Maria (a pseudonym) (No 2) - [2025] NSWCATGD 3

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Maria (a pseudonym) (No 2) [2025] NSWCATGD 3
Hearing dates: 29 April 2025
Date of orders: 29 April 2025
Decision date: 29 April 2025
Jurisdiction: Guardianship Division
Before: S L Handebo, Principal Member
Decision:
The guardianship order for Maria made on 25 May 2023 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 six months from 29 April 2025.
3. This is a limited guardianship order giving the guardian(s) custody of Maria to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Access
To decide what access Maria has to others and the conditions of access.
b) Advocacy
To advocate generally for Maria.
c) Accommodation
To decide where Maria may reside.
d) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take Maria to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
e) Health care
To decide what health care Maria may receive.
f) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where Maria is not capable of giving a valid consent.
g) Services
To make decisions about services to be provided to Maria.
h) Legal services
To make decisions for Maria in relation to access to legal services.
i) Travel
To make decisions about whether or not Maria can travel to any place outside Australia.
j) Passport
To make a decision about whether or not the passport of Maria 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 Maria’s behaviour.
CONDITIONS:
5. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring Maria to an understanding of the issues and to obtain and consider her views before making significant decisions.
b) Aged Care Restrictive Practices Condition
The guardian(s) may only consent to the use of restrictive practices to influence Maria’s behaviour:
(i) as a last resort to prevent Maria harming herself or others; and
(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Maria or other persons;
(iii) after consideration of the likely impact of the use of the restrictive practice on Maria; and
(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Maria’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Maria’s circumstances.

Catchwords:
GUARDIANSHIP – review of…

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 Maria (a pseudonym) (No 2)

Details

AGLC: Maria (a pseudonym) (No 2) [2025] NSWCATGD 3
Case: [2025] NSWCATGD 3
Decision Date: 29 April 2025

CaseChat Overview and Summary

In the case of Maria (a pseudonym) (No 2), the subject of the dispute was a review of a guardianship order made for Maria on 25 May 2023. The matter was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The primary concern was whether Maria remained a person in need of a guardian, and if so, who should be appointed as her guardian, what functions should be assigned, and how long any further order should last. Additionally, the court considered the utility of making a further order given that both Maria and her appointed guardian were overseas.

The legal issues included the standing of the New South Wales Trustee to bring the application, the adequacy of service of the review application, the participation of Maria and her appointed guardian in the hearing, and the jurisdiction of the Tribunal where both were overseas. The court found that personal service was not necessary, and there were no procedural fairness issues as notice of the hearing was provided. The jurisdiction of the Tribunal was upheld as the extra-territorial operation of its jurisdiction was warranted.

After considering the evidence, the NCAT reviewed the guardianship order for Maria. The Public Guardian was appointed as her guardian for a period of six months from 29 April 2025. The guardianship order is limited, providing the guardian with specific functions such as deciding on Maria's access to others, advocating for her, deciding her place of residence, authorizing others to take Maria to an approved place and keep her there, making health care decisions, giving or withholding consent to restrictive practices, and making decisions about her travel and passport. The guardian is also required to consider Maria's views before making significant decisions and to adhere to specific conditions when using restrictive practices to influence Maria’s behaviour.

No specific final orders were made as the case details did not provide such information. However, the above changes to the guardianship order reflect the court's decision.

Orders

Orders of the court

The guardianship order for Maria made on 25 May 2023 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 six months from 29 April 2025.

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

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access Maria has to others and the conditions of access.

b) Advocacy

To advocate generally for Maria.

c) Accommodation

To decide where Maria may reside.

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

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

ii) keep her at that place.

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

e) Health care

To decide what health care Maria may receive.

f) Medical/Dental consent

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

g) Services

To make decisions about services to be provided to Maria.

h) Legal services

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

i) Travel

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

j) Passport

To make a decision about whether or not the passport of Maria 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 Maria’s behaviour.

CONDITIONS:

5. The conditions of this order are:

a) Standard Condition

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

b) Aged Care Restrictive Practices Condition

The guardian(s) may only consent to the use of restrictive practices to influence Maria’s behaviour:

(i) as a last resort to prevent Maria harming herself or others; and

(ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Maria or other persons;

(iii) after consideration of the likely impact of the use of the restrictive practice on Maria; and

(iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Maria’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Maria’s circumstances.

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:	Maria (a pseudonym) (No 2) [2025] NSWCATGD 3
Hearing dates:	29 April 2025
Date of orders:	29 April 2025
Decision date:	29 April 2025
Jurisdiction:	Guardianship Division
Before:	S L Handebo, Principal Member
Decision:	The guardianship order for Maria made on 25 May 2023 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 six months from 29 April 2025. 3. This is a limited guardianship order giving the guardian(s) custody of Maria to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access Maria has to others and the conditions of access. b) Advocacy To advocate generally for Maria. c) Accommodation To decide where Maria may reside. d) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take Maria to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. e) Health care To decide what health care Maria may receive. f) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where Maria is not capable of giving a valid consent. g) Services To make decisions about services to be provided to Maria. h) Legal services To make decisions for Maria in relation to access to legal services. i) Travel To make decisions about whether or not Maria can travel to any place outside Australia. j) Passport To make a decision about whether or not the passport of Maria 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 Maria’s behaviour. CONDITIONS: 5. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring Maria to an understanding of the issues and to obtain and consider her views before making significant decisions. b) Aged Care Restrictive Practices Condition The guardian(s) may only consent to the use of restrictive practices to influence Maria’s behaviour: (i) as a last resort to prevent Maria harming herself or others; and (ii) where the restrictive practice is used in the least restrictive form, and for the shortest time necessary to prevent harm to Maria or other persons; (iii) after consideration of the likely impact of the use of the restrictive practice on Maria; and (iv) in accordance with a behaviour support plan devised in accordance with the Quality of Care Principles 2014 (Cth), after consultation with a health practitioner with expertise relevant to Maria’s behaviours of concern and which is reviewed regularly and as soon as practicable after any change in Maria’s circumstances.
Catchwords:	GUARDIANSHIP – review of…