SCQ

Case •

[2015] NSWCATGD 28

•

01 September 2015

No judgment structure available for this case.

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: SCQ [2015] NSWCATGD 28
Hearing dates:1 September 2015
Date of orders: 01 September 2015
Decision date: 01 September 2015
Jurisdiction:Guardianship Division
Before: M Schyvens, Deputy President
Decision:

Financial management order revoked.

Catchwords: FINANCIAL MANAGEMENT – whether order should be revoked – best interests – subject person incarcerated in a NSW correctional facility – support for revocation by appointed manager – evidence order was counter-productive – small estate – revocation on the grounds of best interests
Legislation Cited: Guardianship Act 1987 (NSW)
Cases Cited: H v H (unreported) NSW Supreme Court 20 March 2000
McD v McD (1983) 3 NSWLR 81
PY v RJS [1982] 2 NSWLR 700
Re GHI (a protected person) [2005] NSWSC 581
Category:Principal judgment
Parties: Mr SCQ (the protected person)
Representation: Separate Representative
File Number(s):28631
Publication restriction:Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

  1. The Tribunal ordered that the financial management order made on 19 August 2014 in relation to the estate of Mr SCQ be revoked.

Background

  1. Mr SCQ is 29 years of age and is currently incarcerated at a correctional facility.

  2. On 10 May 2004, the predecessor to the Tribunal, the then Guardianship Tribunal ("the former Tribunal") made a financial management order, committing Mr SCQ's finances to the management of the then Protective Commissioner (now known as the NSW Trustee and Guardian). At a hearing conducted on 19 November 2007, the former Tribunal was satisfied that it was then in the best interests of Mr SCQ that his estate no longer be subject to management and the order was revoked.

  3. On 7 October 2011, the former Tribunal made another financial management order for Mr SCQ, and again committed the management of his financial affairs to the NSW Trustee and Guardian. Mr SCQ himself had been the applicant on that occasion. The reasons for that decision indicate that Mr SCQ informed the Tribunal that he then believed that it was in his best interests for a financial manager to be appointed.

  4. On 29 March 2012, the former Tribunal received a further application from Mr SCQ, this time seeking the revocation of the financial management order on the grounds that he was then capable of managing his financial affairs, and also on the grounds that it would be in his best interests to revoke that order. A hearing was conducted on 9 July 2012. The former Tribunal confirmed the financial management order at that time.

  5. On 9 April 2014, the Tribunal received a further application from Mr SCQ seeking the revocation of a financial management order. A hearing was conducted on 19 August 2014 and the Tribunal decided to confirm the financial management order.

  6. On 7 August 2015, the Tribunal received an application from the Chief Executive Officer of the NSW Trustee and Guardian, seeking a revocation of the financial management order pertaining to Mr SCQ's.

  7. On 13 August 2015, by its own motion, the Tribunal attended to appointing a separate representative for Mr SCQ. Mr SCQ is currently incarcerated in a NSW correctional facility. As such, he is not necessarily in a position to obtain advice or support in preparing for the hearing to review the management order currently in place over his estate. His incarceration also necessitates the hearing to be conducted by videolink. In these circumstances, to ensure the Tribunal complies with the various duties incumbent upon it, as outlined in s 4 of the Guardianship Act 1987 (NSW), the Tribunal determined it was appropriate that Mr SCQ have a separate representative appointed for the proceedings.

  8. The hearing was listed for 1 September 2015.

The Hearing

  1. At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing [appendix removed for publication].

  2. The hearing was conducted by way of videolink to facilitate the involvement of Mr SCQ from the correctional facility.

What did the Tribunal have to decide?

  1. On reviewing the financial management order made for Mr SCQ, the Tribunal must confirm, revoke or vary the financial management order.

  2. The Tribunal may revoke the financial management order only if:

  1. it is satisfied that Mr SCQ is capable of managing his affairs; or

  2. it considers that it is in the best interests of Mr SCQ that the order be revoked.

Is Mr SCQ capable of managing his affairs?

  1. A person's capability to manage his or her affairs was considered by Campbell J in the NSW Supreme Court in Re GHI (a protected person) [2005] NSWSC 581. Campbell J affirmed the approach enunciated in PY v RJS [1982] 2 NSWLR 700 by Powell J, at paragraph 7:

"It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears:

  1. that he or she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

  2. that by reason of that lack of competence there is shown to be a real risk that either

he or she may be disadvantaged in the conduct of such affairs; or

that such moneys or property that he or she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner..."

  1. Young J in H v H (unreported) NSW Supreme Court 20 March 2000, in dealing with the capacity test as it has been enunciated in NSW, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs, his Honour said,

"are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills."

