NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YGC [2014] NSWCATGD 41 Hearing dates: 27 November 2014 Decision date: 27 November 2014 Jurisdiction: Guardianship Division Before: Tearle B, Senior Member (Legal) McPhee B, Senior Member (Professional) Stewart L, General Member (Community) Decision: Financial management order revoked. Catchwords: FINANCIAL MANAGEMENT - review of financial management order - conflicting authorities - young person under the parental responsibility of the Minister - order revoked on best interests grounds. Legislation Cited: Children (Care and Protection) Act 1987 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Category: Principal judgment Parties: Ms YGC (subject person) NSW Trustee and Guardian Representation: Separate representative for Ms YGC File Number(s): 57281 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 (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). reasons for decision Review Details 1This review was ordered by the Tribunal when it made the financial management order on 29 August 2014 in relation to Ms YGC What the Tribunal decided 2The Tribunal revoked the financial management order it made on 29 August 2014 in relation to Ms YGC. The Tribunal ordered the NSW Trustee and Guardian to pay Ms YGC's estate to the Minister for Family and Community Services on behalf of Ms YGC. THE EVIDENCE AND THE TRIBUNAL'S REASONING Background to this review 3Ms YGC, who is 17 years old, is currently a resident of a secure residential facility in Sydney, managed by the Intensive Support Service of the Department of Family and Community Services. Ms YGC is reported to have a mild intellectual disability, a major depressive disorder, a reactive attachment disorder, and an attention deficit hyperactivity disorder 4In early 1999, the Children's Court made a final order declaring Ms YGC to be a ward under the Children (Care and Protection) Act 1987 (NSW). As provided for by the applicable transitional provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Minister for Family and Community Services currently has the relevant parental responsibility. That order remains in force until Ms YGC attains the age of 18 years in late 2015. 5On 29 August 2014, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) made a financial management order, and committed the management of Ms YGC's financial affairs to the NSW Trustee and Guardian. At that time, the Tribunal ordered that the financial management order be reviewed within three months. Ms YGC's whereabouts were unknown at the time of the hearing on 29 August 2014, and she did not participate in that hearing. Conduct of the hearing on 27 November 2014 6Ms YGC participated in the hearing by telephone from the residential facility, where she was supported by Ms UAN, Acting Manager Case Work, and Ms FBQ, Case Worker with the Department of Family and Community Services. Her separate representative was present for the hearing at the Tribunal's Balmain premises. 7Ms Z, a Solicitor with the Child and Family Advocacy Service of Legal Aid NSW, wrote to the Tribunal on 25 November 2014, advising that she is Ms YGC's separate representative in current proceedings before the Supreme Court of NSW. Ms Z indicated that she would like to participate in the proceedings before this Tribunal. In the in the early stages of the hearing on 27 November 2014, Ms Z, who participated by telephone, confirmed that she did not seek leave to represent Ms YGC in these proceedings. 8The Tribunal had before it a report prepared by a representative of the Office the NSW Trustee and Guardian. However, the Tribunal was not successful in its attempts to make contact with the representative by telephone during the hearing. 9A list of the parties to the review and witnesses at the hearing is contained in an appendix to these Reasons for Decision [Appendix removed for publication]. What did the Tribunal have to decide? 10On reviewing the financial management order made for Ms YGC, the Tribunal must take one of three actions. It must confirm, revoke or vary the financial management order. In doing so it must act to achieve the best interests of Ms YGC. 11The Tribunal may revoke the financial management order only if: * it is satisfied that Ms YGC is capable of managing her affairs; or * it considers that it is in the best interests of Ms YGC that the order be revoked. Is Ms YGC capable of managing her financial affairs? 12The representative of the NSW Trustee and Guardian prepared a report on 27 November 2014, in which he indicated that the NSW Trustee and Guardian was holding $4,610 in its trust account on behalf of Ms YGC. Ms YGC also has a total of $140 in two separate accounts with a local bank. 13The representative from the NSW Trustee and Guardian reported that the NSW Trustee and Guardian had withdrawn funds of $2,737 from one of Ms YGC's bank accounts, and had deposited that money into the relevant trust account on 25 September 2014. Ms YGC's Centrelink income has been redirected to that trust account. 14Ms UAN, Acting Manager Case Work with the Department of Family and Community Services, advised in a report prepared on 26 November 2014 that Ms YGC had absconded from the residential facility on 25 August 2014. It later emerged that, after Ms YGC absconded from the residential facility, she had purchased a motorbike for a male friend whom she had just met. Further, Ms YGC had purchased alcohol, drugs and food for people whom she had met during the period when she had absconded from the residential facility. 15In her written report, Ms UAN also alluded to the possibility that Ms YGC might receive some funds by way of victims compensation. 16Ms UAN expressed the view that Ms YGC has no concept of money or how to manage it, and she has no budgeting skills. Ms FBQ, Ms YGC's Case Worker with the Department of Family and Community Services, also said that Ms YGC is not able to manage her financial affairs. 17Ms YGC told the Tribunal that she wanted her financial management order to end. She said that her expenditure, reported above, was a "one-off thing." Ms YGC confirmed that she did purchase a motorbike from her own money, and she had left that motorbike with "a friend." When asked by the Tribunal, Ms YGC conceded that the motorbike is now registered in the name of her friend. At that stage, Ms UAN gave evidence that Ms YGC does not have a licence to ride a motorbike. 