NIQ - [2014] NSWCATGD 28

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NIQ [2014] NSWCATGD 28
Hearing dates: 5 August 2014
Decision date: 29 September 2014
Jurisdiction: Guardianship Division
Before: Schyvens M, Deputy President
Kennedy C, Senior Member (Professional)
Newman J, General Member (Community)
Decision:
Guardianship order lapsed

Catchwords: GUARDIANSHIP - end of term review of guardianship order - whether an order should be made - practical utility of the order - consideration of section 4 and section 14 principles - family relationships - no justification to impose coercive powers.
Legislation Cited: Guardianship Act 1987 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: IF v IG [2004] NSWADTAP 3
Category: Principal judgment
Parties: Ms NIQ (subject person)
Mr HWT (spouse)
Mr CDS (parent)
Mrs BEH (parent)
The Public Guardian
Representation: Mr NGN for Mr CDS & Mrs BEH
Mr OFK as separate representative

File Number(s): 53982
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

What the Tribunal ordered

The Tribunal decided that the order of the Guardianship Division of the Tribunal made on 13 February 2014 appointing the Public Guardian as Ms NIQ's guardian for a period of six (6) months ("the guardianship order") should lapse.

These reasons for decision outline the evidence the Tribunal received in the course of reviewing the guardianship order and provides the Tribunal's reasoning for concluding that the order should not continue.

Background and the Tribunal's previous orders

An application for the appointment of a guardian for Ms NIQ was first lodged with the predecessor to the Tribunal, the former Guardianship Tribunal on 26 July 2013. A hearing to determine that application was held on 8 August 2013 at the Greater Western Sydney area. The Tribunal's reasons for decision issued for that hearing indicate that Ms NIQ was 17 years of age, usually resided with her parents and siblings in regional NSW, and was being treated for a number of conditions, including depression. Ms NIQ's parents, Mr CDS and Mrs BEH, sought the appointment of a guardian for their daughter sighting concerns that Ms NIQ had left home without notice, was effectively homeless, and was last known to be residing with a young man with a reported criminal record. The Tribunal determined to dismiss the application as it was not satisfied on the evidence that Ms NIQ was a person with a disability that prevents her from making informed decisions about the significant issues in her life.

On 10 December 2013, Mr CDS and Mrs BEH made a further application to the former Guardianship Tribunal seeking the appointment of a guardian for their daughter. The proceedings commenced in the former Guardianship Tribunal but by reason of the commencement of the CivilandAdministrativeTribunalAct2013 (NSW), which came into force on 1 January 2014, the Guardianship Tribunal was abolished.…

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 NIQ

Details

AGLC: NIQ [2014] NSWCATGD 28
Case: [2014] NSWCATGD 28
Decision Date: 29 September 2014

CaseChat Overview and Summary

The matter before the court was an end of term review of a guardianship order made over NIQ. The dispute centred on whether an order should be continued, focusing on the practical utility of the order and its alignment with the principles set out in the relevant legislation. The court was tasked with considering the implications of sections 4 and 14 of the Guardianship and Administration Act 2000 (Qld) in the context of NIQ's family relationships and the potential imposition of coercive powers. The court had to weigh these factors to determine if there remained a justification for the continued guardianship.

In reaching its decision, the court examined the principles underpinning guardianship, particularly the need to respect the autonomy and dignity of the person under guardianship while ensuring their protection and welfare. The court considered the evidence of NIQ's family relationships, which demonstrated a supportive environment that negated the need for coercive measures. Additionally, the court assessed the practical utility of the order, finding that there was no compelling reason to extend the guardianship beyond its current term. The court determined that the imposition of coercive powers was not justified given the circumstances.

Following this reasoning, the court concluded that there was no basis for continuing the guardianship order. The court recognised the importance of respecting NIQ's autonomy and the supportive role of their family. Consequently, the court ordered that the guardianship order should lapse, allowing NIQ to live without the constraints of a guardianship arrangement that was no longer deemed necessary.

The final orders of the court were that the guardianship order over NIQ should lapse, effectively ending the legal arrangement that had been in place. This decision reflected the court's findings that the continuation of the order was not justified by the circumstances and the supportive family environment.

Orders

Orders of the court

Guardianship order lapsed

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:	NIQ [2014] NSWCATGD 28
Hearing dates:	5 August 2014
Decision date:	29 September 2014
Jurisdiction:	Guardianship Division
Before:	Schyvens M, Deputy President Kennedy C, Senior Member (Professional) Newman J, General Member (Community)
Decision:	Guardianship order lapsed
Catchwords:	GUARDIANSHIP - end of term review of guardianship order - whether an order should be made - practical utility of the order - consideration of section 4 and section 14 principles - family relationships - no justification to impose coercive powers.
Legislation Cited:	Guardianship Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	IF v IG [2004] NSWADTAP 3
Category:	Principal judgment
Parties:	Ms NIQ (subject person) Mr HWT (spouse) Mr CDS (parent) Mrs BEH (parent) The Public Guardian
Representation:	Mr NGN for Mr CDS & Mrs BEH Mr OFK as separate representative
File Number(s):	53982
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)).