Vivian (a pseudonym)

[2025] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Vivian (a pseudonym) [2025] NSWCATGD 4

Hearing dates:

20 June 2025

Date of orders:

20 June 2025

Decision date:

20 June 2025

Jurisdiction:

Guardianship Division

Before:

V Taylor, Senior Member (Legal)
J McAuliffe, Senior Member (Professional)
P A Rutledge AM, General Member (Community)

Decision:

1. A guardianship order is made for Vivian.

2. Kathy of [Address removed for publication.] is appointed as the guardian.

3. Melissa of [Address removed for publication.] is appointed as the alternative guardian.

4. This is a continuing guardianship order for a period of six months from 20 June 2025.

5. This is a limited guardianship order giving the guardian custody of Vivian to the extent necessary to carry out the functions below.

FUNCTIONS: Kathy

6. Kathy has the following functions:

a) Travel

To make decisions about whether or not Vivian can travel to any place outside Australia.

b) Passport

To make a decision about whether or not the passport of Vivian should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel.

CONDITION:

7. The condition of this order is:

a) Standard Condition

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

Catchwords:

GUARDIANSHIP – 32-year-old person with autism and borderline personality disorder – urgent guardianship order sought – person seeking to leave the country to Pakistan that evening – person opposed to guardianship order – evidence that travel to Pakistan is unsafe generally, and particularly in relation to person – concern over lack of supports in Pakistan – short-term guardianship order made for a period of 6 months with travel and passport functions only.

Legislation Cited:

Guardianship Act 1987 (NSW), ss 3(1)-(2), 4,14, 14(2), 17(1)

Cases Cited:

IF v IG [2004] NSWADTAP 3

Texts Cited:

None cited.

Category:

Principal judgment

Parties:

001: Guardianship Application

Vivian (the person)
Andrea (applicant)
Melissa (joined party, proposed guardian)
Kathy (joined party, proposed guardian)
Public Guardian

Representation:

None.

File Number(s):

NCAT 2025/00235976

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: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

What the Tribunal decided

1. The Tribunal appointed Kathy as guardian and Melissa as alternative guardian, for a period of six months, to make decisions about:

• whether or not Vivian can travel to any place outside of Australia; and

• whether or not the passport of Vivian should be surrendered to the guardian or some other authority the guardian nominates, pending a decision by the guardian concerning travel;

as set out in the Tribunal’s order.

Background

2. Vivian is 32 years old and prefers to be known as “Viv” and described with they/them pronouns. We will refer to them as such throughout these reasons.

3. Viv is reported to have diagnoses of autism and borderline personality disorder. They reside at a supported independent living (SIL) accommodation managed by a support services provider, in regional NSW.

4. In an urgent application made to the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT), Andrea, Viv’s mother, requested the Tribunal make a guardianship order (Application). The Application states that the appointment of a guardian is necessary to prevent Viv from leaving Australia to go to Pakistan, on a flight booked to depart that evening.

The hearing

5. Viv attended the hearing, as did their mother Andrea and two sisters Kathy and Melissa. For clarity and with no disrespect intended, we will refer to their family by their first names.

6. A representative of the Public Guardian also attended the hearing, as did these members of Viv’s support team:

1. a support coordinator;

2. a behaviour support practitioner; and

3. joining part way through the hearing, the managing director of the supports services provider which manages the SIL accommodation in which Viv lives.

GUARDIANSHIP APPLICATION

What did we have to decide?

7. The questions we must decide are:

1. Is Viv someone for whom we could make an order because they are a “person in need of a guardian”?

2. Should we make a guardianship order?

3. If so:

1. what functions should the guardian be given?

2. who should be the guardian?

3. how long should the order last?

Is Viv a 'person in need of a guardian'?

8. Section 14 of the Guardianship Act 1987 (NSW) provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is “a person in need of a guardian”.

9. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing their or their person”: Guardianship Act, s 3(1).

10. Section 3(2) of the Guardianship Act defines a person with a disability as a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW); or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that they require supervision or social habilitation (i.e. services to be able to function in the community).

11. The Tribunal reviewed a report from Mr Graham, psychologist and behaviour support practitioner dated 20 December 2022 (2022 Report). The 2022 Report indicates that Viv has autism spectrum disorder and borderline personality disorder. Their history includes suicidal ideation and self-harm; and they experience current, ongoing distress consistent with anxiety and depression and poor mental health. Their medications included anti-depressants.

