TZS - [2018] NSWCATGD 27

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TZS [2018] NSWCATGD 27
Hearing dates: 2 February 2018
Date of orders: 02 February 2018
Decision date: 02 February 2018
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
Dr M J Wroth, Senior Member (Professional)
L Stewart, General Member (Community)
Decision:
Guardianship Application

1. A guardianship order is made for TZS.

2. The Public Guardian and NZN are appointed separately as the guardians.

3. This is a continuing guardianship order for a period of 12 months from 2 February 2018.

4. This is a limited guardianship order giving the guardian(s) custody of TZS to the extent necessary to carry out the functions below.

FUNCTIONS: NZN

5. NZN has the following functions:

a) Advocacy

To advocate generally for TZS.

b) Accommodation

To decide where TZS may reside.

FUNCTIONS: The Public Guardian

6. The Public Guardian has the following function:

a) Services

To make decisions about services to be provided to TZS including advocacy services to facilitate her eligibility and entitlement to funding from the National Disability Insurance Agency (NDIA).

CONDITION:

7. The condition of this order is:

a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring TZS to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords: GUARDIANSHIP – application for a guardianship order – interstate order – jurisdiction where subject person moving between states – functions of guardian – guardians appointed with separate functions
Legislation Cited: Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2), 17(1)
National Disability Insurance Scheme Act 2013 (Cth), ss 18, 19(1)
National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), r 2.1
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
KCG [2014] NSWCATGD 7
LBL [2016] NSWCATGD 22
Re B [2011] NSWSC 1075
Texts Cited: Nil
Category: Principal judgment
Parties:
Guardianship Application
TZS (the person)
Office of the Public Guardian (applicant)
NZN (joined party)
Public Guardian
Representation: Nil

File Number(s): NCAT 2017/00368024
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Background

TZS is a 37-year-old indigenous woman. She currently resides in regional NSW. Previously, TZS lived in Queensland.
TZS is reported to have been diagnosed with borderline personality disorder, post-traumatic stress disorder, polysubstance abuse and schizophrenia.
On 13 May 2016, the Queensland Civil and Administrative Tribunal (QCAT) made an order appointing the Queensland Public Guardian as guardian and the Public Trustee of Queensland as financial administrator for TZS.
On 4 December 2017, the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) received a guardianship application in relation to TZS from Ms Jane Caldwell, Regional Manager at the…

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 TZS

Details

AGLC: TZS [2018] NSWCATGD 27
Case: [2018] NSWCATGD 27
Decision Date: 02 February 2018

CaseChat Overview and Summary

In the Supreme Court of Victoria, an application for a guardianship order was made on behalf of TZS, an individual requiring ongoing support and decision-making assistance. The application arose from the need to manage TZS’s care and services, given her inability to manage her personal affairs due to her condition. The Public Guardian and another individual, NZN, were nominated to serve as guardians with specific functions. The case involved jurisdictional considerations, particularly given TZS's mobility between states, and the delineation of the roles and responsibilities of the appointed guardians.

The court was required to determine whether it had the jurisdiction to make a guardianship order over TZS, given her interstate movement. Additionally, it had to decide on the appropriate functions to be allocated to each of the proposed guardians, ensuring that these roles were clearly defined to avoid any potential overlap or conflict in decision-making authority. The court also needed to ensure that the guardianship order would appropriately balance TZS’s autonomy with the necessity for support and protection.

The court found that it had jurisdiction to make the guardianship order, considering the factors related to TZS’s habitual residence and the practicalities of managing her care. It allocated specific functions to each of the guardians to ensure clear delineation of responsibilities. The court appointed NZN to handle advocacy and accommodation decisions, while the Public Guardian was tasked with making decisions about services, including advocacy services to assist TZS in accessing funding from the National Disability Insurance Agency. The court emphasised the importance of involving TZS in decision-making processes, subject to her capacity to understand and participate in those processes.

The court made a guardianship order for TZS, appointing the Public Guardian and NZN as separate guardians with distinct functions. The order was limited to a period of twelve months, reflecting the need for periodic reassessment of TZS’s care arrangements. Each guardian was assigned specific roles to avoid any conflict of interest and to ensure that TZS received comprehensive and coherent support. The guardians were also required to take reasonable steps to involve TZS in decision-making processes to the extent of her capacity.

Orders

Orders of the court

Guardianship Application

1. A guardianship order is made for TZS.

2. The Public Guardian and NZN are appointed separately as the guardians.

3. This is a continuing guardianship order for a period of 12 months from 2 February 2018.

4. This is a limited guardianship order giving the guardian(s) custody of TZS to the extent necessary to carry out the functions below.

FUNCTIONS: NZN

5. NZN has the following functions:

a) Advocacy

To advocate generally for TZS.

b) Accommodation

To decide where TZS may reside.

FUNCTIONS: The Public Guardian

6. The Public Guardian has the following function:

a) Services

To make decisions about services to be provided to TZS including advocacy services to facilitate her eligibility and entitlement to funding from the National Disability Insurance Agency (NDIA).

CONDITION:

7. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring TZS to an understanding of the issues and to obtain and consider her views before making significant decisions.

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:	TZS [2018] NSWCATGD 27
Hearing dates:	2 February 2018
Date of orders:	02 February 2018
Decision date:	02 February 2018
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) Dr M J Wroth, Senior Member (Professional) L Stewart, General Member (Community)
Decision:	Guardianship Application 1. A guardianship order is made for TZS. 2. The Public Guardian and NZN are appointed separately as the guardians. 3. This is a continuing guardianship order for a period of 12 months from 2 February 2018. 4. This is a limited guardianship order giving the guardian(s) custody of TZS to the extent necessary to carry out the functions below. FUNCTIONS: NZN 5. NZN has the following functions: a) Advocacy To advocate generally for TZS. b) Accommodation To decide where TZS may reside. FUNCTIONS: The Public Guardian 6. The Public Guardian has the following function: a) Services To make decisions about services to be provided to TZS including advocacy services to facilitate her eligibility and entitlement to funding from the National Disability Insurance Agency (NDIA). CONDITION: 7. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring TZS to an understanding of the issues and to obtain and consider her views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for a guardianship order – interstate order – jurisdiction where subject person moving between states – functions of guardian – guardians appointed with separate functions
Legislation Cited:	Guardianship Act 1987 (NSW), ss 3(1)–(2), 4, 14, 14(2), 17(1) National Disability Insurance Scheme Act 2013 (Cth), ss 18, 19(1) National Disability Insurance Scheme (Becoming a Participant) Rules 2016 (Cth), r 2.1
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 KCG [2014] NSWCATGD 7 LBL [2016] NSWCATGD 22 Re B [2011] NSWSC 1075
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Guardianship Application TZS (the person) Office of the Public Guardian (applicant) NZN (joined party) Public Guardian
Representation:	Nil
File Number(s):	NCAT 2017/00368024
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).