RE C; EX PARTE I and D [2007] WASAT 10

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 10
Act:	GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
Case No:	GAA:756/2005	Heard:	23 NOVEMBER 2006
Coram:	MS J TOOHEY (SENIOR MEMBER) MS F CHILD (MEMBER) MR J JAMES (SENIOR SESSIONAL MEMBER)	Delivered:	14/01/07
No of pages:	15	Judgment Part:	1 of 1
Result:	Appointment of the Public Advocate confirmed
Category:	B
PDF Version

Parties:	I and D
Catchwords:	Guardianship Review of order appointing the Public Advocate plenary guardian Munchausen's by Proxy – Mild intellectual disability – Represented person living with carers since order made – Represented person's wish to return to live with parents – Evidence that represented person had developed and matured Risk if returned to mother's care – Guardian still needed to make decisions in her best interests
Legislation:	Child Welfare Act 1947 (WA) Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 90(1)
Case References:	Children's Court Decision, Burton SM, dated 19 November 2002 Nil

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : RE C; EX PARTE I and D [2007] WASAT 10 MEMBER : MS J TOOHEY (SENIOR MEMBER)

MS F CHILD (MEMBER)

MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD : 23 NOVEMBER 2006 DELIVERED : 15 JANUARY 2007 FILE NO/S : GAA 756 of 2005 EX PARTE

I and D

Applicants

Catchwords:

Guardianship - Review of order appointing the Public Advocate plenary guardian - Munchausen's by Proxy Mild intellectual disability Represented person living with carers since order made Represented person's wish to return to live with parents Evidence that represented person had developed and matured - Risk if returned to mother's care Guardian still needed to make decisions in her best interests

Legislation:

Child Welfare Act 1947 (WA)

Guardianship and Administration Act 1990 (WA), s 4, s 43(1), s 90(1)

(Page 2)

Result:

Appointment of the Public Advocate confirmed

Category: B

Representation:

Counsel:

Applicants : Mr M Devlin

Solicitors:

Applicants : Young & Young

Case(s) referred to in decision(s):

Children's Court Decision, Burton SM, dated 19 November 2002

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 When she was 17, the young woman whom these proceedings concerned was declared by the Children's Court of Western Australia to be in need of care and protection. She was removed from her parents' care and had lived with carers since. After she turned 18, the Guardianship and Administration Board appointed the Public Advocate her guardian. Her parents sought review of that order.

2 The young woman had a long and complex medical history involving numerous admissions to hospital and surgical procedures; at different times she had been dangerously ill. The application for care and protection was made after doctors and hospital staff raised concerns that her mother might suffer from Munchausen's by Proxy, a condition in which one person induces physical or psychological symptoms in another…

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 C;

Details

AGLC: Re C; [2007] WASAT 10
Case: [2007] WASAT 10
Decision Date: 15 JANUARY 2007

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Re C involved a review of a guardianship order appointing the Public Advocate as the plenary guardian of the child. The child had been diagnosed with Munchausen’s by Proxy and mild intellectual disability, and had been living with carers since the initial order was made. The child had expressed a desire to return to her parents, and the court was required to determine whether this was in her best interests.

The legal issues the court needed to decide centred around the child's best interests, taking into account her expressed wishes, her developmental progress, and the potential risks associated with returning to her parents' care. The court had to balance these considerations with the ongoing need for a guardian to make decisions in the child's best interests.

The court found that the child had indeed developed and matured since the initial order, but that there were significant risks if she were to return to her mother’s care. The court held that the child’s wish to return to her parents did not outweigh the risk of harm and that a guardian was still needed to make decisions in her best interests. Consequently, the court confirmed the appointment of the Public Advocate as the child's guardian.

Orders

Orders of the court

Appointment of the Public Advocate confirmed

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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