MKF - [2022] NSWCATGD 25

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MKF [2022] NSWCATGD 25
Hearing dates: 4 March 2022
Date of orders: 4 March 2022
Decision date: 04 March 2022
Jurisdiction: Guardianship Division
Before: B L Adamovich, Senior Member (Legal)
Dr A M Berry, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
The application for the appointment of a guardian is dismissed after hearing.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – restrictive practices function – subject person diagnosed with severe autism spectrum disorder, epilepsy and intellectual disability – subject person is a participant in the NDIS – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 – whether the use of a seatbelt buckle guard is a form of mechanical restraint – safety device – not for purpose of influencing the subject person’s behaviour – no need for restrictive practices function – subject person with informal supports – no decisions that need to be made by a guardian – no order made - application dismissed

Legislation Cited:
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2)
National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6

Cases Cited:
HZC [2019] NSWCATGD 8
IF v IG [2004] NSWADTAP 3
P v NSW Trustee and Guardian [2015] NSWSC 579

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Guardianship Application
MKF (the person)
GSF (applicant)
PKF (carer)
Public Guardian
Representation: Nil.

File Number(s): NCAT 2022/00008229
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP APPLICATION

These are the reasons for the decision of the Tribunal as set out above.
In all matters before the Tribunal the welfare and interests of the subject person are paramount.

Background

MKF is a 19-year-old man of Filipino background who lives with his parents, Mr Z and PKF, and his sister GJF in the family home at West Sydney.
MKF is diagnosed with severe autism spectrum disorder, epilepsy and intellectual disability. He is primarily non-verbal.
On 10 January 2022 the Tribunal received an application for the appointment of a guardian for MKF from his sister, GJF.

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.]
As the hearing was held during the COVID-19 pandemic it was conducted by videoconference and telephone.

What did the Tribunal have to decide?

The questions to be considered by the Tribunal are:

Is MKF someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

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

Who should be the guardian?

How…

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 MKF

Details

AGLC: MKF [2022] NSWCATGD 25
Case: [2022] NSWCATGD 25
Decision Date: 04 March 2022

CaseChat Overview and Summary

In the matter of MKF, the subject person, diagnosed with severe autism spectrum disorder, epilepsy, and intellectual disability, was the subject of an application for a guardianship order. The application was heard by the Court and required the court to determine whether a guardianship order should be made, particularly in light of the subject person's participation in the NDIS and the applicability of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018. The court had to consider whether the use of a seatbelt buckle guard constituted a form of mechanical restraint and if it was for the purpose of influencing the subject person’s behaviour. Additionally, the court needed to assess if the restrictive practices function was required in this case and whether the subject person required a guardian given the presence of informal supports and the absence of decisions needing to be made by a guardian.

The court examined the evidence and submissions presented and concluded that the use of the seatbelt buckle guard was not a form of mechanical restraint but a safety device. The court found that there was no need for the restrictive practices function as the device was not intended to influence the subject person’s behaviour. Furthermore, the court noted that the subject person had informal supports and there were no decisions that needed to be made by a guardian. Therefore, the court determined that there was no justification for the appointment of a guardian.

In light of the findings, the court dismissed the application for the appointment of a guardian. The court found that there were no circumstances that warranted the making of a guardianship order, given the subject person's existing supports and the nature of the measures in place. The court's decision was based on the specific circumstances of the case, and the application was dismissed after hearing.

Orders

Orders of the court

The application for the appointment of a guardian is dismissed after hearing.

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:	MKF [2022] NSWCATGD 25
Hearing dates:	4 March 2022
Date of orders:	4 March 2022
Decision date:	04 March 2022
Jurisdiction:	Guardianship Division
Before:	B L Adamovich, Senior Member (Legal) Dr A M Berry, Senior Member (Professional) L Porter, General Member (Community)
Decision:	The application for the appointment of a guardian is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – restrictive practices function – subject person diagnosed with severe autism spectrum disorder, epilepsy and intellectual disability – subject person is a participant in the NDIS – National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 – whether the use of a seatbelt buckle guard is a form of mechanical restraint – safety device – not for purpose of influencing the subject person’s behaviour – no need for restrictive practices function – subject person with informal supports – no decisions that need to be made by a guardian – no order made - application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 14, 14(2) National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth), r 6
Cases Cited:	HZC [2019] NSWCATGD 8 IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Guardianship Application MKF (the person) GSF (applicant) PKF (carer) Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2022/00008229
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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.