorder – subject person in out-of-home care – finding that the subject person is partially incapable of managing his person – need for decisions to be made in relation to accommodation, health care, medical and dental consents, services and access – high level of family conflict – proposed guardians not suitable to be appointed – Public Guardian appointed – order made – order to take effect when the subject person turns 18 – s 61 of the Civil and Administrative Tribunal Act – order…