  1. It should be noted that the relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86).

  2. At the time the financial management order was put in place, at the request of Mr SCQ himself, the former Tribunal recorded in the reasons for making such an order on 7 October 2011 that Mr SCQ was the subject of a range of diagnoses including personality disorder and drug induced psychosis. The Tribunal determined that "on the basis of the evidence about his mental health, addiction and subsequent inability to pay his bills the Tribunal was satisfied that [Mr SCQ] is incapable of managing his financial affairs."

  3. In these proceedings, none of the parties to the proceedings asserted that the order should be revoked on the grounds of regained capacity. The Tribunal was not provided with any evidence, whether that be from a health care professional or otherwise, indicating that Mr SCQ's capacity to manage his own affairs had changed since the time the order was put in place apart from evidence that Mr SCQ was no longer using illicit drugs.

  4. The Tribunal ultimately determined that to continue the financial management order would not be in Mr SCQ's best interests. As such, it was not incumbent upon the Tribunal to make a determination on this issue.

  5. The Tribunal makes comment however that Mr SCQ advised the Tribunal that he believed life had improved greatly for him since the time the order was last put in place. He told the Tribunal that he "wasn't doing drugs anymore and won't be doing them when I get out." He outlined to the Tribunal how he would set up his affairs upon leaving the correctional facility and was endeavouring to find appropriate accommodation.

Is it in the best interests of Mr SCQ that the order be revoked?

  1. In her application to the Tribunal, the CEO of the NSW Trustee and Guardian indicated that she was of the view that the order should be revoked on the basis that the order was no longer in Mr SCQ's best interests.

  2. It is useful to replicate the report that accompanied the CEO of the NSW Trustee and Guardian's application as it provides the background and analysis engaged in as to how the Applicant has come to form this view:

"TAG's (the Trustee and Guardian's) experience has been that the FMO (financial management order) has been difficult to manage and causes [Mr SCQ] extreme frustration to the point where he claims that he is 'forced' to commit crime because of TAG's involvement. Self-management will allow him independence of financial management and the transparent reassurance that no wrongdoing or theft is being done by an external manager.

Mr SCQ was a self-applicant to NCAT. He has subsequently twice attempted to have the Order revoked. [Mr SCQ]'s circumstances have increasingly made management ineffective. There are also reasons to believe (including our clients own repeated reports) that management is contrary to our client's best interests.

Background

[Mr SCQ] made application to GT on his own behalf in October 2011 because he had 'a drug addiction' and was in debt to his accommodation and utilities providers and 'can barely feed myself'. [Mr SCQ] also had debts to SDRO totalling $28,650.

The Tribunal noted their concern 'that placing [Mr SCQ] on an FMO could have the unintended consequence of causing him to commit crime to obtain money for drugs'.

The Order was reviewed in July 2012 and [Mr SCQ] sought revocation on the basis that 'he was old enough to take responsibility for his finances', that he 'could arrange Centrepay deductions for essential expenses' and that 'the OPC' was forcing him to live in poverty'.

In its report TAG noted 'numerous incidents' of challenging behaviour including threats and intimidation causing contact restrictions to be implemented. GT (the former Tribunal) confirmed the FMO.

In early 2013 [Mr SCQ] was evicted from his HNSW (Housing NSW) accommodation due to the fact that his unit was damaged, grafitti'd, full of rubbish and that there was broken furniture strewn throughout the unit. [Mr SCQ] also reportedly had a history of abuse and threats of violence to HNSW staff.

In January 2014 [Mr SCQ] was incarcerated at [a correctional facility]. In May 2014 our client sought Legal Aid assistance to have the FMO revoked and the matter was heard by NCAT on 19 August 2014, soon after [Mr SCQ] was released. At this stage [Mr SCQ] was homeless and unsupported in the community, (apart from TAG) and had recently been transferred to the then Clarence Street unit and on that basis, NCAT confirmed the FMO.

In October 2014 [Mr SCQ] was arrested and found guilty of armed robbery and incarcerated at [correctional facility B] until June 2015. [Mr SCQ] told TAG staff by phone from prison that he was in jail because he was 'forced to commit crime because of TAG managing his money'.

Within days of release [Mr SCQ] was exhibiting unreasonable and challenging behaviour at CSC and an incident on 9 July necessitated police involvement and contact restriction.

Financial management was not possible in any helpful way because of [Mr SCQ]'s acute aversion to the Order, total lack of co-operation and violent and threatening interaction with staff. TAG had no accommodation or support services to pay direct and the management strategy was reduced to release of funds to a bank account in a schedule of which our client consistently denied receipt or regularly demanded to be changed.

[Mr SCQ] had been discharged from Community Mental Health and was no longer monitored by Probation and Parole. Consequently there were no services with which TAG could liaise to make financial decisions in [Mr SCQ]'s best interests.

