Re v New South Wales Trustee and Guardian

[2010] NSWADT 98

CITATION:	RE v New South Wales Trustee and Guardian [2010] NSWADT 98
DIVISION:	General Division
PARTIES:	APPLICANT RE RESPONDENT New South Wales Trustee and Guardian
FILE NUMBER:	093272
HEARING DATES:	30 March 2010
SUBMISSIONS CLOSED:	30 March 2010
DATE OF DECISION:	19 April 2010
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	GUARDIANSHIP – Protected Person – Property Settlement with former wife – Best interests of protected person
LEGISLATION CITED:	Protected Estates Act 1983
REPRESENTATION:	APPLICANT K Lang, advocate, Regional Information and Advocacy Council Inc. RESPONDENT C Phang, legal officer
ORDERS:	Decision under review affirmed.

1 The applicant is a protected person whose financial affairs are under the control of the NSW Trustee and Guardian (‘the Trustee’) pursuant to an order of the Guardianship Tribunal made under the Protected Estates Act 1983.

2 On 15 July 2009, the Trustee, on behalf of the applicant, entered into a property settlement with his former wife under which there was a division of the assets of the marriage. The settlement included an allowance of $200 in favour of the applicant for tools he had owned but had been retained by his former wife.

3 In this application filed on 19 October 2009, several weeks after the settlement was completed, and monies distributed, the applicant applied for review by the Tribunal of the Trustee’s decision to allow the former wife to retain the tools in return for the allowance.

4 The applicant has been assisted in bringing the application by Ms Kathryn Lang of the Regional Information and Advocacy Council Inc. and Ms Veronica Chong, social worker. The applicant lives at a housing centre administered by the local council in a rural part of the State. He has a mild brain injury.

5 There have been two directions hearings during which discussions occurred as to how the matter might be resolved, as well as a formal hearing. The applicant, Ms Lang and Ms Chong have participated by telephone. Ms Catherine Phang, legal officer, has appeared for the Trustee.

6 The Tribunal was informed that the tools retained included both power tools (for example, circular saw) and hand tools.

7 The hand tools, in particular, have a special significance for the applicant. They are tools that are based on pre-metric Imperial measurements and dimensions. They were given to him as a token of appreciation for good and loyal service by a former employer.

8 The applicant stated to the Tribunal at hearing that he is only interested in having the hand tools returned.

9 For the property settlement negotiations with his former wife, the Trustee engaged Moss Krouk and Associates, solicitors. It was well known at that time that the applicant wanted to have his tools returned to him as part of the settlement. His former wife refused to return the tools as she was concerned that he might use them in a way that was unsafe. The issue for her was not a monetary one. The solicitors advised that it would be preferable for the settlement to proceed even if this issue could not be resolved in the way the applicant preferred. An allowance of $200 in favour of the applicant, in effect payment for the goods, was agreed to by the former wife.

10 The Tribunal has been advised that informal attempts have since been made by the Trustee and Ms Chong to see if the former wife is prepared to hand over the tools in return for a refund, but she is unwilling to do so.

11 The Tribunal has considered the following material: the contents of the application for review; the bundle of documents dealing with the property settlement and the particular issue of the tools; an occupational therapist’s report dated 30 January 2010 (from Megan Dalla Santa); submissions from Ms Lang on behalf of the applicant dated 2 March 2010; and submissions from the Trustee, prepared by Ms Phang, dated 17 March 2010.

12 There was no contest on the part of the NSW Trustee with Ms Dalla Santa’s assessment. Her report sets out his medical history, the current extent of impairment of brain function and deals under various headings with the extent to which he manages his life independently. The report deals at greater length with his hazard perception in relation to tool use.

13 To summarise, in her opinion it would not be safe to allow the applicant to have possession of the power tools. As already noted, the applicant does not wish to have the power tools. On the other hand, she thinks that no significant risk is presented by him having the hand tools. He is interested in being involved in repair work with cars and motor bikes. She thought that the tools could be incorporated in a positive way into therapy programs. She concluded:

‘[The applicant] was able to identify some possible current and future uses of his hand tools, which may assist him to re-develop his past interests, or develop new ones. It is recommended that he can appropriately use his hand-tools as required. It is recommended that options for re-development of his interests and volunteer work roles are considered.’

14 At hearing, it became apparent that the applicant is also aggrieved over what he sees as a failure by the Trustee to have regard to his wishes in finalising the settlement. On the basis of the material that was before me (in particular a letter from Mr Krouk solicitor, dated 19 August 2009 at paragraph two), I am satisfied that Mr Krouk was aware at relevant times of the applicant’s wishes in the matter. The applicant disputes that he ever had any contact with Mr Krouk on this issue. I think it unlikely that an experienced solicitor would make a statement that there had been contact if that had not occurred. It may be that the applicant no longer recollects the contact.

15 As I explained at hearing, the ultimate obligation of the Trustee is to make decisions ‘in the best interests’ of the protected person. The documentation clearly shows that the Trustee was aware of the applicant’s wishes, but chose not to act on them when the former wife remained resistant to handing over the tools, in circumstances where all other matters had been resolved. In my view, the Trustee was guided by what it saw to be the best interests of the applicant, even though it was not successful on this issue. Ms Chong, for the applicant, referred to how he did not feel that he had been listened to by the Trustee, and his feeling that his wishes had not been implemented.

16 I must accept, I consider, the submission of Ms Phang that there is nothing to be achieved by the Tribunal at this juncture if it was minded to accept the submissions of the applicant in making a decision that sets aside the Trustee’s decision. The settlement is finalised, property in the goods has passed to the former wife, and it is entirely up to her as to whether they can be returned to the applicant.

17 In my view, the Trustee did have regard to the best interests of the applicant when it decided to finalise the settlement. It accepted advice that any further attempts to recover the tools would hold up the settlement, and incur yet-more legal costs, thereby further reducing the ultimate amount retained by the applicant.

18 The appropriate course therefore is to dismiss the application, and affirm the decision under review.

19 On the other hand, this proceeding has led to expert evidence being obtained as to the appropriateness of the applicant being allowed to use hand tools. The report is positive. I would encourage the Trustee to bring this decision to the attention of the former wife, and draw her attention to the comments of Ms Dalla Santa.

20 If, as may be possible, the former wife had disposed of the goods (Ms Chong felt that that may have occurred), then I would suggest that some attempt be made by the Trustee to buy some similar pre-metric hand tools for the enjoyment of the applicant.

Order

Decision under review affirmed.