Re C (No. 2) - [2012] NSWSC 1351

Supreme Court

New South Wales

Medium Neutral Citation: Re C (No. 2) [2012] NSWSC 1351
Hearing dates: 2 November 2012
Decision date: 02 November 2012
Before: White J
Decision:
Refer to paras [38] and [39] of judgment.

Catchwords: GUARDIANSHIP - accommodation of protected person - applications by daughter of protected person - application that NSW Trustee and Guardian release funds from protected person's assets for accommodation of protected person - court will not replace the decision of NSW Trustee and Guardian with its own decision - application for NSW Trustee and Guardian to immediately make decision regarding proposal for accommodation of protected person - delay in making decision regarding previous accommodation proposal - decision must be made in accordance with principles in Guardianship Act 1987 (NSW), s 4 - order that decision be made promptly - application that questions of protected person's accommodation be decided by protected person's daughter alone or jointly with Public Guardian - Guardianship Tribunal already decided that Public Guardian make accommodation decisions - previous application to remove Public Guardian dismissed - application for order that accommodation decisions be made jointly refused
Legislation Cited: Guardianship Act 1987 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Cases Cited: Re C [2012] NSWSC 1097
S v S [2001] NSWSC 146
PZ v NSW Trustee and Guardian [2011] NSWADT 48
TF v PZ (GD) [2011] NSWADTAP 33
Category: Interlocutory applications
Parties: Plaintiff
NSW Trustee and Guardian (1st Defendant)
Public Guardian (2nd Defendant)
3rd Defendant
4th Defendant
Representation: Counsel:
In Person (Plaintiff)
Dr J Lucy (1st & 2nd Defendants)
In Person (3rd Defendant)
In Person (4th Defendant)
Solicitors:
Crown Solicitor (1st & 2nd Defendants)

File Number(s): 2012/206438

Judgment

HIS HONOUR: In these reasons I will call the protected person "C", as I did in my earlier published reasons (Re C [2012] NSWSC 1097).

By notice of motion filed in court this morning and heard instanter, the plaintiff seeks orders that:

(a) the NSW Trustee and Guardian release funds from C's assets immediately to assist in relocation to a rental property at St Albans or to rent a property at Marengo with an exchange of contracts on a five per cent deposit with the balance of the purchase price of the latter property to be paid within six months;

(b) the court stipulate an immediate date for decision on either the St Albans rental property or the purchase of the Marengo rural property; and

(c) she be granted the function of deciding the questions of accommodation for C jointly with the Public Guardian, or singly, that is to say, by herself alone, and that the NSW Trustee release necessary funds to secure suitable accommodation.

By the notice of motion the plaintiff also sought an order that all moneys deducted from C's assets be returned to him. So far as this last order is concerned, I think it relates to a concern by the plaintiff that the costs of the proceedings to date incurred by the NSW Trustee and Guardian, or which…

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 (No. 2)

Details

AGLC: Re C (No. 2) [2012] NSWSC 1351
Case: [2012] NSWSC 1351
Decision Date: 02 November 2012

CaseChat Overview and Summary

In the matter of Re C (No. 2), the applicant sought orders regarding the accommodation of the protected person, who was under the care of the NSW Trustee and Guardian. The applicant, the daughter of the protected person, sought funds to be released from the protected person's assets for the accommodation of the protected person and also sought an order that she alone or jointly with the Public Guardian be permitted to make decisions regarding the accommodation of the protected person. The court was required to determine whether the decision of the NSW Trustee and Guardian to withhold funds for the accommodation of the protected person was appropriate, and whether the applicant should have the sole or joint authority to make decisions regarding the accommodation of the protected person.

The court held that it would not substitute its own decision for that of the NSW Trustee and Guardian in relation to the release of funds for the accommodation of the protected person. The court also found that the decision of the NSW Trustee and Guardian to withhold funds was reasonable and in the best interests of the protected person. The court held that the decision regarding the accommodation of the protected person must be made in accordance with the principles in the Guardianship Act 1987 (NSW), s 4. The court made an order that the decision regarding the accommodation of the protected person be made promptly and that the decision be made in accordance with the principles in the Guardianship Act 1987 (NSW), s 4.

The court further held that the applicant's application for the sole or joint authority to make decisions regarding the accommodation of the protected person be refused, as the Guardianship Tribunal had already decided that the Public Guardian should make accommodation decisions. The court found that the previous application to remove the Public Guardian had been dismissed and that it was not appropriate to grant the applicant the sole or joint authority to make decisions regarding the accommodation of the protected person. The court made an order that the decision regarding the accommodation of the protected person be made by the NSW Trustee and Guardian in accordance with the principles in the Guardianship Act 1987 (NSW), s 4.

Orders