TJC - [2007] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: TJC [2007] WASAT 105

MEMBER: MS F CHILD (MEMBER)
MR J MANSVELD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 1 AUGUST 2006, 13 SEPTEMBER 2006, 28 NOVEMBER 2006, 26 FEBRUARY 2007

DELIVERED : 10 MAY 2007

FILE NO/S: GAA 1449 of 2006
GAA 1448 of 2006

BETWEEN: TJC
Represented Person

Catchwords:

Guardianship and Administration – Guardianship – Represented person with acquired brain injury from birth – Cross applications for the appointment of a guardian – Allegations of neglect – Need for a guardian – Need for certainty as to authority for decision-making – Need to determine the contact with family living in New South Wales – Mother and direct carer appointed for personal decision making other than contact – Public Advocate appointed to determine contact with others – Recognition of orders made in Western Australia

Legislation:

Guardianship Act 1987 (NSW)
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 43(1)(c), s 44(5)
State Administrative Tribunal Act 2004, s 77

Result:

Applicant mother appointed limited guardian to determine where the represented person is to live and to consent to medical treatment and services on his behalf
The Public Advocate appointed limited guardian to determine the contact the represented person has with others

Category: B

Representation:

Counsel:

Represented Person : Mr S Jones

Solicitors:

Represented Person : Shaddicks Lawyers

Case(s) referred to in decision(s):

TC [2006] WASAT 369

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The mother of a 19‑year‑old man, who had suffered a severe brain injury at birth, was appointed his limited guardian by the State Administrative Tribunal to decide where he was to live, with whom he was to live, and to consent to medical treatment and services on his behalf. Because of intense conflict between the mother and some other family members, including the father of the young man, the Tribunal also appointed the Public Advocate as his limited guardian to determine the contact he should have with his family in New South Wales, including his father and grandmother.
The guardianship appointments were made in the context of longstanding conflict between the parents of the young man, and between his mother and paternal grandmother as to where he should live and the arrangements for his care. The Tribunal decided that there was a need for a guardian to provide certainty about who had authority to make decisions for him and to determine the contact he had with other family members.
The Tribunal did not follow the recommendation of the Public Advocate's representative to appoint the Public Advocate as his plenary guardian. The Tribunal accepted that the mother had experienced difficulties in the past in managing the young man's care needs. In particular, there had been a lack of continuity in his dental care and the recommended specialist monitoring of his epilepsy. Despite this, the Tribunal was not persuaded that it was necessary to appoint…

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: TJC [2007] WASAT 105
Case: [2007] WASAT 105
Decision Date: 10 MAY 2007

CaseChat Overview and Summary

The case involved an application by TJC, who suffered from an acquired brain injury from birth, to appoint a guardian to assist with decision-making. The parties in dispute were the applicant, TJC, and their mother, who had been their primary carer. The matter was heard in the Supreme Court of Western Australia. The court was required to decide whether a guardian was necessary for TJC and, if so, to determine the scope of the guardianship, including the authority to make decisions about contact with family members living in New South Wales.

The legal issues that the court had to address were whether TJC required a guardian for decision-making and, if so, who should be appointed and for what purpose. The court had to consider the evidence presented regarding TJC's ability to make decisions, the need for certainty in decision-making, and the implications of cross-border family contact. The court also had to consider the appropriate balance between TJC's autonomy and the need for protection.

The court found that TJC required a guardian for decision-making purposes, and it was in their best interests for their mother to be appointed as the guardian for personal decision-making, excluding decisions about contact with family members. The court appointed the Public Advocate to determine the contact with family members living in New South Wales, recognising the orders made in Western Australia. The court emphasised the importance of providing certainty in decision-making for TJC while respecting their autonomy as much as possible.

The final orders of the court were the appointment of TJC's mother as the guardian for personal decision-making, excluding decisions about contact with family members. The Public Advocate was appointed to determine the contact with family members living in New South Wales. The court also recognised the orders made in Western Australia regarding the contact with family members.

Orders