LXN (No 2) - [2024] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: LXN (No 2) [2024] NSWCATGD 21
Hearing dates: 22 November 2024
Date of orders: 22 November 2024
Decision date: 22 November 2024
Jurisdiction: Guardianship Division
Before: R H Booby, Principal Member
Decision:
The guardianship order for LXN made on 6 August 2024 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of nine months from 22 November 2024.
3. This is a limited guardianship order giving the guardian(s) custody of LXN to the extent necessary to carry out the functions below.
FUNCTIONS:
4. 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) Sexual Assault Assessment
To make decisions on behalf of LXN in relation to any sexual assault assessment conducted involving her, including decisions about any physical examinations and the taking of any specimens or samples such as blood samples and about conducting any tests for the presence of blood, semen or other substances.
(f) Release of Sexual Assault Investigation Kit
To make decisions on behalf of LXN in relation to the release to NSW Police or other appropriate authority of any Sexual Assault Investigation Kit concerning LXN, including any Forensic Protocol and any specimens, samples or test results relating to a sexual assault assessment.
(g) Services
To make decisions about services to be provided to LXN.
(h) Legal services
To make decisions for LXN in relation to access to legal services.
(i) Travel
To make decisions about whether or not LXN can travel to any place outside Australia.
(j) 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.
(k) Restrictive Practices
To give or withhold consent to restrictive practices used to influence LXN’s behaviour.
(l) Other Function
1. Visa - To make decisions about LXN’s visa status.
2. To make decisions about the use of an electronic tracking device to assist to locate LXN when necessary.
CONDITION:
5. 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.

Catchwords:
GUARDIANSHIP – requested review of guardianship order – subject person with an intellectual disability – subject person citizen…

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 (No 2)

Details

AGLC: LXN (No 2) [2024] NSWCATGD 21
Case: [2024] NSWCATGD 21
Decision Date: 22 November 2024

CaseChat Overview and Summary

LXN, an intellectually disabled person and a citizen of another country, resides at a safe house and is a holder of a temporary visa. Following allegations of trafficking, exploitation, and abuse, an application was made to review the guardianship order for LXN, seeking to augment the decision-making functions of the Public Guardian. The primary issues for the court to determine were whether to include certain decision-making functions related to forensic testing and restrictions on LXN's freedom of movement, as well as whether certain practices, such as the use of GPS tracking and a locked timed medication dispenser, should be considered restrictive practices.

The court found that while the guardian should be granted broad authority to consent to restrictive practices of a generic nature, the specific functions related to consent for forensic testing following an alleged sexual assault and controls on LXN's access to her environment should be included. The court also ruled that the use of a GPS tracking device and a locked timed medication dispenser did not constitute restrictive practices. Consequently, the guardianship order was varied to include these functions.

The final orders reflect the court's decisions, appointing the Public Guardian as LXN's guardian and granting them specific functions, such as making decisions about LXN's residence, health care, and visa status, as well as consenting to restrictive practices. The order also includes a condition that the guardian must take reasonable steps to ensure LXN understands the issues and consider her views before making significant decisions.

Orders

Orders of the court

The guardianship order for LXN made on 6 August 2024 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of nine months from 22 November 2024.

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

FUNCTIONS:

4. 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.

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) Sexual Assault Assessment

To make decisions on behalf of LXN in relation to any sexual assault assessment conducted involving her, including decisions about any physical examinations and the taking of any specimens or samples such as blood samples and about conducting any tests for the presence of blood, semen or other substances.

(f) Release of Sexual Assault Investigation Kit

To make decisions on behalf of LXN in relation to the release to NSW Police or other appropriate authority of any Sexual Assault Investigation Kit concerning LXN, including any Forensic Protocol and any specimens, samples or test results relating to a sexual assault assessment.

(g) Services

To make decisions about services to be provided to LXN.

(h) Legal services

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

(i) Travel

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

(j) 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.

(k) Restrictive Practices

To give or withhold consent to restrictive practices used to influence LXN’s behaviour.

(l) Other Function

1. Visa - To make decisions about LXN’s visa status.

2. To make decisions about the use of an electronic tracking device to assist to locate LXN when necessary.

CONDITION:

5. 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.

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 (No 2) [2024] NSWCATGD 21
Hearing dates:	22 November 2024
Date of orders:	22 November 2024
Decision date:	22 November 2024
Jurisdiction:	Guardianship Division
Before:	R H Booby, Principal Member
Decision:	The guardianship order for LXN made on 6 August 2024 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of nine months from 22 November 2024. 3. This is a limited guardianship order giving the guardian(s) custody of LXN to the extent necessary to carry out the functions below. FUNCTIONS: 4. 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) Sexual Assault Assessment To make decisions on behalf of LXN in relation to any sexual assault assessment conducted involving her, including decisions about any physical examinations and the taking of any specimens or samples such as blood samples and about conducting any tests for the presence of blood, semen or other substances. (f) Release of Sexual Assault Investigation Kit To make decisions on behalf of LXN in relation to the release to NSW Police or other appropriate authority of any Sexual Assault Investigation Kit concerning LXN, including any Forensic Protocol and any specimens, samples or test results relating to a sexual assault assessment. (g) Services To make decisions about services to be provided to LXN. (h) Legal services To make decisions for LXN in relation to access to legal services. (i) Travel To make decisions about whether or not LXN can travel to any place outside Australia. (j) 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. (k) Restrictive Practices To give or withhold consent to restrictive practices used to influence LXN’s behaviour. (l) Other Function 1. Visa - To make decisions about LXN’s visa status. 2. To make decisions about the use of an electronic tracking device to assist to locate LXN when necessary. CONDITION: 5. 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.
Catchwords:	GUARDIANSHIP – requested review of guardianship order – subject person with an intellectual disability – subject person citizen…