ACT Civil and Administrative Tribunal|2020-11-09|Before: Neate AM

For the reasons given in the course of the hearing on 17 March 2020, as expanded upon in these written reasons for decision, the Tribunal made the orders dated 17 March 2020.
Consistently with the approach taken by the NCAT, which provided detailed written reasons for decisions in relation to Toby subject to restrictions on their publication, the Tribunal:

(a) by order under section 39 of the ACAT Act, directs that the oral and written evidence given in these proceedings is not to be published in public;

(i) are to be made available only to Toby, the wife of Toby, the mother of Toby, the NSW Public Trustee, the NSW Public Guardian and the ACT Public Trustee and Guardian, and their legal representatives;

(ii) can be made available to the NCAT if necessary or appropriate; and

(iii) are not to be published or otherwise disclosed publicly; and

(c) notes that the Tribunal might publish an anonymised version of these reasons for decision, removing from those published reasons the names of all parties and those who provided evidence in relation to the hearing of this application.

[1] Toby is not his real name. We have used a pseudonym to preserve his privacy and the privacy of others

[2] It appears that the lawyer, a barrister in New South Wales, applied to be a friend in the present application so that it was not necessary to seek leave for his clients to be legally represented: Transcript of proceedings 17 March 2020 pages 3, 11-12. The basis for that application may have arisen from a misunderstanding of the applicable law in the ACT. which contrasts with the requirement for leave to be granted for legal representation before the NCAT. As noted at the hearing, section 30 of the ACT Civil and Administrative Tribunal Act 2008 provides that a person may, in relation to an application before the Tribunal, appear in person or be represented by a lawyer or someone else (other than a person prescribed under the Rules)

[3] See ACT Civil and Administrative Tribunal Act 2008 section 60(2)

[4] See Negri v Secretary, Department of Social Services [2016] FCA 879 at [12]- [29]

[5] See the medical reports referred to by the NCAT in the reasons for decision in relation to Toby dated 17 October 2018 at [18]-[22]

[7] Transcript of proceedings 17 March 2020 pages 19, 29-31

[8] Transcript of proceedings 17 March 2020 page 13

[9] Transcript of proceedings 17 March 2020 page 19

[10] Transcript of proceedings 17 March 2020 page 19

[11] See the reasons for decision of the NCAT in relation to Toby dated 17 October 2018 at [30], see also [32], [34], [35], [44] and [51]. The reasons for decision for the NCAT Order of 27 March 2018 noted that there were no representations to make the NCAT doubt that their estrangement continued. It found that the mother of Toby and the wife of Toby were unable to work collaboratively or constructively together: at [151].

[12] Transcript of proceedings 17 March 2020 page 9

[13] Transcript of proceedings 17 March 2020 page 27

[14] Transcript of proceedings 17 March 2020 pages 28-29

[15] In the Matter of Renee [2019] ACAT 116

[16] In the Matter of Renee [2019] ACAT 116 at [10]

[18] See Transcript of proceedings 17 March 2020 page 26

[20] Transcript of proceedings 17 March 2020 page 24

[21] Transcript of proceedings 17 March 2020 pages 24-25

[22] Those orders also revoked the appointment of wife of Toby as the financial manager of the estate of Toby

[23] Transcript of proceedings 17 March 2020 page 19

[24] Transcript of proceedings 17 March 2020 pages 19-20

[25] Transcript of proceedings 17 March 2020 pages 33-34

[26] Transcript of proceedings 17 March 2020 pages 34-35

[27] Transcript of proceedings 17 March 2020 pages 35-36

[28] These matters are considered later in these reasons and the order and notation to the order

[29] Transcript of proceedings 17 March 2020 page 22

[30] Transcript of proceedings 17 March 2020 page 29

[31] In her application for appointment the mother of Toby stated that she had informed Toby that she was making the appointment and that he agreed with the application being made. The statements by Director of Bloomfield Support Solutions, a speech pathologist with Eat Speak Learn Speech Pathology Services and a behaviour therapist suggests that Toby is content with current arrangements

[32] See the discussion of the access order at paragraphs 30-55 inclusive

[34] See submission in Transcript of proceedings 17 March 2020 page 18

[36] Transcript of proceedings 17 March 2020 page 32

[38] Transcript of proceedings 17 March 2020 page 32

[39] Transcript of proceedings 17 March 2020 page 36

[41] Transcript of proceedings 17 March 2020 pages 9-10, 12, 21, 22

[42] Transcript of proceedings 17 March 2020 pages 10, 39, 40

[43] See the definition of 'carer' in the Guardianship and Management of Property Act 1991 section 6

[44] Transcript of proceedings 17 March 2020 page 37

[45] Transcript of proceedings 17 March 2020 page 39-41

[46] Transcript of proceedings 17 March 2020 page 38

[47] Transcript of proceedings 17 March 2020 page 42

Civil and Administrative Tribunal Act 2008

Management of Property Act 1991

Trustee and Guardian Act 2009

Trustee and Guardian Act 1985

IN THE MATTER OF TOBY (Guardianship) [2020] ACAT 90 (9 November 2020)

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 30, 39, 60

Guardianship Act 1987 (NSW) s 16

Guardianship and Management of Property Act 1991 ss 4, 5, 5A, 6, 7, 7B, 8, 9, 10, 11, 12, 19

Legislation Act 2001 ss 130, 139

NSW Trustee and Guardian Act 2009 s 41

Public Trustee and Guardian Act 1985 ss 13, 14

Cases cited: In the Matter of Renée [2019] ACAT 116

Negri v Secretary, Department of Social Services [2016] FCA 879

IN THE MATTER OF TOBY (Guardianship) [2020] ACAT 90 (9 November 2020)

At a glance

Court

Decision date

Before

Source

Judgment (53 paragraphs)

Legislation Cited (4)

Cases Cited (2)

IN THE MATTER OF TOBY (Guardianship) [2020] ACAT 90 (9 November 2020)