IZ v JC, JB, JA

[2009] NSWADTAP 4

Appeal Panel - External

CITATION:

IZ v JC, JB, JA [2009] NSWADTAP 4

PARTIES:

APPELLANT
IZ

1ST RESPONDENT
JC

2ND RESPONDENT
JB

3RD RESPONDENT
JA

FILE NUMBER:

088015

HEARING DATES:

9 December 2008

SUBMISSIONS CLOSED:

9 December 2008

 
DATE OF DECISION: 

23 January 2009

BEFORE:

Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Field B - Non-Judicial Member

CATCHWORDS:

Procedural fairness, application of section 14 and section 4 of Guardianship Act to requests for review of guardianship orders under section 25(2)(a)

DECISION UNDER APPEAL:

Guardianship Tribunal Order: 2008/6079

FILE NUMBER UNDER APPEAL:

C/33754

DATE OF DECISION UNDER APPEAL:

09/24/2008

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED:

Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Kioa v West (1985) 159 CLR 550
J v Lieschke (1987) 69 ALR 647
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
Bakewell v MacPherson (unreported), SA Supreme Court (full Ct), 25 September 1992
IF v IG & Ors [2004] NSWADTAP 3
LA v Protective Commissioner & Ors [2004] NSWADTAP 39

REPRESENTATION:

APPELLANT
G Brack, agent

1ST RESPONDENT
J Simmonds, solicitor

2ND RESPONDENT
In person

3RD RESPONDENT
In person

ORDERS:

The decision made by the Guardianship Tribunal on 24 September 2008 in relation to IZ is affirmed.

Introduction

1 IZ is an 89 year old woman who was living in a nursing home in Sydney. She is physically disabled as a result of rheumatoid arthritis and uses a wheel chair. Dr Rosenfeld, a geriatrician who examined her in July 2008, expressed the view that mainly because of her physical disability, she “requires full time care, probably at the level of heavy nursing care a number of times a day, as well as other forms of instrumental and personal assistance throughout the day.” IZ has three adult children. The Guardianship Tribunal has appointed her two sons, JB and JC, as joint guardians and given them power to decide where IZ should live. Prior to moving to the nursing home in December 2006, IZ was living with her daughter, JA. She has expressed a wish to return home. According to Dr Rosenfeld, she “showed little or no insight into her physical needs and the reasons she was at the nursing home.” There is an ongoing dispute between IZ’s adult sons, JB and JC, and her adult daughter, JA, about where IZ should live.

2 On Sunday 21 September 2008, the daughter failed to return IZ to the nursing home after taking her out for a visit. At approximately 8 pm that evening someone from the nursing home rang JC to let him know that IZ had not returned. The following day JC contacted the Guardianship Tribunal requesting an urgent review of the guardianship order with a view to adding…