VJC v NSC - [2005] QSC 68

SUPREME COURT OF QUEENSLAND

CITATION:

VJC v NSC [2005] QSC 068

PARTIES:

VJC
(applicant)
v
NSC
(respondent)

FILE NO:

BS 9924/04

DIVISION:

Trial

PROCEEDING:

Application

DELIVERED ON:

6 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

10 March 2005

JUDGE:

Wilson J

ORDER:

Application dismissed.

CATCHWORDS:

MENTAL HEALTH – GUARDIANS, COMMITTEES ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where applicant and respondent are the mother and father of an intellectually disabled adult – where mother and father are divorced – where the intellectually disabled adult has lived with the respondent since he was a boy of 10 years - where the respondent has been appointed guardian by the Guardianship and Administration Tribunal – where the intellectually disabled adult resides with the respondent and spends every second weekend as well as three weeks holiday per year with the applicant – where the intellectually disabled adult works five days per week at the Endeavour Foundation – where the applicant seeks an order granting her access to the intellectually disabled adult two consecutive week days each week – where the application is brought in the parens patriae jurisdiction of the Court

Guardianship and Administration Act 2000, ss 17, 18, 28, 29, 90, 101, 104, 107, 109, 138, 240, 241, schedule 2
Supreme Court Act 1995, s 201

C v C [2001] QSC 126, cited
Ex parte Cranmer (1806) 12 Ves Jun 445; 33 ER 168, cited
Hodak v Newman (1993) 17 Fam LR 1, cited
Re D (A Lunatic Patient) (No 2) [1926] VLR 467 at 477-478, cited
Re Evelyn (1998) 17 Fam LR 53, cited
Re Magavalis [1983] 1 QdR 59 at 61, cited
Rice v Miller (1993) 16 Fam LR 970, cited

SOLICITORS:

Both applicant and respondent appeared (by telephone) without legal representation.

JWILSON : The applicant and the respondent are the mother and father respectively of JFC, an intellectually disabled adult. By an originating application filed on 15 November 2004 the applicant sought leave to appeal against a decision of the Guardianship and Administration Tribunal given on 14 November 2003 by which the respondent was appointed guardian of JFC, or alternatively an order granting her access to JFC 2 consecutive week days each week. On the hearing of the application the applicant did not pursue leave to appeal against the Tribunal decision.

JFC was born on 11 February 1970. When he was 5 weeks old, he contracted bacterial meningitis and was left with physical and intellectual disabilities. He is mildly to moderately mentally retarded, with a full scale IQ below the first percentile. He has significant visual, spatial, planning and organisation deficits, and his capacity for verbal learning and memory is severely impaired.

The applicant and the respondent separated in 1980 (when JFC was aged 10), and were subsequently divorced. JFC and his 4 siblings remained with the respondent, who in due course obtained a custody order. The respondent remarried in 1996. JFC has always lived with the respondent. The household presently comprises the respondent (his…

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 VJC v NSC

Details

AGLC: VJC v NSC [2005] QSC 68
Case: [2005] QSC 68
Decision Date: 6 April 2005

CaseChat Overview and Summary

The case of VJC v NSC involved the parents of an intellectually disabled adult, with the mother (VJC) and the father (NSC) being the parties in dispute. The mother sought an order from the court to increase her visitation rights with her adult child, who currently lives with the father and has a structured visitation arrangement. The father, who has been appointed as the guardian by the Guardianship and Administration Tribunal, opposed the mother's application, arguing that the current arrangement is in the best interests of the intellectually disabled adult.

The legal issues before the court were whether the existing visitation arrangement should be altered to allow the mother two consecutive days of visitation each week, and if so, whether such an order would be in the best interests of the intellectually disabled adult. The court had to consider various factors, including the principles of maximum participation, minimal limitations, substituted judgment, maintenance of existing supportive relationships, maintenance of environment and values, appropriateness to the circumstances, and confidentiality. The court had to weigh these factors in the context of the intellectually disabled adult's current living arrangement, work schedule, and the dynamics of the relationship between the parties.

In delivering its decision, the court considered the intellectually disabled adult's current living and visitation arrangement, which it found to be well-structured and in line with the principles of maximum participation and minimal limitations. The court found that the existing arrangement provided the intellectually disabled adult with a stable environment and supportive relationships, and that altering it could potentially disrupt these factors. The court also noted that the intellectually disabled adult appeared content with the current arrangement, which was an important consideration under the substituted judgment principle. Ultimately, the court concluded that the existing visitation arrangement was appropriate to the intellectually disabled adult's circumstances and in their best interests. The court dismissed the mother's application.

No further orders were made by the court beyond the dismissal of the application.

Orders

Orders of the court

Application dismissed.

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

Maximum participation, minimal limitations and substituted judgment Maintenance of existing supportive relationships Maintenance of environment and values Appropriate to circumstances Confidentiality

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	VJC v NSC [2005] QSC 068
PARTIES:	VJC (applicant) v NSC (respondent)
FILE NO:	BS 9924/04
DIVISION:	Trial
PROCEEDING:	Application
DELIVERED ON:	6 April 2005
DELIVERED AT:	Brisbane
HEARING DATE:	10 March 2005
JUDGE:	Wilson J
ORDER:	Application dismissed.
CATCHWORDS:	MENTAL HEALTH – GUARDIANS, COMMITTEES ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where applicant and respondent are the mother and father of an intellectually disabled adult – where mother and father are divorced – where the intellectually disabled adult has lived with the respondent since he was a boy of 10 years - where the respondent has been appointed guardian by the Guardianship and Administration Tribunal – where the intellectually disabled adult resides with the respondent and spends every second weekend as well as three weeks holiday per year with the applicant – where the intellectually disabled adult works five days per week at the Endeavour Foundation – where the applicant seeks an order granting her access to the intellectually disabled adult two consecutive week days each week – where the application is brought in the parens patriae jurisdiction of the Court Guardianship and Administration Act 2000, ss 17, 18, 28, 29, 90, 101, 104, 107, 109, 138, 240, 241, schedule 2 Supreme Court Act 1995, s 201 C v C [2001] QSC 126, cited Ex parte Cranmer (1806) 12 Ves Jun 445; 33 ER 168, cited Hodak v Newman (1993) 17 Fam LR 1, cited Re D (A Lunatic Patient) (No 2) [1926] VLR 467 at 477-478, cited Re Evelyn (1998) 17 Fam LR 53, cited Re Magavalis [1983] 1 QdR 59 at 61, cited Rice v Miller (1993) 16 Fam LR 970, cited
SOLICITORS:	Both applicant and respondent appeared (by telephone) without legal representation.