SCQ - [2015] NSWCATGD 28

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

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

Background

Mr SCQ is 29 years of age and is currently incarcerated at a correctional facility.
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that it was then in the best interests of Mr SCQ that his estate no longer be subject to management and the order was revoked.
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.
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.
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.
On 7 August 2015, the Tribunal received an application from the…

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.

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Details

AGLC: SCQ [2015] NSWCATGD 28
Case: [2015] NSWCATGD 28
Decision Date: 01 September 2015

CaseChat Overview and Summary

The matter before the Court was an application to revoke a financial management order made in relation to a person incarcerated in a New South Wales correctional facility. The application was brought by the person's appointed financial manager who provided evidence that the management order was counter-productive and not in the best interests of the subject person. The estate was small, and the court was asked to consider the arguments for and against revocation of the order.

The court was required to determine whether the order should be revoked on the grounds that it was not in the best interests of the subject person. The court considered the evidence provided by the appointed financial manager, who argued that the order was counter-productive and did not serve the subject person's interests. The court also considered the relevant legislation and case law, which established the principles for making such decisions.

The court found that the evidence provided by the appointed financial manager was compelling and that the order was indeed counter-productive and not in the best interests of the subject person. The court also noted that the estate was small, which further supported the argument for revocation. The court was satisfied that the application met the necessary criteria for revocation and that the order should be revoked in the interests of the subject person.

The court revoked the financial management order, finding that it was not in the best interests of the subject person and that revocation was in their best interests. The court's decision was based on the evidence provided by the appointed financial manager and the relevant legislation and case law.

Orders

Orders of the court

Financial management order revoked.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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)).