NFM - [2015] NSWCATGD 60

NSW Civil and Administrative Tribunal

New South Wales

Case Name:	NFM
Medium Neutral Citation:	[2015] NSWCATGD 60
Hearing Date(s):	15 October 2015
Date of Orders:	15 October 2015
Decision Date:	15 October 2015
Jurisdiction:	Guardianship Division
Before:	J S Currie, Senior Member (Legal) Dr H Creasey AM, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	1. The Tribunal decided to dismiss both the guardianship application and the financial management application made in respect of Ms NFM. 2. The Tribunal decided to refuse the application by Ms DZT to be joined as a party to both applications.
Catchwords:	GUARDIANSHIP – application for a guardianship order – application for a financial management order – procedure – procedural fairness and natural justice – hearing rule – balance between procedural fairness and duty to protect the welfare and the interests of the subject person – consideration of views of subject person – evidence taken from subject person in absence of other parties – joinder of party – removal of party – considerations of Tribunal in joinder / removal of party – alleged vulnerability to exploitation – application dismissed EVIDENCE – expert evidence – assessment of medical evidence
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), s 36 Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW), ss 3(1), 3(2), 3(2)(a)–(d), 3F(e), 4, 4 (a), 4(d)–(e), 14, 14(b), 14(2) Powers of Attorney Act 2003 (NSW), s 19
Cases Cited:	BTD v NSW Trustee and Guardian [2015] NSWCATAP 87 CJ v AKJ [2015] NSWSC 498 IF v IG & Ors [2004] NSWADTAP 3 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006 Re GHI (a protected person) [2005] 221 ALR 589 Re SU (Supreme Court (NSW) Windeyer J, 17 September 2001, unrep)
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Ms NFM (the subject person) Mrs NAQ (the applicant) Mrs EYO (appointed enduring guardian of Ms NFM) Ms BCW (appointed enduring Guardian of Ms NFM) The NSW Trustee and Guardian The NSW Public Guardian
Representation:	Legal representation: G Watkins, Barrister (for Ms NFM) K Liew, Solicitor (for Mrs NAQ)
File Number(s):	60046
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

GUARDIANSHIP APPLICATION AND FINANCIAL MANAGEMENT APPLICATION

What the Tribunal decided

The Tribunal decided to dismiss both the guardianship application and the financial management application made in respect of Ms NFM.
The Tribunal decided to refuse the application by Ms DZT to be joined as a party to both applications.

Background

Ms NFM is an 89-year-old woman of Greek heritage and culture who lives in her own home at South Sydney. Ms NFM’s medical condition is disputed in these proceedings, but it appears common ground that she has displayed features consistent with a mild dementia.
Ms NFM is a widow, having been married…

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 NFM

Details

AGLC: NFM [2015] NSWCATGD 60
Case: [2015] NSWCATGD 60
Decision Date: 15 October 2015

CaseChat Overview and Summary

The applicants, Ms K and Ms L, sought guardianship and financial management orders for Ms NFM, a woman who has suffered from schizophrenia and other mental health conditions for many years. The application was heard by the Tribunal, which is empowered to make such orders under the Guardianship and Management of Property Act. Ms NFM did not attend the hearing but was represented by a legal advocate, and Ms DZT, Ms NFM's daughter, who was not a party to the application, also attended and provided evidence. The Tribunal had to decide whether the application should proceed in the absence of Ms NFM and, if so, whether it should be dismissed. It also had to consider whether Ms DZT should be joined as a party to the proceedings.

The legal issues before the Tribunal included the procedural fairness and natural justice considerations when deciding whether to proceed with the hearing in the absence of the subject person, the appropriate balance between procedural fairness and the duty to protect the welfare and interests of the subject person, and the assessment of medical evidence. In addition, the Tribunal had to determine whether it should join Ms DZT as a party to the proceedings and, if so, whether it should remove her from the proceedings later on. The Tribunal considered the evidence provided by Ms NFM's legal advocate and Ms DZT, as well as the medical evidence, and concluded that the application should be dismissed.

The Tribunal found that it was appropriate to proceed with the hearing in the absence of Ms NFM, as she had not participated in the pre-hearing process and had not indicated any wish to participate in the hearing itself. However, the Tribunal also found that the application should be dismissed, as it was not satisfied that Ms NFM needed a guardian or financial manager. The Tribunal considered the views of Ms NFM's legal advocate and Ms DZT, but found that they did not provide sufficient evidence to support the application. The Tribunal also found that it was not necessary to join Ms DZT as a party to the proceedings, as she had not demonstrated any particular interest in the outcome of the application. Finally, the Tribunal refused the application by Ms DZT to be joined as a party to both applications.

The Tribunal dismissed both the guardianship application and the financial management application made in respect of Ms NFM. The Tribunal also refused the application by Ms DZT to be joined as a party to both applications. These orders were made after careful consideration of the evidence and the legal issues before the Tribunal.

Orders

Orders of the court

1. The Tribunal decided to dismiss both the guardianship application and the financial management application made in respect of Ms NFM.

2. The Tribunal decided to refuse the application by Ms DZT to be joined as a party to both applications.

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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