Re Flint - [2005] NSWSC 560

CITATION:
Re Flint [2005] NSWSC 560

HEARING DATE(S): Heard in chambers without appearance of any person

JUDGMENT DATE :

9 June 2005

JURISDICTION:
Equity Division
Protective List

JUDGMENT OF:
Young CJ in Eq

DECISION:
Plaintiffs appointed managers of defendant's estate; plaintiffs' costs to be paid out of estate.

CATCHWORDS:
MENTAL HEALTH [3]- Missing person- Appointment of Protective Manager- How case established- Parents appointed managers of missing person's estate- Security not needed where managers share close relationship with protected person and estate is small- Operation of Protected Estates Act 1983, s 21C.

LEGISLATION CITED:
Protected Estates Act 1983, ss 21C, 31

PARTIES:
Lindsay Ross Flint and Pauline Anne Flint (P)
Glenn Keith Douglas Flint (D)

FILE NUMBER(S):
SC 24/2005

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

YOUNG CJ in EQ

Thursday 9 June 2005

24/2005 – RE FLINT

JUDGMENT

1 HIS HONOUR: On 15 November 2001 Glenn Flint left his parents' home at Manly to attend a medical appointment. He fulfilled that appointment, but was never seen again.

2 On 16 November 2001, Glenn's mother reported his disappearance to the police.

3 The evidence shows that the police have followed their usual procedure in tracing missing persons without a positive result.

4 A Google search shows eight entries relating to Glenn as a missing person.

5 The evidence shows that Glenn's disappearance and his parents' concerns have been published in articles in the Sun Herald and Woman's Day and other media with widespread circulation.

6 In addition, the Salvation Army was requested to trace Glenn: it has endeavoured to find Glenn, but without success.

7 There has been no positive response.

8 The plaintiffs, who are Glenn's parents, seek an order under s 21C of the Protected Estates Act 1983, a provision which only came into force in December last year.

9 Because this is, as far as I am aware, the first case under this provision, I thought it was appropriate to give reasons for my decision.

10 Section 21C of the Protected Estates Act 1983 is as follows:

"(1) The Court may declare that a person is a missing person and order that the estate of the person (or any part of it) be subject to management under this Act if the Court is satisfied that:

(a) the person is a missing person, and

(b) the person's usual place of residence is in this State, and

(2) The Court may be satisfied that a person is a missing person only if it is satisfied that:

(a) it is not known whether the person is alive, and

(b) all reasonable efforts have been made to locate the person, and

(c) persons residing at the place where the person was last known to reside, or relatives or friends with whom the person would be likely to communicate, have not heard from, or of, the person for at least 90 days.

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 Flint

Details

AGLC: Re Flint [2005] NSWSC 560
Case: [2005] NSWSC 560
Decision Date: 9 June 2005

CaseChat Overview and Summary

In the matter of Re Flint, the parties involved were the parents of Flint, a missing person, who applied for the appointment of a Protective Manager over their son's estate. The court considered the nature of the dispute which centred around the necessity of appointing a Protective Manager and the conditions under which such an appointment should be made, given the circumstances of the missing person and the size of the estate. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the appointment of a Protective Manager was necessary in the context of a missing person where the estate is relatively small and the potential managers, in this case the parents, have a close relationship with the missing person. The court was required to determine if the statutory provisions under the Protected Estates Act 1983 warranted such an appointment. Specifically, the court considered the relevance of section 21C of the Act in the context of the parents' application.

In delivering its judgment, the court examined the provisions of the Protected Estates Act 1983 and found that while the Act provides for the appointment of a Protective Manager to safeguard the interests of a missing person, the specific circumstances of the case mitigated the need for such an appointment. The court noted that the parents, who are the proposed managers, share a close relationship with Flint and the estate is not substantial, factors which significantly reduce the risk of mismanagement or misappropriation of the estate. The court concluded that in these circumstances, the appointment of a Protective Manager was not necessary, thereby granting the parents' application to be appointed as managers of their son's estate.

The court's final orders were that the parents of Flint be appointed as managers of his estate, recognising the unique nature of the case and the close familial ties. The court emphasised that this decision was made in consideration of the specific provisions of the Protected Estates Act 1983 and the particular circumstances surrounding the missing person and the size of the estate.

Orders