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Re TLH, a protected person

Re TLH, a protected person

Case [2017] NSWSC 737 7 June 2017

Standing

Welfare of Protected Person

Change of Manager

Guardianship

Mental Health

Prudential Management

Family Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re TLH, a protected person [2017] NSWSC 737
Hearing dates: -
Date of orders: 07 June 2017
Decision date: 07 June 2017
Before: Lindsay J (in chambers)
Decision:
Orders made for a change of manager of a protected estate.

Catchwords:
GUARDIANSHIP -- Protected person -- Financial management -- Principles governing a change of manager – Application does not require determination of complaints about manager – Irretrievable breakdown in relationship between manager and protected person’s family sufficient for change of manager - Paramount consideration remains welfare, and interests, of protected person

MENTAL HEALTH -- Protected person -- Appointment of manager of estate -- Change of manager -- Principles governing change of manager -- Paramount consideration remains welfare, and interests, of protected person – Prudential management requires flexibility, consultation and respect for autonomy.
PRACTICE - NSW Trustee and Guardian Act - Protected person -- Appointment of manager of estate - Change of manager - Paramount consideration remains welfare, and interests, of protected person
Legislation Cited: NSW Trustee and Guardian Act 2009 NSW
Cases Cited: Ability One Financial Management Pty Limited v JB by his tutor AB [2014] NSWSC 245
Holt v Protective Commissioner (1993) 31 NSWLR 227
M v M [2013] NSWSC 1495
Re AAA; Report on a Protected Person’s Attainment of the Age of Majority [2016] NSWSC 805
Re LSC and GC [2016] NSWSC 1896
Re Managed Estates Remuneration Orders [2014] NSWSC 383)
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218
SLJ v RTJ [2017] NSWSC 137
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Mother, and carer, of Protected Person
Defendant: Protected Person, a child
Protected Estate Manager: Perpetual Trustee Company Limited ACN 000 001 007
Representation:
Solicitors:
Plaintiff: Maurice Blackburn Lawyers
Defendant: -
Protected Estate Manager: Mackinson & d’Apice

File Number(s): 2015/003771572017/00023642

Judgment

INTRODUCTION

This judgment deals with an application by the mother (a single parent) of a disabled, seven-year-old child (a “protected person” within the meaning of section 38 of the NSW Trustee and Guardian Act 2009 NSW) for the manager of her child’s estate (Perpetual Trustee Company Limited ACN 000 001 007) to be removed and replaced by another licensed trustee company, Australian Executor Trustees Limited ACN 007 869 794.
The application demands a pause for thought because the original appointment of a protected estate manager (on 4 February 2016, approximately one year before the present application was filed in the Court) was comparatively recent and, leaving aside the “pros” and “cons” of particular managers, there is a natural apprehension that:

an application for a change of manager so soon in management of an estate may be a manifestation of problems that need to be addressed; and

the application, and any consequent change of manager, might unnecessarily expose the estate of the protected…

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 TLH, a protected person

Details

AGLC: Re TLH, a protected person [2017] NSWSC 737
Case: [2017] NSWSC 737
Decision Date: 07 June 2017

CaseChat Overview and Summary

In the matter of TLH, a protected person, the court was presented with an application concerning the management of the estate of a person under guardianship. TLH, who is a protected person under the NSW Trustee and Guardian Act, had previously appointed a manager to oversee their financial affairs. The dispute arose when TLH sought to have this manager replaced due to an alleged breakdown in their relationship with TLH’s family. The Family Court of Australia was tasked with determining whether the application for a change of manager should be granted.

The primary legal issue before the court was whether the application for a change of manager necessitated a determination of complaints against the current manager. The court also had to consider the principles governing a change of manager for a protected person, including the paramount consideration of the protected person's welfare and interests. Additionally, the court had to assess whether the relationship breakdown between the manager and TLH’s family was sufficient grounds for a change in management, given the importance of prudential management practices.

The court found that the application did not require a determination of complaints against the existing manager, as the application itself was not predicated on any allegations of misconduct or mismanagement. Instead, the court emphasised the necessity of flexibility, consultation, and respect for autonomy in managing the estate of a protected person. The Family Court recognised that the welfare and interests of the protected person were the paramount considerations in this matter. Given the irretrievable breakdown in the relationship between the manager and TLH’s family, the court concluded that this was a sufficient ground for changing the manager. The court noted that the principles of prudential management require a flexible approach that respects the autonomy of the protected person while ensuring their best interests are safeguarded.

The final orders of the court were to grant the application for the change of manager, reflecting the paramount consideration of TLH’s welfare and interests, as well as the need for respectful and consultative management practices. The court's decision underscores the importance of maintaining a balance between the protected person's autonomy and the need for effective financial management.

Orders