NSM [2020] NSWCATGD 84

NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSM [2020] NSWCATGD 84 Hearing dates: 04 August 2020 Date of orders: 04 August 2020 Decision date: 04 August 2020 Jurisdiction: Guardianship Division Before: C P Fougere, Principal Member Decision: The guardianship order for NSM made on 1 August 2019 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 4 August 2020. 3. This is a limited guardianship order giving the guardian(s) custody of NSM to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access NSM has to others and the conditions of access. b) Accommodation To decide where NSM may reside. c) Health care To decide what health care NSM may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NSM is not capable of giving a valid consent. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NSM to an understanding of the issues and to obtain and consider their views before making significant decisions. Catchwords: GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(e), 4(g), 14, 14(1)-(2), 14(2)(a)(i), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(b), 25C, Pt 5 Cases Cited: Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 IF v IG [2004] NSWADTAP 3 IR v AR [2015] NSWSC 1187 Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 P v NSW Trustee and Guardian [2015] NSWSC 579 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 ZKF v ZKG [2019] NSWCATAP 64 Texts Cited: NSW Civil and Administrative Tribunal, Message from the President, "Temporary changes to NCAT operations", 10 July 2020, https://ncat.nsw.gov.au/documents/covid-19/message-from-the-president-10-july-2020-coronavirus-covid-19.pdf, accessed 3 November 2021 Category: Principal judgment Parties: 007: Review of Guardianship Order