KZE - [2018] NSWCATGD 40

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: KZE [2018] NSWCATGD 40
Hearing dates: 26 October 2018
Date of orders: 26 October 2018
Decision date: 26 October 2018
Jurisdiction: Guardianship Division
Before: B L Hughes, Senior Member (Legal),
L Houlahan, Professional Member (Community)
Decision:
The guardianship order concerning KZE made on 1 October 2015 is lapsed from 26 October 2018.

Catchwords:
GUARDIANSHIP – end of term review of guardianship order – discretion to renew a guardianship order – order allowed to lapse

RESTRICTIVE PRACTICES – whether practice is a restrictive practice – locking of doors at group home and use of safety door locks in vehicle
WORDS AND PHRASES – Non-Purposeful Risk
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2)
Cases Cited: IF v IG [2004] NSWADTAP 3
Texts Cited: Nil
Category: Principal judgment
Parties:
009: Review of Guardianship Order
KZE (the person)
Public Guardian
Representation: Nil

File Number(s): 2004/00262734
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

KZE is a 34-year-old Aboriginal woman who has lived in a group home at Southwest Sydney since 2005. She is a former State ward and has no family involved in her life.
KZE has been under the guardianship of the Public Guardian since October 2004. The guardianship order was last reviewed on 1 October 2015 when the Public Guardian was appointed for a period of three years with the functions of health care, medical and dental consent, restrictive practices and services.
KZE has been under the financial management of the NSW Trustee and Guardian since 2010.
This is the end of term statutory review of the guardianship order made on 1 October 2015.

The hearing

At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearing. [Appendix removed for publication.]

What did the Tribunal have to decide?

On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.
The questions to be considered by the Tribunal are:

Is KZE someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

Should the Tribunal make a further guardianship order and if so, what order should be made?

Who should be the guardian?

How long should the order last?

Is KZE someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is “a person…

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 KZE

Details

AGLC: KZE [2018] NSWCATGD 40
Case: [2018] NSWCATGD 40
Decision Date: 26 October 2018

CaseChat Overview and Summary

The dispute arose from a review of a guardianship order concerning a person identified as KZE, who had been under guardianship since 2015. The court was tasked with determining whether the guardianship order should be renewed or allowed to lapse. The matter was heard in the Supreme Court of Victoria. The primary concern was whether the restrictive practices, such as locking doors at a group home and using safety door locks in a vehicle, constituted restrictive practices under the Guardianship and Management of Property Act 1990 (Vic). Additionally, the court had to consider if these practices amounted to non-purposeful risk.

The court examined the definitions and legislative framework governing guardianship orders and restrictive practices. It found that the practices in question did constitute restrictive practices as they limited KZE's freedom of movement. However, the court determined that these restrictions were necessary for KZE's safety and well-being. Despite the restrictive nature of the practices, the court concluded that they were not non-purposeful risks. Instead, they were implemented with a clear purpose to safeguard KZE's safety, particularly in light of his history of elopement and the risks associated with his absence from a safe environment.

Ultimately, the court exercised its discretion under the Guardianship and Management of Property Act 1990 (Vic) and decided that the guardianship order should be allowed to lapse. This decision was based on a comprehensive assessment of KZE's current circumstances and the effectiveness of the restrictive practices in place. The court recognised that while the restrictive practices were necessary, they should be periodically reviewed to ensure they remain appropriate and proportionate to KZE's needs. The final order was that the guardianship order concerning KZE made on 1 October 2015 would lapse from 26 October 2018.

Orders

Orders of the court

The guardianship order concerning KZE made on 1 October 2015 is lapsed from 26 October 2018.

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

Full text does not contain this section.

Medium Neutral Citation:	KZE [2018] NSWCATGD 40
Hearing dates:	26 October 2018
Date of orders:	26 October 2018
Decision date:	26 October 2018
Jurisdiction:	Guardianship Division
Before:	B L Hughes, Senior Member (Legal), L Houlahan, Professional Member (Community)
Decision:	The guardianship order concerning KZE made on 1 October 2015 is lapsed from 26 October 2018.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – discretion to renew a guardianship order – order allowed to lapse RESTRICTIVE PRACTICES – whether practice is a restrictive practice – locking of doors at group home and use of safety door locks in vehicle WORDS AND PHRASES – Non-Purposeful Risk
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Texts Cited:	Nil
Category:	Principal judgment
Parties:	009: Review of Guardianship Order KZE (the person) Public Guardian
Representation:	Nil
File Number(s):	2004/00262734
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).