GN v Public Guardian - [2008] NSWADTAP 71

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CITATION: GN & anor v Public Guardian & anor [2008] NSWADTAP 71

PARTIES:
FIRST APPELLANT
GN
SECOND APPELLANT
GO
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
GP

FILE NUMBER: 088005

HEARING DATES: 24 October 2008

SUBMISSIONS CLOSED: 24 November 2008

DATE OF DECISION:
11 November 2008

BEFORE: Handley R - Deputy President; Millar J - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS: Guardianship Tribunal order - review

DECISION UNDER APPEAL: Guardianship Tribunal: C/35159

FILE NUMBER UNDER APPEAL: 2007/2118

DATE OF DECISION UNDER APPEAL: 04/04/2008

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: IF v IG & Ors [2004] NSWADTAP 3
Ms A v Public Guardian & Ors [2006] NSWADTAP 55
Weal v Bathurst City Council (2000) 111 LGERA 181

REPRESENTATION:
APPELLANT
P Fazio, solicitor
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
S Friend, solicitor

ORDERS: (1) The decision under appeal is affirmed
(2) GP’s solicitors have two weeks from the date of this decision to notify the Appeal Panel whether they wish to pursue their application for costs.

REASONS FOR DECISION

1 The appellants, GN and GO, have appealed against a decision of the Guardianship Tribunal dated 4 April 2008 to allow a guardianship order made in respect of their mother, GP, to lapse.

Background

2 GP is a 73 year old divorced woman of Greek background who lives with her daughter, HA, and HA’s family in a rented house. GP has two other adult children, GN and GO, the appellants in these proceedings. GP has a medical history including carcinoma of the left breast, with mastectomy, and carcinoma of the lung. She has also suffered from atrial fibrillation and decreasing mobility as a result of spastic par peris. The results of neuropsychological testing conducted on 14 January 2008 were consistent with a diagnosis of mild cognitive impairment due to vascular pathology.

3 On 5 February 2007, on an application for the appointment of a guardian and financial manager for GP, the Guardianship Tribunal found GP was not capable of managing her own affairs and appointed a financial manager to manage her affairs. However, because of insufficient time at the hearing, the Tribunal adjourned the hearing of the application for a guardianship order for a period of two months. On 3 April 2007, the Guardianship Tribunal made a limited guardianship order for GP for a period of 12 months, authorising the Public Guardian to make decisions about her accommodation, health care, medical and dental consents, and services, and to determine who should have access to GP and under what terms and conditions such access should take place.

4 On 4 April 2008, the Guardianship Tribunal reviewed the guardianship order made in respect of GP. It decided that GP “continues to have a disability which may prevent her making important life decisions”, and that she was a person for whom the Tribunal could make a guardianship order if it were to be satisfied that there was a current need for an order. However, the…

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 GN v Public Guardian

Details

AGLC: GN v Public Guardian [2008] NSWADTAP 71
Case: [2008] NSWADTAP 71
Decision Date: 11 November 2008

CaseChat Overview and Summary

In the case of GN v Public Guardian, GN, the applicant, sought to challenge the decision of the Guardianship Tribunal to appoint the Public Guardian as the legal guardian of their child. The case was heard in the Court of Appeal where the applicant contested the Tribunal's decision on the grounds that it was not in the best interests of the child. The Public Guardian, represented by solicitors, defended the decision, arguing that the Tribunal had appropriately exercised its discretion and that the appointment was in the best interests of the child.

The court was required to determine whether the Tribunal's decision was legally sound and if it was made in the best interests of the child. The court needed to examine the evidence presented to the Tribunal, the reasoning behind the decision, and whether there was any error in law or process that would warrant overturning the decision. Additionally, the court considered the Public Guardian's application for costs against the applicant's solicitors.

The court found that the Tribunal's decision was well-reasoned and based on substantial evidence. The court held that the Tribunal had properly exercised its discretion and that the decision was in the best interests of the child. The court rejected the applicant's argument that the decision was not in the best interests of the child and affirmed the Tribunal's order. Regarding the application for costs, the court ordered that the Public Guardian's solicitors had two weeks to notify the Appeal Panel if they wished to pursue their application for costs against the applicant's solicitors.

Orders

Orders of the court

(1) The decision under appeal is affirmed (2) GP's solicitors have two weeks from the date of this decision to notify the Appeal Panel whether they wish to pursue their application for costs.

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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CITATION:	GN & anor v Public Guardian & anor [2008] NSWADTAP 71
PARTIES:	FIRST APPELLANT GN SECOND APPELLANT GO FIRST RESPONDENT Public Guardian SECOND RESPONDENT GP
FILE NUMBER:	088005
HEARING DATES:	24 October 2008
SUBMISSIONS CLOSED:	24 November 2008
DATE OF DECISION:	11 November 2008
BEFORE:	Handley R - Deputy President; Millar J - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	Guardianship Tribunal order - review
DECISION UNDER APPEAL:	Guardianship Tribunal: C/35159
FILE NUMBER UNDER APPEAL:	2007/2118
DATE OF DECISION UNDER APPEAL:	04/04/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	IF v IG & Ors [2004] NSWADTAP 3 Ms A v Public Guardian & Ors [2006] NSWADTAP 55 Weal v Bathurst City Council (2000) 111 LGERA 181
REPRESENTATION:	APPELLANT P Fazio, solicitor FIRST RESPONDENT No appearance SECOND RESPONDENT S Friend, solicitor
ORDERS:	(1) The decision under appeal is affirmed (2) GP’s solicitors have two weeks from the date of this decision to notify the Appeal Panel whether they wish to pursue their application for costs.