LXN - [2024] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: LXN [2024] NSWCATGD 13
Hearing dates: 6 August 2024
Date of orders: 6 August 2024
Decision date: 06 August 2024
Jurisdiction: Guardianship Division
Before: J D’Arcy, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for LXN.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of 12 months from 6 August 2024.
4. This is a limited guardianship order giving the guardian custody of LXN to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Accommodation
To decide where LXN may reside.
b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take LXN to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
c) Health care
To decide what health care LXN may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where LXN is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to LXN.
f) Legal services
To make decisions for LXN in relation to access to legal services.
g) Travel
To make decisions about whether or not LXN can travel to any place outside Australia.
h) Passport
To make a decision about whether or not the passport of LXN should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.
i) Visa
To make a decision about LXN’s visa status.
CONDITION:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring LXN to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management
1. The estate of LXN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of LXN is committed to the NSW Trustee and Guardian.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with an intellectual disability – subject person is a citizen of another country – holder of a temporary visa – subject person resides at a safe house – reports of trafficking, exploitation and abuse – no access to support services – need for decisions to be made about the subject person’s safe return to Cambodia – visa, travel and passport functions – no private person suitable to be appointed – Public Guardian appointed – order made
FINANCIAL MANAGEMENT – application for a financial management order – subject person with an intellectual disability – incapable of managing financial affairs – best interests are served by the appointment…

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 LXN

Details

AGLC: LXN [2024] NSWCATGD 13
Case: [2024] NSWCATGD 13
Decision Date: 06 August 2024

CaseChat Overview and Summary

LXN, a person with an intellectual disability, is the subject of an application for a guardianship and financial management order in the Supreme Court of New South Wales. LXN is a citizen of another country and resides at a safe house in Australia. The application was made due to concerns about LXN’s welfare, including reports of trafficking, exploitation and abuse, and the lack of access to support services. The court was required to determine whether a guardianship and financial management order should be made and, if so, what terms and conditions should apply.

The court considered whether LXN was incapable of managing her own affairs due to her intellectual disability and whether it was in her best interests for someone else to manage her affairs. The court also considered whether there was a private person suitable to be appointed as guardian or financial manager. Given the circumstances, the court found that no private person was suitable and appointed the Public Guardian as the guardian and the NSW Trustee and Guardian as the financial manager. The court made a guardianship order for a period of 12 months, with specific functions assigned to the guardian, including decisions about LXN’s residence, health care, travel, and visa status.

The court concluded that it was in LXN’s best interests for the Public Guardian to be appointed as her guardian and the NSW Trustee and Guardian to manage her estate. The court made a financial management order under the NSW Trustee and Guardian Act 2009, committing the management of LXN’s estate to the NSW Trustee and Guardian. The orders reflect the court’s determination that LXN requires assistance in making decisions about her welfare and financial affairs due to her intellectual disability and current circumstances.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for LXN.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 6 August 2024.

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

FUNCTIONS:

5. The guardian has the following functions:

a) Accommodation

To decide where LXN may reside.

b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take LXN to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

c) Health care

To decide what health care LXN may receive.

d) Medical/Dental consent

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

e) Services

To make decisions about services to be provided to LXN.

f) Legal services

To make decisions for LXN in relation to access to legal services.

g) Travel

To make decisions about whether or not LXN can travel to any place outside Australia.

h) Passport

To make a decision about whether or not the passport of LXN should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

i) Visa

To make a decision about LXN’s visa status.

CONDITION:

6. The condition of this order is:

a) Standard Condition

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

Financial Management

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

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

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:	LXN [2024] NSWCATGD 13
Hearing dates:	6 August 2024
Date of orders:	6 August 2024
Decision date:	06 August 2024
Jurisdiction:	Guardianship Division
Before:	J D’Arcy, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for LXN. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 6 August 2024. 4. This is a limited guardianship order giving the guardian custody of LXN to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Accommodation To decide where LXN may reside. b) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take LXN to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. c) Health care To decide what health care LXN may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where LXN is not capable of giving a valid consent. e) Services To make decisions about services to be provided to LXN. f) Legal services To make decisions for LXN in relation to access to legal services. g) Travel To make decisions about whether or not LXN can travel to any place outside Australia. h) Passport To make a decision about whether or not the passport of LXN should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel. i) Visa To make a decision about LXN’s visa status. CONDITION: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring LXN to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management 1. The estate of LXN is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of LXN is committed to the NSW Trustee and Guardian.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with an intellectual disability – subject person is a citizen of another country – holder of a temporary visa – subject person resides at a safe house – reports of trafficking, exploitation and abuse – no access to support services – need for decisions to be made about the subject person’s safe return to Cambodia – visa, travel and passport functions – no private person suitable to be appointed – Public Guardian appointed – order made FINANCIAL MANAGEMENT – application for a financial management order – subject person with an intellectual disability – incapable of managing financial affairs – best interests are served by the appointment…