GUARDIANSHIP – Guardianship Act 1987 (NSW) ss 25E, 25G – NSW Trustee and Guardian Act 2009 (NSW) s 41 – Parens patriae jurisdiction – Application for financial management order – Where matter transferred to Supreme Court from NCAT – Whether defendant incapable of managing her affairs – Where defendant said to be under the influence of two of her children – Discussion concerning evidence required
This is the first of at least three pieces of litigation it is anticipated will ensue between a mother and her son and daughter.
In this matter, removed from NCAT under s 25L of the Guardianship Act 1987 (NSW), the issue is whether the Court should appoint a financial manager to manage the defendant mother’s affairs.
Depending upon the outcome other consequential applications may flow and the other pieces of litigation may take a different form and course to that which is currently intended.
Initially I was invited to hear all proceedings together by reason of the identity of the parties and many of the issues but in the end I took the view that only the issue removed from NCAT should be heard separately because of the significance of the result upon the parties and therefore future course of any other piece of litigation.
The present…
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
Sobalirov v Bullen [2020] NSWSC 1532
Case
[2020] NSWSC 1532
Decision Date
CaseChat Overview and Summary
In the matter of Sobalirov v Bullen, the dispute involved the application for a financial management order concerning the defendant, Bullen. The case was transferred to the Supreme Court of New South Wales from the NCAT, where it was argued that Bullen was incapable of managing her affairs due to being under the influence of two of her children. The primary legal issues the court was required to address were whether Bullen lacked the capacity to manage her financial affairs and, if so, whether the evidence provided was sufficient to support such a claim. The court needed to determine the appropriate legal standards and the burden of proof in such cases.
The court carefully examined the evidence presented to assess Bullen's capacity to manage her affairs. It considered the testimonies and the applicability of the Guardianship Act 1987 (NSW) and the NSW Trustee and Guardian Act 2009 (NSW). The court held that the evidence did not meet the required standard to establish that Bullen was unable to manage her financial affairs. The court emphasised the necessity for clear and convincing evidence to support such a significant decision under the parens patriae jurisdiction. As a result, the court dismissed the application for a financial management order.
The reasoning and outcome of the case highlight the stringent requirements for establishing incapacity in guardianship matters. The court's decision underscored the importance of thorough evidence and legal standards in such sensitive cases. The orders of the court were that the application for a financial management order was dismissed, and Bullen was to retain control over her financial affairs.