YFB v YFC [2023] NSWCATAP 337

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YFB v YFC [2023] NSWCATAP 337 Hearing dates: 10 August 2023 Date of orders: 21 December 2023 Decision date: 21 December 2023 Jurisdiction: Appeal Panel Before: C P Fougere, Principal Member J D'Arcy, Senior Member C Kennedy, General Member Decision: 1. The appeal is allowed. 2. The decision of the Tribunal on 12 April 2023 to dismiss the application for a guardianship order is set aside. 3. The application for the appointment of a guardianship order is remitted to the Tribunal for reconsideration on the basis of the evidence that was before the Tribunal at the hearing on 12 April 2023 and any fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Tribunal. This may include evidence from the Solicitor in relation to the making of the 2021 enduring guardianship instrument. Catchwords: APPEAL – Guardianship Division – whether breach of procedural fairness – whether appellant should have been offered adjournment – adjournment of other proceedings so that witness available to give evidence – appeal allowed. Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 4, 32(4), 36(1), 38(2), 38(5)(c), 65(1),65(3), 80(2)(b), 80(3), 81; Sch 6, cl 5(1) Guardianship Act 1987 (NSW), ss 3, 3(1), 4, 6I(1), 14(1)-(2), 14(2)(a), 14(2)(d) Cases Cited: Brown v A Hambridge & G Riog Pty Ltd [2022] NSWCATAP 134 Cominos v Di Rico [2016] NSWCATAP 5 Italiano v Carbone [2005] NSWCA 177 John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 Roach v Swain [2021] NSWCATAP 258 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Tiwari v Champion Homes Sales Pty Ltd [2016] NSWCATAP 73 Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 ZND v ZNE [2020] NSWCATAP 34 ZTO v Central Coast Local Health District [2021] NSWCATAP 160 Texts Cited: None cited. Category: Principal judgment Parties: YFB (Appellant) YFC (First Respondent) Public Guardian (Second Respondent) YFS (Third Respondent) Representation: Nil File Number(s): 2023/00159351 Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 12 April 2023 Before: N Jones, Senior Member (Legal) Dr W Longley, Senior Member (Professional) F Given, General Member (Community) File Number(s): 2023/00051300