18Ms Z told the Tribunal that Ms YGC knows that she had used her money unwisely after she absconded from the residential facility. Ms Z expressed the view that the current financial management order should remain in force. 19Ms YGC's separate representative advised the Tribunal that Ms YGC has poor decision-making ability, and is at risk of financial exploitation. He expressed the view that Ms YGC is not able to manage her own financial affairs. 20There was no evidence before the Tribunal to suggest that Ms YGC had regained the capacity to manage her financial affairs. Indeed, the available evidence invited the opposite conclusion. The Tribunal concluded that Ms YGC is not capable of managing her financial affairs. Is it in the best interests of Ms YGC that the financial management order be revoked? 21As was noted above, in early 1999, the Children's Court made a final order declaring Ms YGC to be a ward under the Children (Care and Protection) Act 1987. As provided for by the applicable transitional provisions of the Children and Young Persons (Care and Protection) Act 1998, the Minister for Family and Community Services currently has the relevant parental responsibility. That order remains in force until Ms YGC attains the age of 18 years in late 2015. 22A Legal Officer with the Department of Family and Community Services confirmed during the hearing that, under the terms of the order made in 1999, the Minister for Family and Community Services now has the responsibility for the care of Ms YGC's financial affairs. Nevertheless, the Legal Officer indicated that the Department of Family and Community Services would like the financial management order made by this Tribunal to remain in force. 23The order made by the Children's Court remains in force. The Tribunal raised with the Legal Officer the issue as to whether, if the Tribunal were to revoke Ms YGC's financial management order, the Tribunal should order the NSW Trustee and Guardian to pay Ms YGC's estate to the Minister for Family and Community Services on behalf of Ms YGC. The Legal Officer acknowledged that this would be an option. 24The Tribunal formed the view that it would be in Ms YGC's best interests to arrange for a pause the proceedings, so as to enable the Legal Officer of the Department of Family and Community Services to consult with her colleagues on this issue. When the hearing resumed, Mr TCC, Senior Solicitor and Team Leader with the Department of Family and Community Services, confirmed that the Minister for Family and Community Services still has parental responsibility for Ms YGC. Mr TCC also indicated that it is the view of the Department that the Minister still has the responsibility for the management of Ms YGC's financial affairs. Although the Children's Court made the order in 1999 under the authority of the Children (Care and Protection) Act 1987, as provided for by the applicable transitional provisions of the Children and Young Persons (Care and Protection) Act 1998, the Minister for Family and Community Services currently has the relevant responsibility. Although he did not cite any specific authorities, Mr TCC advised that "there is a lot of case law" to the effect that the Minister has responsibility for managing the financial affairs of a young person for whom the Minister has parental responsibility. 25Mr TCC candidly informed the Tribunal that the Department at times has difficulties in persuading banks to accept that the Minister has parental responsibility. Nevertheless, Mr TCC informed the Tribunal that, if the Tribunal were to revoke Ms YGC's financial management order, it would be open to the Department to request the NSW Trustee and Guardian to continue to manage Ms YGC's financial affairs, acting as the agent of the Minister. 26The Tribunal noted that, at the commencement of the hearing on 27 November 2014, there were two separate orders in place giving authority to two different people to manage Ms YGC's financial affairs: * Under the order originally made by the Children's Court, the Minister for Family and Community Services now has parental responsibility for Ms YGC. Mr TCC advised the Tribunal that the Department of Family and Community Services is of the view that the Minister still has the responsibility for the management of Ms YGC's financial affairs. The Tribunal accepted that the Children and Young Persons (Care and Protection) Act 1998 defines "parental responsibility" in particularly wide terms. The Tribunal accepted that "parental responsibility", as defined in section 3 of that Act, includes the responsibility and authority to manage the financial affairs of the child or young person. * On the other hand, under the terms of the order made by this Tribunal on 29 August 2014, the NSW Trustee and Guardian has the authority to manage Ms YGC's financial affairs. 27The Tribunal on 27 November 2014 formed the view that it would be in Ms YGC's best interests to provide certainty as to who has the authority to manage her financial affairs. The Tribunal also took the view that it would be in Ms YGC's best interests for the Minister for Family and Community Services, who has parental responsibility for her, to have the clear authority to manage her financial affairs under the authority of the order of the Children's Magistrate made in 1999. 28In summary, the Minister for Family and Community Services already has the responsibility for the management of Ms YGC's financial affairs, until Ms YGC turns 18. After taking account of this consideration, the Tribunal determined that it would be in Ms YGC's best interests for the Tribunal to revoke the financial management order of 29 August 2014, and to order the NSW Trustee and Guardian to pay Ms YGC's estate to the Minister for Family and Community Services on behalf of Ms YGC. This will ensure that Ms YGC's financial affairs can be managed for her by the Minister who already has full parental responsibility for her. FORMAL FINDINGS 29The Tribunal made the following formal findings: Financial Management * It is in the best interests of Ms YGC that the financial management order be revoked. * It is in the best interests of Ms YGC that the NSW Trustee and Guardian pays Ms YGC's estate to the Minister for Family and Community Services on behalf of Ms YGC. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2014