Re H - [2013] NSWSC 1384

Supreme Court

New South Wales

Medium Neutral Citation: Re H [2013] NSWSC 1384
Hearing dates: 13 September 2013
Decision date: 13 September 2013
Jurisdiction: Equity Division - Duty List
Before: White J
Decision:
Refer to paras [29] and [30] of judgment.

Catchwords: GUARDIANSHIP - application to discharge order restraining guardian from relocating person subject to guardianship order - first defendant subject to guardianship order residing in nursing home - second defendant guardian intended to relocate first defendant from nursing home to former residence - plaintiff obtained order restraining second defendant from so doing - guardian is person primarily responsible for determining where person subject to guardianship order resides - whether serious question to be tried that plaintiff could obtain change of guardianship
Legislation Cited: Guardianship Act 1987
Cases Cited: K v K [2000] NSWSC 1052
EB v Guardianship Tribunal [2011] NSWSC 767
Category: Interlocutory applications
Parties: WH (Plaintiff)
SH (1st Defendant)
WK (2nd Defendant)
Public Guardian (3rd Defendant)
Representation: Counsel:
R D Wilson (Plaintiff)
P Friedlander (1st Defendant)
In Person (2nd Defendant)
Solicitors:
Stacks/Family Law (Plaintiff)

File Number(s): 2013/276747

Judgment

HIS HONOUR: These proceedings concern the guardianship of the first defendant. In accordance with s 57 of the Guardianship Act 1987, I order that the proceedings be anonymised and be known as "Re H".

The present application is for the extension up to and including 23 September 2013 of an order made ex parte yesterday by Hallen J restraining the second defendant from removing or causing to be removed the first defendant from the Sir Moses Montefiore Jewish Nursing Home at Randwick and from taking any steps to interfere with her care and residence at that home. The plaintiff seeks the continuation of that order with some modifications.

The first defendant is 89 years old. She and the plaintiff were married in October 1960. They lived in a home in Edgecliff Road, Woollahra until the first defendant was admitted to the Sir Moses Montefiore Home in Randwick in late January this year.

The second defendant was appointed as the first defendant's enduring guardian by an instrument dated 16 March 2012. The second defendant gave evidence to the effect that the reason the first defendant moved to the Montefiore Home in Randwick in January this year was because she suffers from dementia and that she was at risk of harm either by falling or through wandering.

On 21 December 2012, an application was made by four individuals to the Guardianship Tribunal for the appointment of a financial manager and the appointment of a substitute guardian for the first defendant. It is not clear from the material I have, precisely who was sought to be appointed as guardian. The Tribunal made orders on 15 February 2013 dismissing the application for the appointment of the guardian. The Tribunal appointed Mr Martin Fowler as the first defendant's financial manager subject to the authorities and directions ordered by the NSW Trustee and Guardian. Mr Fowler acts as the first defendant's tutor in these proceedings.

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 H

Details

AGLC: Re H [2013] NSWSC 1384
Case: [2013] NSWSC 1384
Decision Date: 13 September 2013

CaseChat Overview and Summary

The matter of Re H involved an application for the discharge of an order restraining the second defendant, who was the guardian of the first defendant, from relocating the first defendant from a nursing home to her former residence. The plaintiff, who had obtained the order restraining the relocation, sought to discharge the order. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether there was a serious question to be tried that the plaintiff could obtain a change of guardianship and whether the plaintiff had made out a case that the second defendant should be restrained from relocating the first defendant until a further hearing. The court had to consider the role of the guardian in determining where the person subject to a guardianship order resides and the balance between the rights of the person subject to the order and the rights of the guardian.

In determining the application, the court considered the evidence presented by the parties and the relevant statutory framework. The court found that there was a serious question to be tried that the plaintiff could obtain a change of guardianship and that the plaintiff had made out a case that the second defendant should be restrained from relocating the first defendant until a further hearing. The court noted that the guardian is the person primarily responsible for determining where the person subject to a guardianship order resides and that the relocation of the first defendant to her former residence would result in a significant change in her living arrangements. The court also noted that the first defendant had expressed a preference to remain in the nursing home and that there were concerns about her capacity to make an informed decision about the relocation. The court concluded that the application should be dismissed, but that the plaintiff should be given an opportunity to present further evidence at a further hearing.

The final orders of the court were that the application be dismissed, but that the plaintiff be given leave to adduce further evidence at a further hearing. The court also ordered that the second defendant be restrained from relocating the first defendant until the further hearing.

Orders