ZWA v ZWB [2022] NSWCATAP 113

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZWA v ZWB [2022] NSWCATAP 113 Hearing dates: 3 December 2021 Date of orders: 13 April 2022 Decision date: 13 April 2022 Jurisdiction: Appeal Panel Before: J S Currie, Senior Member J D'Arcy, Senior Member S Taylor, Senior Member Decision: 1. The appeal is allowed. 2. The guardianship application is remitted to the Guardianship Division for re-hearing by a differently constituted tribunal. 3. The guardianship orders made on 12 August 2021 are to continue in force until further order of Guardianship Division. Catchwords: APPEALS – Civil and Administrative Tribunal (NSW) – appeal from Guardianship Division. GUARDIANSHIP- Appointment criteria for guardian –misapplication of statutory criteria for appointment- choice of guardian determined by "dispute resolution" process based on perceived family consensus. Errors of law: identifying wrong issue, asking wrong question, failure to take into account mandatory considerations. Appeal allowed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) sections 36 (1),(2), 37, 38 (2), 80 (2). Civil and Administrative Tribunal Rules 2014 (NSW); Rules 13(4)(a), 25(4)(c), 25(4A). Guardianship Act 1987 (NSW) sections 4, 15 (3), 16 (1), 17 (1). Cases Cited: BHP Billiton Ltd v Dunning [2013] NSWCA 421 Collins v Urban [2014] NSWCATAP 17 Cominos v Di Rico [2016] NSWCATAP 5 CS and MY v The Guardianship Tribunal and Public Guardian (Unreported, Supreme Court NSW, Windeyer J., 29.11.99) DCA v Public Guardian [2017] NSWCATAD 364 FGE (2) [2012] NSWGT 3 (16 March 2012) George Papazachariou v Michael Antoun [2015] NSWCATAP 157 Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 W v G [2003] NSWSC 1170 WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 WPC [2020] NSWCATGD 83, ZAN v The Public Guardian [2016] NSWCATAP 20 ZGB v ZGC [2018] NSWCATAP 58 ZVS v ZVT [2022] NSWCATAP 71 Category: Principal judgment Parties: ZWA (Appellant) ZWB (First Respondent) ZWC (Second Respondent) ZWD (Third Respondent) Public Guardian (Fourth Respondent) Representation: Nil File Number(s): 2021/00265950 Publication restriction: Decisions of the Appeal Panel in respect of orders of the Guardianship Division of the Tribunal have been anonymized to remove any information that may identify any person involved in the Tribunal's proceedings. The publication of the name of any of the parties (other than the Public Guardian) or other people referred to in this decision including the publication of any information, or other material that identifies them or is likely to lead to their identification, is prohibited: Civil and Administrative Tribunal Act 2013, section 65. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Nil Date of Decision: 12 August 2021 Before: C Cody, Senior Member Dr C Pratten, Senior Member S Bullock, General Member File Number(s): 2021/ 00178800