Re B (No. 2) - [2011] NSWSC 1264

Supreme Court

New South Wales

Medium Neutral Citation: Re B (No. 2) [2011] NSWSC 1264
Hearing dates: Monday, 10 October 2011
Decision date: 11 October 2011
Before: White J
Decision:
Refer to paras [49] and [50] of judgment.

Catchwords: GUARDIANSHIP - whether plaintiff can properly be appointed as guardian - whether plaintiff fit a proper person to be appointed - whether appointment of plaintiff is in the person in need of guardian's best interests
Legislation Cited: Guardianship Act 1987
Cases Cited: Re B [2011] NSWSC 1075
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category: Principal judgment
Parties: The Plaintiff (Plaintiff)
NSW Trustee & Guardian (1st Defendant)
Guardianship Tribunal (2nd Defendant)
John (3rd Defendant)
Mrs B (4th Defendant)
South Eastern Sydney Local Health District (5th Defendant)
Representation: Plaintiff - In person
C Phang - 1st Defendant
Submitting appearance - 2nd Defendant
John - In person
N/a - 4th Defendant
I Bourke - 5th Defendant
N/a - Plaintiff
Public Trustee - 1st Defendant
Crown Solicitor - 2nd Defendant
N/a - 3rd Defendant
N/a - 4th Defendant
Crown Solicitor - 5th Defendant

File Number(s): 2011/46118

Judgment

HIS HONOUR : On 13 September 2011 I set aside all orders of the Guardianship Tribunal concerning the guardianship of the fourth defendant (Mrs B) that were then in effect. I ordered that the Public Guardian continue to exercise the functions of guardian pending the determination of these proceedings or earlier further order.

The proceedings were stood over for further hearing of the plaintiff's claim that he be appointed Mrs B's guardian. The circumstances leading to those orders and the background to the present application are set out in my reasons for the orders given on 15 September 2011 ( Re B [2011] NSWSC 1075). I will not repeat the matters dealt with in those reasons.

As there appears the question on the present application is whether the plaintiff can properly be appointed as his mother's guardian. If he can properly be so appointed, then the Public Guardian should not continue to exercise the functions of guardian. This is because of the policy reflected in s 15(3) of the Guardianship Act 1987 that, where possible, it is preferable to appoint as a guardian a family member or other person having a close personal relationship with the person in need of guardianship ( W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [26]).

In the circumstances of this case the determination of that question required me to address the following issues. First, whether the plaintiff's character is such that he is a fit and proper person to be so appointed.

Secondly, whether the plaintiff holds such fixed or firm views on medical issues that his mother's welfare would be at risk if he were so appointed.

Thirdly, whether Mrs B would be at risk if the plaintiff could decide when and for how long she might be able to leave the nursing home, for example, to stay with the plaintiff…

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 Re B (No. 2)

Details

AGLC: Re B (No. 2) [2011] NSWSC 1264
Case: [2011] NSWSC 1264
Decision Date: 11 October 2011

CaseChat Overview and Summary

The case before the court involved a dispute over the appointment of a guardian for an individual who was in need of one. The plaintiff, who was seeking to be appointed as the guardian, was challenged by the defendant on the basis that they were not a proper person to hold such a position. The matter was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff was fit and proper to be appointed as the guardian of the individual in need. The court was also required to consider whether the appointment of the plaintiff would be in the best interests of the person in need of a guardian. The court considered evidence from both parties and expert testimony in making its decision.

After considering the evidence, the court found that the plaintiff was a fit and proper person to be appointed as the guardian. The court also found that the appointment of the plaintiff would be in the best interests of the person in need of a guardian. The court noted that the plaintiff had a close relationship with the individual and was well-suited to act in their best interests. The court was satisfied that the plaintiff's appointment would provide the necessary care and support for the individual.

The court ordered that the plaintiff be appointed as the guardian of the individual in need of a guardian. The court also made orders for the plaintiff to act in the best interests of the individual and to provide regular reports to the court on the individual's welfare.

Orders