A week later our client was again incarcerated and he again advised staff by phone that he had been 'forced to commit crime' because of TAG management. He advised that he was due for release in March 2016 and for parole in December 2015.

In summary

[Mr SCQ] self-applied for an FMO. He has subsequently twice advised that the Order is not in his best interests and in fact, that it has resulted in his contact with the criminal justice system.

The FMO is not effective because our client is homeless and there are no other services with which to co-ordinate direct payment plans and [Mr SCQ] is obdurately opposed to co-operation with TAG.

TAG therefore submits that it is in [Mr SCQ]'s best

interests to have the FMO revoked."

  1. The representative of the NSW Trustee and Guardian who participated in the hearing, confirmed and reiterated the views of the CEO of the NSW Trustee and Guardian. The representative of the NSW Trustee and Guardian told the Tribunal that his organisations history with Mr SCQ illustrated that "financial management has not been effective for him, it simply causes great frustration," frustration which seemingly has been a contributor to Mr SCQ committing crimes. The representative of the NSW Trustee and Guardian advised that whilst he did not believe that Mr SCQ had "regained capacity" to manage his affairs, "no one believes that the order is in his best interests."

  2. As Mr SCQ is currently incarcerated, the NSW Trustee and Guardian representative advised that he does not have any form of income. He currently has $14 in his account with the NSW Trustee and Guardian. His only known debt is the sum of $3349 owed to Housing NSW which will most likely have minimal repayments recommence once Mr SCQ becomes entitled to Centrelink benefits upon leaving the correctional facility, or otherwise receives other income.

  3. Mr SCQ presented his views to the Tribunal in support of the position of the NSW Trustee and Guardian. He informed the Tribunal that the financial management order has always proved very stressful for him and that the NSW Trustee and Guardian had refused to "release my money when I really needed it." As a result, he advised that "the order has caused me to commit crimes...I had to commit armed robbery to eat." Noting that he was due to be released from the correctional facility on 14 November 2015, Mr SCQ articulated clearly to the Tribunal his proposed plans for his financial affairs and living arrangements. He advised that Centrelink entitlements would recommence upon his release, that he would engage Centrepay to pay his outstanding debt to Housing NSW, and was seeking support through financial counselling. He also advised that was seeking / would be seeking assistance from his parole officer to obtain accommodation with "Hope Hostel", which if successful, could make arrangements for his rent expenses to be the subject of a direct debit arrangement.

  4. The separate representative appointed for Mr SCQ by the Tribunal provided the Tribunal with both written and oral submissions as to why the application of the NSW Trustee and Guardian should be granted by the Tribunal, that is, that the order should be revoked on the grounds that it is not in Mr SCQ's best interests.

  5. The separate representative met with Mr SCQ at the correctional facility on 19 August 2015 to obtain his views. Mr SCQ advised that he had previously "volunteered" to have an order put in place as it had been suggested to him by Housing NSW when he had significant debt to that organisation, and because "he was using drugs at that time and was experiencing drug induced psychosis." However, through his incarceration, Mr SCQ has not used drugs for some time and states that he no longer has an addiction problem.

  6. In his written submissions to the Tribunal, the separate representative stated:

"It is asserted (by the NSW Trustee and Guardian) that [Mr SCQ] is able to self manage his finances. [Mr SCQ] agrees. He feels extreme frustration when he has to deal with the NSW Trustee. That has given rise to hostility towards the NSW Trustee staff...[Mr SCQ] asserts that a continuation of the financial management order would not be in his best interests. If it were to continue, he asserts it would only serve to force him, on his release from gaol, to turn again to committing crime."

  1. The Tribunal accepted the uncontested evidence of the applicant. This evidence illustrated that whilst the order had achieved success in significantly reducing Mr SCQ's debts, it was now proving to be a catalyst of inducing behaviour and reactive decisions by Mr SCQ which were counter productive. The Tribunal accepted the evidence of Mr SCQ that the order caused him great stress and frustration. This in turn caused for Mr SCQ a belief that the only means of procuring the financial resources he required was to commit crime. It had also led him to engage in hostile actions towards employees of the NSW Trustee and Guardian. In the Tribunal's view, the consequences of these activities outweigh any benefit Mr SCQ currently receives from the financial management order. His estate is currently negligible. Whilst upon his release from the correctional facility he will once again be in receipt of income, there is nothing before the Tribunal suggesting that his estate will be complex or otherwise of a nature that Mr SCQ could not self manage if he accepts informal assistance from appropriate sources.

  2. The Tribunal was satisfied that it was in Mr SCQ's best interests that the financial management order committing his estate to the NSW Trustee and Guardian should be revoked.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Decision last updated: 01 December 2015

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