Re H

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.