NZH - [2020] NSWCATGD 30

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NZH [2020] NSWCATGD 30
Hearing dates: 23 January 2020
Date of orders: 23 January 2020
Decision date: 23 January 2020
Jurisdiction: Guardianship Division
Before: J C Simpson, Senior Member (Legal)
Decision:
The Financial Management order for NZH made on 23 September 2019 has been reviewed. The order now is as follows:
1. The estate of NZH is subject to management under the NSW Trustee and Guardian and Guardian Act 2009 (NSW).
2. The management of the estate of NZH is committed to the NSW Trustee and Guardian and Guardian.
3. This order be reviewed by the Tribunal within one year.
4. The following specified part of the estate is excluded from this financial management order:
$100,000 and all Centrelink entitlements.

Catchwords:
FINANCIAL MANAGEMENT – review of financial management order – end of term review of financial management order – whether subject person is incapable of managing their own affairs – history of mental illness – subject person currently under community treatment order – history of problem gambling – subject person remains at undue risk of dissipating their assets – subject person incapable of managing their own affairs – best interests – whether it is in the best interests of the subject person that the financial management order be revoked - s 4 Principles – balancing freedom to live a normal life in the community and be self-reliant with potential risk of exploitation – financial management order made – NSW Trustee and Guardian appointed – order excluding $100,000.00 and Centrelink entitlements.

Legislation Cited:
Guardianship Act 1987 (NSW), s 4

Cases Cited:
P v NSW Trustee and Guardian and Guardian [2015] NSWSC 579
Re X [2016] NSWSC 275

Texts Cited:
Nil

Category: Principal judgment
Parties:
013: Review of Reviewable Financial Management Order
NZH (the person)
NSW Trustee and Guardian and Guardian (appointed financial manager
Representation: P Beaumont, Solicitor for NZH

File Number(s): NCAT 2011/00419649
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

Background

NZH is a 57-year-old woman with a history of mental illness who now lives in her home unit at South Sydney.
Since 2011, NZH’s financial affairs have been under the management of the NSW Trustee and Guardian. For most of that time, her Centrelink benefits were excluded from management.
NZH has made multiple requests for the financial management order to be revoked but none of those has been successful.
The most recent review of the order occurred in March 2019 on the application of Ms Z, mental health case manager. The Tribunal confirmed the order and reversed the exclusion of the Centrelink benefits but also decided that the order should be reviewed again in six months.
The further review was postponed until the current hearing.
I could revoke the financial management order if I…

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 NZH

Details

AGLC: NZH [2020] NSWCATGD 30
Case: [2020] NSWCATGD 30
Decision Date: 23 January 2020

CaseChat Overview and Summary

The review of a financial management order for an individual, referred to as NZH, was considered by the NCAT. The subject person has a history of mental illness and is currently under a community treatment order. Additionally, the subject person has a history of problem gambling and remains at risk of dissipating their assets. The primary legal issue was whether it is in the best interests of the subject person that the financial management order be revoked. The court needed to balance the subject person's freedom to live a normal life in the community and be self-reliant against the potential risk of exploitation.

The court found that the subject person remains incapable of managing their own affairs. The subject person's history of mental illness and problem gambling, coupled with their current treatment order, indicated an ongoing risk of dissipating their assets. The court considered the principles outlined in s 4, which include balancing the subject person's freedom with the potential risk of exploitation. The court concluded that it was not in the best interests of the subject person to revoke the financial management order. Therefore, the financial management order was renewed, with the NSW Trustee and Guardian appointed to manage the estate. The order excludes $100,000 and all Centrelink entitlements.

The orders of the Tribunal reflect the findings and considerations of the court. The financial management order remains in place, with specific exclusions to provide some level of autonomy to the subject person. The order will be reviewed by the Tribunal within one year to ensure that the subject person's circumstances have not changed in a manner that would warrant a different outcome.

Orders

Orders of the court

The Financial Management order for NZH made on 23 September 2019 has been reviewed. The order now is as follows:

1. The estate of NZH is subject to management under the NSW Trustee and Guardian and Guardian Act 2009 (NSW).

2. The management of the estate of NZH is committed to the NSW Trustee and Guardian and Guardian.

3. This order be reviewed by the Tribunal within one year.

4. The following specified part of the estate is excluded from this financial management order:

$100,000 and all Centrelink entitlements.

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

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Medium Neutral Citation:	NZH [2020] NSWCATGD 30
Hearing dates:	23 January 2020
Date of orders:	23 January 2020
Decision date:	23 January 2020
Jurisdiction:	Guardianship Division
Before:	J C Simpson, Senior Member (Legal)
Decision:	The Financial Management order for NZH made on 23 September 2019 has been reviewed. The order now is as follows: 1. The estate of NZH is subject to management under the NSW Trustee and Guardian and Guardian Act 2009 (NSW). 2. The management of the estate of NZH is committed to the NSW Trustee and Guardian and Guardian. 3. This order be reviewed by the Tribunal within one year. 4. The following specified part of the estate is excluded from this financial management order: $100,000 and all Centrelink entitlements.
Catchwords:	FINANCIAL MANAGEMENT – review of financial management order – end of term review of financial management order – whether subject person is incapable of managing their own affairs – history of mental illness – subject person currently under community treatment order – history of problem gambling – subject person remains at undue risk of dissipating their assets – subject person incapable of managing their own affairs – best interests – whether it is in the best interests of the subject person that the financial management order be revoked - s 4 Principles – balancing freedom to live a normal life in the community and be self-reliant with potential risk of exploitation – financial management order made – NSW Trustee and Guardian appointed – order excluding $100,000.00 and Centrelink entitlements.
Legislation Cited:	Guardianship Act 1987 (NSW), s 4
Cases Cited:	P v NSW Trustee and Guardian and Guardian [2015] NSWSC 579 Re X [2016] NSWSC 275
Texts Cited:	Nil
Category:	Principal judgment
Parties:	013: Review of Reviewable Financial Management Order NZH (the person) NSW Trustee and Guardian and Guardian (appointed financial manager
Representation:	P Beaumont, Solicitor for NZH
File Number(s):	NCAT 2011/00419649
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.