TFC - [2015] NSWCATGD 49

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TFC [2015] NSWCATGD 49
Hearing dates: 17 August 2015
Date of orders: 17 August 2015
Decision date: 17 August 2015
Jurisdiction: Guardianship Division
Before: J Anderson, Senior Member (Legal)
M Wroth, Senior Member (Professional)
E Pickering, General Member (Community)
Decision:
Guardianship order made; public guardian appointed for 12 months to make decisions about accommodation, services, health care and medical and dental treatment.
Financial management order made; NSW Trustee and Guardian appointed; order to be reviewed in 12 months.
Catchwords:
GUARDIANSHIP – application for a guardianship order – subject person is 18 years old previously under the care of the Minister – subject person is an involuntary patient at a mental health unit – consideration of factors in section 14 of the Guardianship Act 1987 – whether subject person was ‘a person in need of a guardian’ – history of involvement with juvenile justice and mental health jurisdictions – consideration of subject person’s vulnerability – guardian appointed
FINANCIAL MANAGEMENT – application for a financial management order – capability to manage own affairs – need for a financial management order – best interests – young age and capacity to develop living skills – reviewable order made
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, and 25M
Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW), s 59
NSW Trustee and Guardian Act 2009 (NSW), s 71(2)
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: Ms TFC (subject person)
Ms TVH (applicant)
The Public Guardian
The NSW Trustee and Guardian
Representation: Ms Kellie Stares (separate representative for Ms TFC)

File Number(s): 59521
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a 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 appointed the Public Guardian as Ms TFC's guardian for a period of 12 months to make decisions on her behalf about her accommodation, services, health care, and medical and dental treatment as set out in the Tribunal's Order; and
The Tribunal made a financial management order appointing the NSW Trustee and Guardian as financial manager of Ms TFC's estate for review in 12 months; and
The Tribunal recommended the NSW Trustee and Guardian, at a time and in circumstances it considers appropriate give consideration to authorising Ms TFC to manage so much of her financial affairs as the NSW Trustee and Guardian considers appropriate.

Background

Ms TFC is an 18-year old woman who at the time of the Tribunal hearing was an involuntary patient at a mental health unit of a public hospital in Regional NSW. Prior to this, Ms TFC had been at an adolescent…

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: TFC [2015] NSWCATGD 49
Case: [2015] NSWCATGD 49
Decision Date: 17 August 2015

CaseChat Overview and Summary

The matter before the court involved an application for a guardianship order for an 18-year-old subject person who had previously been under the care of the Minister and was currently an involuntary patient at a mental health unit. The court was required to consider whether the subject person was in need of a guardian under the Guardianship Act 1987, taking into account the factors outlined in section 14. The court was also tasked with deciding whether a financial management order should be made, considering the subject person's capability to manage their own affairs and their best interests.

The subject person had a history of involvement with the juvenile justice system and the mental health jurisdiction. The court examined the individual's vulnerability and assessed whether they required a guardian to make decisions on their behalf. Additionally, the court considered the need for a financial management order, taking into account the subject person's young age, capacity to develop living skills, and the importance of having an order that could be reviewed in the future. The court determined that a guardianship order was necessary and appointed the public guardian for a period of 12 months to make decisions about accommodation, services, health care, and medical and dental treatment. Furthermore, a financial management order was made with the NSW Trustee and Guardian appointed, with the order set to be reviewed in 12 months.

The court's reasoning was based on the subject person's history and current circumstances, which demonstrated a need for ongoing support and assistance in making important decisions. The court concluded that the subject person was indeed in need of a guardian and that a financial management order was necessary to ensure their best interests were protected. The orders made by the court aimed to provide the subject person with the necessary support and guidance to navigate their future challenges and promote their well-being.

The court's final orders included the appointment of a public guardian for a period of 12 months to make decisions about accommodation, services, health care, and medical and dental treatment for the subject person. Additionally, a financial management order was made with the NSW Trustee and Guardian appointed, with the order to be reviewed in 12 months. These orders were intended to provide the subject person with the necessary support and guidance to navigate their future challenges and promote their well-being.

Orders

Orders of the court

Guardianship order made; public guardian appointed for 12 months to make decisions about accommodation, services, health care and medical and dental treatment.

Financial management order made; NSW Trustee and Guardian appointed; order to be reviewed in 12 months.

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:	TFC [2015] NSWCATGD 49
Hearing dates:	17 August 2015
Date of orders:	17 August 2015
Decision date:	17 August 2015
Jurisdiction:	Guardianship Division
Before:	J Anderson, Senior Member (Legal) M Wroth, Senior Member (Professional) E Pickering, General Member (Community)
Decision:	Guardianship order made; public guardian appointed for 12 months to make decisions about accommodation, services, health care and medical and dental treatment. Financial management order made; NSW Trustee and Guardian appointed; order to be reviewed in 12 months.
Catchwords:	GUARDIANSHIP – application for a guardianship order – subject person is 18 years old previously under the care of the Minister – subject person is an involuntary patient at a mental health unit – consideration of factors in section 14 of the Guardianship Act 1987 – whether subject person was ‘a person in need of a guardian’ – history of involvement with juvenile justice and mental health jurisdictions – consideration of subject person’s vulnerability – guardian appointed FINANCIAL MANAGEMENT – application for a financial management order – capability to manage own affairs – need for a financial management order – best interests – young age and capacity to develop living skills – reviewable order made
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 14, and 25M Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW), s 59 NSW Trustee and Guardian Act 2009 (NSW), s 71(2)
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:	Ms TFC (subject person) Ms TVH (applicant) The Public Guardian The NSW Trustee and Guardian
Representation:	Ms Kellie Stares (separate representative for Ms TFC)
File Number(s):	59521
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).