12. Andrea, Viv’s mother and the applicant, confirmed to the Tribunal that Viv was diagnosed with autism when they were fourteen or fifteen.

13. In response to this, Viv said “I don't agree with that,” and then stated “I do struggle with… it takes me two or three times to meet someone before I know whether they are a good person”. They did not put forward any further evidence.

14. The Tribunal accepts Viv’s own evidence about their lack of insight and struggle to assess risks about people. We also note that Viv has consistently resisted the diagnosis of autism. In the 2022 Report, Viv told Mr Graham that “they were diagnosed with Autism when they were 15 years old by their paediatrician, and they disagreed with this diagnosis”.

15. No-one else in the hearing disagreed with the evidence of Viv’s autism and mental health conditions.

16. We note Viv’s views but prefer the evidence from the 2022 Report, Viv’s family and support team, which provides a consistent view that they have autism, borderline personality disorder and mental health conditions. They also use an electric wheelchair every day to mobilise.

Consideration

17. The Tribunal accepts the medical and supporting evidence provided. We are satisfied that Viv has a disability within the meaning of s 3(2) of the Guardianship Act, being autism, borderline personality disorder and mental health conditions.

18. We find that Viv is a “person who is in need of a guardian” because:

1. they have some cognitive impairment consequent to autism, borderline personality disorder and mental health conditions, which impairs their decision-making ability;

2. as a result of these conditions, Viv is restricted in their decision-making, assessing risk, self-care, problem-solving, mobility and social isolation, such that they need significant assistance and support services; and

3. as a result, they are partially unable to manage their person: Guardianship Act, s 3(1).

Should we make a guardianship order?

19. In deciding whether to make, or not to make, a guardianship order, we must consider each of the matters set out in s 14(2) of the Guardianship Act:

1. the views (if any) of:

1. the person, and

2. the person’s spouse, and

3. the person’s carer, and

2. the importance of preserving the person’s existing family relationships, and

3. the importance of preserving the person’s particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

20. The decision to make or to decline to make a guardianship order under s 14 of the Guardianship Act is a discretionary one, informed by the mandatory considerations listed in s 14(2) of that Act and the general principles set out in s 4 of that Act: IF v IG [2004] NSWADTAP 3 at [36]. The matters set out in s 14(2) of the Guardianship Act have no hierarchy or weighting: IF v IG at [34]. We are not limited to considering those matters: IF v IG at [27].

21. Section 4 of the Guardianship Act provides that, in exercising functions under that Act with respect to people who have disabilities, we must observe the following principles:

1. the welfare and interests of such persons should be given paramount consideration,

2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

3. such persons should be encouraged, as far as possible, to live a normal life in the community,

4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

7. such persons should be protected from neglect, abuse and exploitation,

8. the community should be encouraged to apply and promote these principles.

The views of Viv

22. Viv opposed the making of a guardianship order. They told the Tribunal that they were going to fly to Pakistan that evening because their fiancé is there, but they have now cancelled their flights. They have been in a relationship with a Pakistani resident called Usman since 7 January 2025. They have never met Usman in person, only online. Viv and Usman are now engaged.

23. Viv told the Tribunal that the reason we were all here was because “everyone is concerned for my sanity”. Viv said they partly understood their family’s view that they were not “making the right decision” to fly to Pakistan to see Usman. Viv also told us (twice) this was unfair because their family had never tried to get to know Usman.

24. Viv has met Usman’s cousin Hasaan in person, in Australia. Viv told us that she met Hasaan “at the Easter show, or at another event”, “I think [Hasaan] is the one that mainly wants me to go Pakistan, to meet my future in laws”, because “[Usman]’s mother is elderly and has Parkinsons.”.

25. Viv drew the Tribunal’s attention to the Department of Foreign Affairs (DFAT) Smartraveller website which provides official travel advice. Viv told us that the ‘advice level’ for Pakistan is ‘Level 3: Reconsider your need to travel’. Viv considers that this is not the most serious advice level, which would be ‘Level 4: Do no travel.’ In their view, the DFAT advice means that there is no absolute prohibition on travel to Pakistan, and they can still travel there, providing they have thought twice over about their need to travel.

