OKM - [2023] NSWCATGD 2

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: OKM [2023] NSWCATGD 2
Hearing dates: 10 February 2023
Date of orders: 10 February 2023
Decision date: 10 February 2023
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
Dr J Law, Senior Member (Professional)
D R Sword, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for OKM.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of six weeks from 10 February 2023.
4. This is a limited guardianship order giving the guardian(s) custody of OKM to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access OKM has to others and the conditions of access.
b) Accommodation
To decide where OKM may reside.
c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take OKM to a place approved by the guardian.
ii) keep her at that place.
iii) return her to that place should she leave it.
d) Health care
To decide what health care OKM may receive.
e) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where OKM is not capable of giving a valid consent.
f) Services
To make decisions about services to be provided to OKM.
CONDITIONS:
6. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring OKM to an understanding of the issues and to obtain and consider her views before making significant decisions.
Financial Management
Today’s hearing is adjourned to a day to be confirmed by the registry.

Catchwords:
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with intellectual disability – subject person resides with spouse – evidence of coercive control in the relationship – decisions not currently made in the subject person’s best interests – need for decisions to be made about access, health care, medical and dental consent, and services – accommodation function with power to authorise others – no private person suitable to be appointed – Public Guardian appointed – six week reviewable order made

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 45(1)(a), 45(1)(b)(i)-(ii), cl 5(1) of Sch 6
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4,14, 14(2), 15(3)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
IF v IG [2004] NSWADTAP 3
P v NSW Trustee and Guardian [2015] NSWSC 579
Re B [2011] NSWSC 1075
ZBC v ZBD [2016] NSWCATAP 264

Texts Cited:
None cited.

Category: Principal judgment
Parties:
003: Guardianship Application

OKM (the person)
EZC (applicant)
FBN (carer, spouse)
Public Guardian (proposed guardian)

004: Financial Management Application
OKM (the person)
EZC (applicant)
FBN (carer, spouse)
NSW Trustee and Guardian (proposed financial…

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 OKM

Details

AGLC: OKM [2023] NSWCATGD 2
Case: [2023] NSWCATGD 2
Decision Date: 10 February 2023

CaseChat Overview and Summary

In the matter of OKM, the court was presented with an application for a guardianship order concerning an individual with an intellectual disability. The application was made by a party concerned about the welfare of OKM, who currently resides with her spouse. Evidence presented suggested that OKM's decisions were not being made in her best interests due to coercive control in the relationship. The court had to determine whether a guardianship order should be made, and if so, who should be appointed as the guardian, as well as the scope of the order.

The legal issues before the court were multifaceted, including whether OKM's current living situation was conducive to her well-being, the necessity of making decisions regarding her access, health care, medical and dental consent, and the provision of services, and the identification of a suitable guardian. The court needed to consider the evidence of coercive control and the appropriateness of the proposed guardian, whether it be the Public Guardian or a private individual.

The court found that OKM required a guardianship order due to the identified coercive control and the need for decisions to be made in her best interests. It was determined that no private person was suitable for the role of guardian, leading to the appointment of the Public Guardian. The court made a six-week reviewable order, granting the guardian functions related to access, accommodation, health care, medical and dental consent, and services. The order also included a standard condition requiring the guardian to take reasonable steps to involve OKM in decision-making processes. The hearing regarding financial management was adjourned.

The court's final order was that a guardianship order be made for OKM, appointing the Public Guardian as her guardian for a period of six weeks. The order specified the guardian's functions and included a condition to ensure OKM's views were considered in significant decisions. The matter of financial management was deferred for further hearing.

Orders

Orders of the court

Guardianship

1. A guardianship order is made for OKM.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of six weeks from 10 February 2023.

4. This is a limited guardianship order giving the guardian(s) custody of OKM to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access OKM has to others and the conditions of access.

b) Accommodation

To decide where OKM may reside.

c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take OKM to a place approved by the guardian.

ii) keep her at that place.

iii) return her to that place should she leave it.

d) Health care

To decide what health care OKM may receive.

e) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where OKM is not capable of giving a valid consent.

f) Services

To make decisions about services to be provided to OKM.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring OKM to an understanding of the issues and to obtain and consider her views before making significant decisions.

Financial Management

Today’s hearing is adjourned to a day to be confirmed by the registry.

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:	OKM [2023] NSWCATGD 2
Hearing dates:	10 February 2023
Date of orders:	10 February 2023
Decision date:	10 February 2023
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) Dr J Law, Senior Member (Professional) D R Sword, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for OKM. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of six weeks from 10 February 2023. 4. This is a limited guardianship order giving the guardian(s) custody of OKM to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access OKM has to others and the conditions of access. b) Accommodation To decide where OKM may reside. c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take OKM to a place approved by the guardian. ii) keep her at that place. iii) return her to that place should she leave it. d) Health care To decide what health care OKM may receive. e) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where OKM is not capable of giving a valid consent. f) Services To make decisions about services to be provided to OKM. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring OKM to an understanding of the issues and to obtain and consider her views before making significant decisions. Financial Management Today’s hearing is adjourned to a day to be confirmed by the registry.
Catchwords:	GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made – subject person with intellectual disability – subject person resides with spouse – evidence of coercive control in the relationship – decisions not currently made in the subject person’s best interests – need for decisions to be made about access, health care, medical and dental consent, and services – accommodation function with power to authorise others – no private person suitable to be appointed – Public Guardian appointed – six week reviewable order made
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 45(1)(a), 45(1)(b)(i)-(ii), cl 5(1) of Sch 6 Guardianship Act 1987 (NSW), ss 3(1)-(2), 4,14, 14(2), 15(3)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) IF v IG [2004] NSWADTAP 3 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 ZBC v ZBD [2016] NSWCATAP 264
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	003: Guardianship Application OKM (the person) EZC (applicant) FBN (carer, spouse) Public Guardian (proposed guardian) 004: Financial Management Application OKM (the person) EZC (applicant) FBN (carer, spouse) NSW Trustee and Guardian (proposed financial…