MQH - [2018] NSWCATGD 11

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MQH [2018] NSWCATGD 11
Hearing dates: 8 March 2018
Date of orders: 08 March 2018
Decision date: 08 March 2018
Jurisdiction: Guardianship Division
Before: J C Simpson, Senior Member (Legal)
Dr H Creasey AM, Senior Member (Professional)
F N Given, General Member (Community)
Decision:
The application for a guardianship order is dismissed after hearing.

Catchwords: GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – family member unwilling to sign service agreements – disability service provider applying for Public Guardian to be appointed to sign service agreements – need for an order – services able to be provided without order – application dismissed
Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 14(2)
Cases Cited: IF v IG & Others [2004] NSWADTAP 3
Texts Cited: NDIS, Provider Toolkit Module 3: Terms of Business (30 March 2017)
Office of the Public Advocate Victoria, Guide to NDIS Decision-making (January 2018)
Category: Principal judgment
Parties:
006: Guardianship Application
Ms MQH (the person)
Ms DZB (applicant)
Public Guardian
Representation: Nil

File Number(s): NCAT 2004/00262880
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

Background

Ms MQH is a 33-year-old woman with intellectual disability who lives in a group home run by disability service provider at Northwest Sydney. The disability service provider was keen for service agreements to be signed on behalf of Ms MQH but her father, Mr XAH, had not been willing to sign these agreements. Ms DZB, group home manager, applied for a guardianship order.
There have been a number of previous guardianship orders for Ms MQH, first appointing her brother, Mr BYH, and then appointing her father, Mr XAH. Guardianship lapsed in 2015.

What we had to decide

We had to decide:

Does Ms MQH have a disability which prevents her from being able to make some important life decisions?

Should we make a guardianship order and if so, what order should we make?

When deciding whether to make a guardianship order, we needed to take account of all relevant factors, including those listed in s 14(2) of the Guardianship Act 1987 (NSW). These are about the views of Ms MQH and any spouse and unpaid carer, preserving family relationships, preserving cultural and linguistic environments, and the practicability of services being provided without a guardianship order. We could be guided by the principles in s 4 of the Guardianship Act which cover some of the same issues as s 14(2) of that Act but also emphasise minimum intrusion on a person’s freedom, encouragement of self-reliance and a normal life in the community, protection from neglect, abuse and exploitation, and the person’s interests being paramount. In the end, we had a broad discretion whether to make a guardianship order. (IF v IG & Others [2004] NSWADTAP…

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 MQH

Details

AGLC: MQH [2018] NSWCATGD 11
Case: [2018] NSWCATGD 11
Decision Date: 08 March 2018

CaseChat Overview and Summary

The case before the court involved an application for a guardianship order concerning an individual under the National Disability Insurance Scheme (NDIS). The applicant, a disability service provider, sought the appointment of the Public Guardian to sign necessary service agreements due to a family member's refusal to do so. This refusal raised concerns about the provision of essential services to the individual, who requires ongoing support. The court was tasked with determining whether an order was necessary and whether the services could be provided without the appointment of a guardian.

The primary legal issues revolved around the necessity of a guardianship order in the circumstances presented. The court had to consider whether the services could indeed be provided without the appointment of a Public Guardian, given the family member's refusal to sign the necessary agreements. Additionally, the court assessed the potential impact on the individual's well-being and the applicability of the NDIS provisions in this context.

In reaching its decision, the court examined the evidence provided by the applicant and concluded that the services in question could be effectively delivered without the need for a guardianship order. The court found that the services could be managed through alternative means, and therefore, the appointment of a Public Guardian was not necessary. Consequently, the court dismissed the application for a guardianship order, noting that the individual's needs could be met without such intervention.

Orders

Orders of the court

The application for a guardianship order is dismissed after hearing.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	MQH [2018] NSWCATGD 11
Hearing dates:	8 March 2018
Date of orders:	08 March 2018
Decision date:	08 March 2018
Jurisdiction:	Guardianship Division
Before:	J C Simpson, Senior Member (Legal) Dr H Creasey AM, Senior Member (Professional) F N Given, General Member (Community)
Decision:	The application for a guardianship order is dismissed after hearing.
Catchwords:	GUARDIANSHIP – application for guardianship order – National Disability Insurance Scheme – family member unwilling to sign service agreements – disability service provider applying for Public Guardian to be appointed to sign service agreements – need for an order – services able to be provided without order – application dismissed
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 14(2)
Cases Cited:	IF v IG & Others [2004] NSWADTAP 3
Texts Cited:	NDIS, Provider Toolkit Module 3: Terms of Business (30 March 2017) Office of the Public Advocate Victoria, Guide to NDIS Decision-making (January 2018)
Category:	Principal judgment
Parties:	006: Guardianship Application Ms MQH (the person) Ms DZB (applicant) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2004/00262880
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)).