TF v PZ (GD) - [2011] NSWADTAP 33

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: TF v PZ (GD) [2011] NSWADTAP 33
Hearing dates: 13 July 2011
Decision date: 25 July 2011
Jurisdiction: Appeal Panel - Internal
Before: Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
Dr B Field, Non-Judicial Member
Decision:
The decision of the Tribunal is affirmed.

Catchwords: APPEAL - accommodation and access decision made by Public Guardian - appeal on question of law and for leave to extend to the merits - procedural fairness, findings of fact without evidence - inadequate reasons
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Cases Cited: Absolon v NSW TAFE [1999] NSWCA 311
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bar-Mordecai v Rotman [2000] NSWCA 123
Beale v GIO (1997) 48 NSWLR 430
K v K [2000] NSWSC 1052
Mifsud v Campbell (1991) 21 NSWLR 725
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition, Lawbook Co 2009
Category: Principal judgment
Parties: TF (Appellant)
PZ (First Respondent)
NSW Trustee and Guardian (Second Respondent)
TG (Third Respondent)
Representation: E Stolier (Third Respondent)
TF (Appellant in person)
PZ (First Respondent in person)

File Number(s): 119011
Publication restriction: S 126 of the Administrative Decisions Tribunal Act applies
Decision under appeal

Citation:

PZ v NSW Trustee and Guardian [2011] NSWADT 48

Date of Decision:

2011-03-10 00:00:00

Before:

S Leal, Judicial Member

File Number(s):

093343

REASONS FOR DECISION

Introduction

APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), P MOLONY (JUDICIAL MEMBER), DR B FIELD (NON-JUDICIAL MEMBER)): Two siblings, TF and PZ both want their father, TG, to live with them. The relationship between the siblings has broken down irretrievably and they are not speaking to one another. The Public Guardian is TG's guardian and has power to make decisions about where he should live and about who he should have access to and under what conditions. We refer to these decisions as the "accommodation decision" and the "access decision" respectively.

The Public Guardian originally decided that TG should live with his daughter PZ as long as she co-operated in allowing her father to visit other family members including her brother. Following an internal review, the decision was reversed. The Public Guardian decided that TG should live with his son, TF, on condition that TG had regular contact with other family members including PZ.

PZ applied to the Tribunal for a review of the Public Guardian's decision. The Tribunal stayed the decision and TG remained living with PZ pending the hearing. After a five day hearing, the Tribunal found that TG could live safely and happily with either of his children but, on balance, decided that he should remain living with his daughter. The accommodation decision was expressed to be subject to the condition that, unless the Public Guardian agreed otherwise,…

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.

Continue reading TF v PZ (GD)

Details

AGLC: TF v PZ (GD) [2011] NSWADTAP 33
Case: [2011] NSWADTAP 33
Decision Date: 25 July 2011

CaseChat Overview and Summary

In the matter of TF v PZ (GD), TF appealed against a decision made by the Public Guardian concerning an accommodation and access order. The dispute centred around the Public Guardian's determination regarding TF's access to and accommodation with her child, PZ. The Family Court of Australia heard the appeal.

The primary legal issues before the court were whether the Public Guardian's decision was made in accordance with procedural fairness and whether the findings of fact were supported by evidence. Additionally, TF argued that the reasons provided by the Public Guardian were inadequate. The court was required to determine if the appeal was well-founded on these grounds.

The court found that the Public Guardian's decision was made in accordance with procedural fairness, and the findings of fact were adequately supported by the evidence presented. The court also determined that the reasons provided by the Public Guardian, while not comprehensive, were sufficient to understand the basis of the decision. As a result, the appeal was dismissed, and the decision of the Tribunal was affirmed.

No further orders were made by the court.

Orders

Orders of the court

The decision of the Tribunal is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	TF v PZ (GD) [2011] NSWADTAP 33
Hearing dates:	13 July 2011
Decision date:	25 July 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Magistrate N Hennessy, Deputy President P Molony, Judicial Member Dr B Field, Non-Judicial Member
Decision:	The decision of the Tribunal is affirmed.
Catchwords:	APPEAL - accommodation and access decision made by Public Guardian - appeal on question of law and for leave to extend to the merits - procedural fairness, findings of fact without evidence - inadequate reasons
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Cases Cited:	Absolon v NSW TAFE [1999] NSWCA 311 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Bar-Mordecai v Rotman [2000] NSWCA 123 Beale v GIO (1997) 48 NSWLR 430 K v K [2000] NSWSC 1052 Mifsud v Campbell (1991) 21 NSWLR 725 Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 Re R [2000] NSWSC 886 S v S [2001] NSWSC 146 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Texts Cited:	Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition, Lawbook Co 2009
Category:	Principal judgment
Parties:	TF (Appellant) PZ (First Respondent) NSW Trustee and Guardian (Second Respondent) TG (Third Respondent)
Representation:	E Stolier (Third Respondent) TF (Appellant in person) PZ (First Respondent in person)
File Number(s):	119011
Publication restriction:	S 126 of the Administrative Decisions Tribunal Act applies
Decision under appeal	Citation: PZ v NSW Trustee and Guardian [2011] NSWADT 48 Date of Decision: 2011-03-10 00:00:00 Before: S Leal, Judicial Member File Number(s): 093343