26. The Tribunal subsequently reviewed the Smartraveller website and noted that DFAT provides further detail:

1. for level 3: “Avoid non-essential travel. At level 3, there are serious and potentially life-threatening risks. This can make the destination unsafe for tourism and unsuitable for most travellers.”;

2. for Pakistan: “We advise: Reconsider your need to travel to Pakistan overall due to the volatile security situation and threat of terrorism, kidnapping, violent crime and the risk of civil unrest.”; and

3. for overlapping risks: “Different aspects of your identity can expose you to overlapping forms of discrimination and increase the risks you might face. This is sometimes referred to as intersectionality. Aspects of your identity can include your: … nationality …gender…mental health.”

27. Noting that Viv themselves raised the DFAT Smartraveller advice in the hearing, we accept that it is relevant. We find that there are “serious and potentially life-threatening risks” for current travel to Pakistan in general; and that there are overlapping or intersectional risks which are very likely to apply to Viv in particular.

The views of Andrea, Melissa and Kathy

28. Andrea is Viv’s mother and the applicant. She answered the Tribunal questions in a clear and measured way. She told us that she had made the Application because she believed that Viv was about to fly out to Pakistan to marry Usman. She considers that Pakistan is potentially an unsafe place for Viv; and that Viv was leaving behind a very supportive environment. Her concern is that Viv is very vulnerable and is under pressure from Hasaan to travel to Pakistan. She proposed Melissa and Kathy as the guardians.

29. Andrea also told us that in her view, an urgent guardianship order should still be made, in case Viv rebooks the flights. She said that Viv often trusts people too much, trusts the wrong people and has a history of providing the reassurance which people want to hear, and then going ahead with their plans.

30. Melissa is Viv’s younger sister. She told the Tribunal that even if Viv had cancelled their flight to Pakistan for that evening, a guardianship order should still be made, because she had known Viv to tell different stories and change plans at the last minute. She was concerned that Viv might book flights again in the near future.

31. Melissa said that she was “genuinely terrified” for her sister, about how they might be treated in Pakistan. Because of their conditions, Viv can be dysregulated and act inappropriately. Melissa told us about a recent incident where six police officers were required to restrain Viv. In her view, there was a risk that in a foreign country, Viv might become dysregulated and not be treated with care.

32. Kathy is Viv’s older sister. She agreed that a guardianship order should still be made and was still urgent, even if Viv had cancelled the flights for that evening. In her view, Viv is very trusting of men, and Kathy was concerned that someone might take advantage of them. In Pakistan, Viv would have no support network. Kathy told us that she had not had any contact with Usman’s family.

33. The Tribunal also reviewed an undated support letter from Hasaan, entitled “Miss [Vivian] Trip to Pakistan”. In the letter, he states that he, Usman and their family will welcome Viv; he will accompany Viv and “ensure her safety”; he has paid for his own flights; while acknowledging that Pakistan is “a country with a complicated reputation”, Lahore is a peaceful international city; and he will ensure Viv’s return to Australia on 30 June 2025, as planned.

34. This letter of support from Hasaan was undated, unsigned and did not provide an address. Andrea expressed some concern about its provenance. We find that this letter does not advance matters in issue and give it little weight. Neither Hasaan nor Usman attended the hearing.

The importance of preserving the person’s existing family relationships and particular cultural and linguistic environments

35. Viv is well supported by their family, although it is also clear that there are some complexities in their existing family relationships. Andrea explained that she had proposed Melissa and Kathy as the guardians, in order to protect Viv and to ensure that there was a balance of views. Towards the end of the hearing, Viv shouted at Melissa and appeared to blame her because this was the first time they had spoken in a long time.

36. The making of a guardianship order is likely to place the relationship between Viv and the guardian under further strain. This is because Viv is mostly resistant to a guardianship order which will prevent them from travelling. The Tribunal considered carefully the extent to which any tension between Viv and the guardian would be exacerbated by the making of an order.

37. There was no evidence before us that exercising the discretion to make or not make a guardianship order would have any material impact on Viv’s linguistic and cultural environments.

The practicality of services being provided without a guardianship order

38. The behaviour support practitioner has been working with Viv as their behaviour support practitioner since January 2024. He agreed that a guardianship order was urgent and should still be made. The behaviour support practitioner indicated that he was concerned that in Pakistan, Viv would not be provided with services and would be entirely dependent on Usman; there were no contingency plans, including for managing their electric wheelchair which they mobilise with every day.

