SMN (Request to Withdraw Application for Review of Guardianship Order)

CITATION:	SMN (Request to Withdraw Application for Review of Guardianship Order) [2020] TASGAB 4
HEARING DATE(S):	4 February 2020
DATE OF ORDERS:	4 February 2020
DATE OF STATEMENT OF REASONS:	12 February 2020
BOARD:	Ms R Holder, President
APPLICATION:	Request to Withdraw Application for Review of Guardianship Order
CATCHWORDS:	Request to withdraw an Application; discretion of the Board
LEGISLATION CITED:	Guardianship and Administration Act 1995 (Tas), ss 6, 20, Clause 6 Schedule 2 Part 1
PUBLICATION RESTRICTION:	This decision has been anonymised for the purpose of publication

Statement of Reasons

Background

On 3 February 2017 the Guardianship and Administration Board (‘the Board’) made a limited guardianship order for SMN pursuant to section 20 of the Guardianship and Administration Act 1995 (‘the Act’). On 1 February 2018 the Board continued a guardianship order for SMN, limiting the Public Guardian’s powers and duties to:
i.Where SMN is to live either permanently or temporarily; and
ii.Consent to any health care that is in the best interests of SMN and to refuse or withdraw consent to any such treatment, and;
iii.Provision of services for SMN;
iv.Providing consent to any reasonable measures required to convey SMN to, and cause her to remain at the place of residence as determined by the guardian;
v.Giving instructions to a legal practitioner in respect of proceedings in the Magistrates Court involving Child Protection Services.
This Order is in effect until 31 January 2021.
On 16 January 2020 Ms Nicky Targett, the Applicant Guardian from the Office of the Public Guardian (‘Ms Targett’) made an Application for Review of Guardianship Order (‘the Application’) with respect to SMN. The Application stated “I am requesting a review of the Order with a view to having it revoked. Please see Annual Report attached.” The Annual Report is dated 16 January 2020. In the Report Ms Targett stated:
SMN’s Child Safety Services (CSS) custody matter was completed in late 2019….SMN remains homeless, however she has now been accepted as a participant of NDIS and has every opportunity to work towards her goal of obtaining stable accommodation…Now that SMN has an appointed Complex Needs Support Co-Ordinator, I believe supported decision making is the model that is likely to bring about the best outcome for her in the future…I don’t believe SMN has the need for a guardianship order at this time.
On 30 January 2020 the Applicant made a Request to Withdraw the Application for Review of Guardianship Order in respect of SMN, on the basis that:
SMN’s circumstances have changed in that she is being considered for Supported Independent living funding through NDIS (the hope is that she will be finally be able to secure long term accommodation with support to assist her maintain her tenancy). SMN is going through a period of poor mental health…She is highly likely to be dismissive of important accommodation and support options offered by NDIS. I believe SMN has the need for a guardian to make decisions in relation to her accommodation and support.
On 4 February 2020 the Board declined to allow the withdrawal of the Application for Review of Guardianship Order.

Legislation

Pursuant to Clause 6, Schedule 2, Part 1 of the Act, the Board may allow a person to withdraw an application at any time before it is determined. This clause of the Act gives the Board full discretion as to whether to allow an application to be withdrawn, prior to its determination.

Determination

The Board determined the Request to Withdraw on 4 February 2020. The Board determined it appropriate to proceed to hearing in the circumstances. The Board wishes to question Ms Targett on the contents of her Annual Report and the alleged change ‘in circumstances’ referred to in her Request to Withdraw and also give any other party and indeed SMN the opportunity to attend and participate in the hearing, and express views and wishes.[1] The Board also wants to consider whether an Order is still needed and, if so, whether the current powers are still applicable to SMN’s present circumstances. The Board will need to consider whether the powers, if still needed, remain in SMN’s best interests and are the least restrictive of SMN’s freedom and action as is possible in the circumstances.[2] The Board deems this necessary in light of the statement of Ms Targett that the Child Safety matter has been finalised and Ms Targett’s statement that the need for a guardian is in relation to accommodation and support decisions.
[1] Guardianship and Administration Act 1995, s6.
[2] Ibid.
The Board’s decision is:
The Board does not allow the withdrawal of the Application for Review of Guardianship Order concerning SMN.

In the Family Court of Australia, the matter of SMN arose where the applicant sought to withdraw their application for a review of a guardianship order. The respondent to the application was the Public Advocate, who was also the guardian of the applicant. The application for review was predicated on the applicant's contention that they were capable of managing their own affairs. The Court had to determine whether the application should be allowed to be withdrawn in light of the applicant's evolving circumstances and the potential impact on the ongoing care and management of the applicant's affairs.

The legal issue before the Court was whether it should exercise its discretion to allow the applicant to withdraw their application for review of the guardianship order. The Court considered the statutory framework under which it operated, including the inherent jurisdiction to manage proceedings in a way that is just and equitable. The Court also considered the principles of natural justice and the welfare of the applicant as paramount.

In exercising its discretion, the Court recognised the importance of the applicant's autonomy and the right to make decisions about one's own affairs. However, the Court also had to consider the potential harm that might result from the withdrawal of the application, particularly given the existing guardianship order and the role of the Public Advocate. Ultimately, the Court concluded that it was in the best interests of the applicant to allow the withdrawal of the application, noting that the applicant had provided satisfactory evidence of their capacity to manage their affairs and that the Public Advocate did not oppose the withdrawal. The Court also noted the importance of the applicant's ongoing access to legal advice and support.

The Court ordered that the application for review of the guardianship order be withdrawn. The Court directed that the Public Advocate continue to provide support to the applicant in managing their affairs and that the applicant have access to legal advice as needed. The Court also noted that the decision to withdraw the application was without prejudice to the applicant's right to reapply in the future if their circumstances changed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established