HFD
[2011] QCAT 147
•12 April 2011
| CITATION: | HFD [2011] QCAT 147 |
| PARTIES: | HFD |
| APPLICATION NUMBER: | GAA9258-10 GAA9259-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | C Endicott, Senior Member |
| DELIVERED ON: | 12 April 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Applications to review appointments of guardian and administrator are dismissed. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – review sought of appointments before expiry of appointments – no new and relevant information – applicant in other proceedings over distribution of matrimonial property – Practice Direction 8 of 2010 not satisfied – early end to proceedings Queensland Civil and Administrative Tribunal Act 2009, s 47 |
APPEARANCES and REPRESENTATION (if any):
The hearing took place on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
HFD had originally been the subject of an order appointing a guardian and administrator in August 2007.
HFD had been separated from his wife, AB, since 2007 from around the time that he had commenced to reside in a nursing home. AB returned to reside in the family home after the death of HFD’s mother in early 2009 and indicated an intention to remove HFD from the nursing home. The Adult Guardian made a decision on 23 June 2009 that HFD was not to return to the family home.
Proceedings for property settlement had been commenced in the Federal Magistrates Court and a hearing was originally set for May 2009. The hearing was adjourned until September 2009.
In July 2009 HFD applied for a declaration that he had capacity to make his own decisions. He wanted to return to live with his family. His wife and sons applied for appointment as his guardians and administrators. His wife informed the tribunal that the family was capable of providing care for HFD and that he wanted to live with his family. Despite her application, AB did not withdraw from the Federal Magistrates Court proceedings for property settlement. Those proceedings had been adjourned pending the outcome of the proceedings in the Guardianship and Administration Tribunal.
On 27 October 2009 the former Guardianship and Administration Tribunal, after considering the evidence presented in the applications, continued the appointment of the Adult Guardian as guardian for HFD for two years and continued the appointment of The Public Trustee of Queensland as his administrator on an ongoing basis until further order of the tribunal. HFD had attended that hearing in October 2009 and his views were taken into account as were the views of his wife, AB.
On 17 November 2010 AB lodged an application seeking to review the appointments of the guardian and administrator. She stated that HFD had agreed with her that they should make their own financial decisions. AB stated that her husband could make his own decisions and that he had been treated unfairly by The Public Trustee of Queensland. She alleged that money was not being used for the benefit of HFD and that he was being overcharged for services which were not being provided.
On 19 November 2010 a staff member from the tribunal registry wrote to AB and informed her that she had to comply with the provisions of Practice Direction 8 of 2010 if the review of the appointments was to proceed to a hearing. The letter also asked for confirmation that AB had not been divorced from HFD and asked her to provide submissions to establish that she was an interested party in terms of the Guardianship and Administration Act 2000.
In response to that letter, AB wrote to the tribunal by letter dated 9 December 2010. She stated she had no intention of divorcing her husband. She complained that The Public Trustee of Queensland had stopped providing her husband with a $200 a month allowance and that she had to provide him with whatever he needed. She stated that if The Public Trustee of Queensland left them alone, she would advise her lawyer to bring a halt to the property settlement hearing.
HFD wrote to the tribunal stating that a divorce was out of the question for the sake of the children. He stated that they wanted to live as a happy family again.
[10] By letter dated 15 February 2011 a staff member of the tribunal wrote to AB informing her that she had not satisfied the requirements of Practice Direction 8 of 2010. She was informed that her application for review of the appointments of the guardian and administrator would be considered for dismissal on or after 4 March 2011. She was informed that any further submissions on the proposed review should be lodged with the tribunal before that date. No further submissions were received from AB.
[11] By letter dated 20 February 2011 HFD wrote to the tribunal repeating that he wanted a life with his family and asking for an explanation as to why the tribunal was not proceeding with a review of the appointments.
[12] The tribunal has received from The Public Trustee of Queensland a copy of an order made by consent in the Federal Magistrates Court on 10 March 2011. The order made a final distribution of the matrimonial property with 36.25% of the property being distributed to AB and 63.75% of the property being distributed to HFD.
[13] The order provided that the matrimonial home is to be sold by auction within two months and the proceeds of sale divided between the parties according to a calculation set out in the order. As a result of the consent order made in the Federal Magistrates Court, it will not be possible for HFD to return to live with his wife and family in the matrimonial home.
[14] AB had asked the tribunal in November 2010 to review the appointment of the guardian and the appointment of the administrator for her husband before the expiry of the terms of those appointments. The tribunal has promulgated a practice direction in the following terms:
4. A review of an appointment of a guardian and/or an administrator made by the Tribunal will be conducted at the end of the period of the appointment as ordered by the Tribunal except in cases where:
(i) New and relevant information has become available since the hearing; or
(ii) A relevant change in circumstances has occurred since the hearing; or
(iii) Relevant information that was not presented to the Tribunal at the hearing has become available;
And in accordance with s.31 Guardianship and Administration Act 2000:
(iv) The current appointee is no longer competent; or
(v) another person is more appropriate for appointment.
5. The Tribunal may hear and dismiss on the papers an application requesting a review of appointment of a guardian and/or administrator which the Tribunal determines does not disclose the information required in paragraph 4 of this practice direction.
[15] AB did not provide new and relevant information about the circumstances of her husband. The information relied on in her review application was essentially the same in nature as the information that had been before the tribunal in October 2009. She had not provided evidence of any relevant change in circumstances in support of her review application. She was seeking the same or similar outcomes as she had unsuccessfully sought in 2009 based on the same or similar information.
[16] In addition she had not provided any evidence that she would be more appropriate than the Adult Guardian and The Public Trustee of Queensland as a decision-maker for her husband. She had been involved in court proceedings against her husband at the time she lodged the review application and those proceedings were finalised in March 2011 with orders dividing the matrimonial property between them. Steps still have to be taken to implement the court orders and until the terms of the consent orders are fully implemented, it would be inappropriate for AB to be appointed as a decision-maker for her husband as there is an inherent conflict of interest in their respective legal positions.
[17] Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 gives the tribunal power to bring a proceeding to an early end if the tribunal considers that an application is frivolous, vexatious or misconceived or is lacking in substance or is otherwise an abuse of process.
[18] The tribunal concludes that the application lodged by AB should be brought to an early end in view of her failure to provide information to satisfy the requirements of Practice Direction 8 of 2010. Without that information the application cannot proceed to a hearing for determination on its merits.
[19] The tribunal considers that under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 the application for review of the appointments of the guardian and the administrator for HFD must be dismissed.
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