39. He also told us that this was the second time Viv had booked flights to fly out to Pakistan. Previously, Viv had flights booked to depart for Pakistan on 24 May 2025, but subsequently, on discussion with their support team, they had started to question that decision and had either cancelled or altered the flights.

40. The support coordinator has been working with Viv as their support coordinator for three years. She agreed that a guardianship order should be made. She told the Tribunal that Viv has a substantial National Disability Insurance Scheme (NDIS) support plan, that those services could not be provided to Viv in Pakistan, and she would be very concerned about how Viv would cope with less support.

41. The managing director of the supports services provider which manages the SIL accommodation in which Viv lives joined the hearing part way through and told the Tribunal that services would continue to be provided to Viv that night, there would be a support worker with them, and they would be safe.

Consideration

42. We considered carefully whether the Tribunal should exercise the discretion to make a guardianship order.

43. These factors weigh against the granting of a guardianship order:

1. Viv expressed opposition to a guardianship order and we take their views seriously;

2. it is a mandatory consideration that Viv’s freedom of decision and freedom of action should be restricted as little as possible: Guardianship Act, s 4; and

3. we also acknowledge that in the hearing, in response to the Tribunal’s questions, Viv showed a degree of insight and recognised their family’s concern for their safety.

44. But on balance, we decided to make a guardianship order because:

1. safety concerns about travel – we find that there are significant safety concerns about current travel to Pakistan in general; and that there are overlapping or intersectional risks which are very likely to apply to Viv in particular;

2. vulnerability – we find that Viv is vulnerable and accept the evidence (including Viv’s own evidence) about their quick trust and lack of insight about people, and their inability to assess and weigh risk and safety. We find that this makes Viv especially vulnerable in the context of pressure from Hasaan to travel to Pakistan, and the entirely online relationship and potential marriage with Usman;

3. lack of insight – we were also satisfied that, despite acknowledging their family’s concerns in the hearing, overall Viv continues to demonstrate very poor insight into their vulnerability, as well as consistently poor or impaired judgment regarding their exposure to exploitation and associated financial and personal risks;

4. reliance on services – we also accept the evidence of Viv’s support team, which provides a consistent view that they rely on a substantial package of supports, which they would be without if they travel overseas. We consider that a guardianship order would facilitate the continued provision of services in a sustainable and ongoing way; and

1. currency of risk – although Viv told us that they have cancelled their flights, we find that the above risks remain current. We accept the evidence that Viv has recently rebooked flights to Pakistan and may do so again.

45. We decided to make a guardianship order for Viv because we were satisfied that they are a person in need of a guardian, and that this decision gives paramount consideration to their welfare and interests.

What functions should the guardian be given?

46. We decided to give the guardian the functions of travel and passport. Decisions about each of these matters are very likely to be required immediately.

Who should be the guardian?

47. Andrea proposed Melissa and Kathy as the guardians for Viv, and she was also not opposed to the Public Guardian being appointed.

48. To appoint Kathy as guardian and Melissa as an alternative guardian, we must be satisfied that they meet the criteria in s 17(1) of the Guardianship Act, in that they must:

1. have a personality generally compatible with the personality of Viv;

2. have no undue conflict of interest (particularly financial) between their interest and those of Viv; and

3. be able and willing to exercise the functions of the order.

49. Viv told the Tribunal that if we appointed a guardian, Kathy should be appointed, with Melissa as an alternative guardian. Viv was very opposed to the Public Guardian being appointed.

50. We find that Melissa and Kathy have personalities which are generally compatible with the personality of Viv.

51. There was no evidence before the Tribunal about any conflicts, including financial conflicts, that would prejudice either Melissa and Kathy. The Tribunal heard that both Melissa and Kathy were willing and able to act as guardians, and would work together.

52. We are satisfied that Melissa and Kathy meet the requirements, and we appoint for Viv – Kathy as their private guardian; and Melissa as their alternative guardian.

How long should the order last?

53. The Tribunal decided to make a reviewable order for six months.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

11 August 2025 - In the catchwords in the cover sheet the word "woman" was changed to the word "person."

Decision last updated: 11 August 2025