JSM [2011] QCAT 351 (19 July 2011)

The hearing took place on the papers in the absence of the parties.

[1] An application has been made to the tribunal seeking the appointment of a guardian and administrator for JSM. JSM will turn 18 years of age within the next few months. JSM is in the care of the Department of Communities (Child Safety Services) and an officer from that Department seeks the appointments to take effect from when JSM turns 18 years of age.

[2] The father of JSM was notified of the applications by the tribunal. He was subsequently informed of the proposed hearing date of the applications. An officer of the Department sought an order that the father of JSM be excluded from attending the hearing.

[3] In support of that application, the tribunal was told that the father of JSM was allegedly the perpetrator of sexual harm to JSM in her child protection history and that JSM has significant fear of her father. The tribunal was told that JSM had chosen to have no contact with her father indefinitely. The tribunal was told that JSM would not attend the hearing or participate in the hearing if her father was taking part.

[4] After receiving the application for a limitation order, a staff member from the tribunal registry spoke with XY, the father of JSM on 18 July 2011. He indicated that he would not attend the hearing if his wife and her support worker could attend.

[5] It was not clear whether XY would attend the hearing or not as the hearing is open to the public and without a limitation order XY would be at liberty to attend notwithstanding his comments to the contrary made to the tribunal registry officer.

[6] Under section 107 of the Guardianship and Administration Act 2000 the tribunal may exclude a person from a hearing if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person. The terms "serious harm" and "injustice" are not defined in the Guardianship and Administration Act 2000. According to section 14A of the Acts Interpretation Act 1954 the interpretation that will best achieve the purpose of the Act is to be preferred.

[7] A person with impaired capacity is the primary focus of proceedings under the Guardianship and Administration Act 2000. A person with impaired capacity has the right under that Act to adequate and appropriate support. That right requires the tribunal to ensure that the tribunal's processes are carried out in such a way that serious harm or injustice to the person with impaired capacity is avoided. [1]

[8] The former Guardianship and Administration Tribunal had determined that "serious harm" would mean physical or psychological injury, whether temporary or permanent, that endangers, or is likely to endanger human life, or is likely to be, significant and longstanding_.[2]_ That explanation of what would be accepted as constituting serious harm appears appropriate when considering whether to grant a limitation order in terms of section 107 of the Act.

[9] In this case, the tribunal accepted the submissions that JSM has a significant fear of her father due to events in her past child protection history. JSM has not been in the care of her father for some years. She has chosen not to have contact with him. It is readily accepted by the tribunal that JSM would be likely to suffer significant psychological distress if she is forced to encounter her father and such a meeting would give rise to a real risk of an ongoing significant adverse impact on her psychological functioning.

[10] However, JSM had indicated that she would not attend the hearing out of fear if her father was present. If she persisted in that position, the tribunal would not have the opportunity to speak directly to JSM to explore her views and wishes about the applications concerning her legal rights.

[11] The Australian Concise Oxford Dictionary defines "injustice" as a lack of fairness or justice. Conducting a proceeding in a manner that would materially interfere with the ability of a person with impaired capacity to participate in a hearing about their decision making capacity would compromise the delivery of justice by the tribunal

[12] If the tribunal were to persist with a hearing where JSM boycotted the hearing due to the presence of her father, the tribunal's outcomes would not result in the achievement of the objects of the tribunal to be accessible just and fair.

[13] The tribunal was satisfied that it was necessary to avoid injustice to JSM by excluding her father from attending the hearing of the applications for the appointment of a guardian and administrator for JSM.

[1] DAA [2009] QGAAT 8 at paragraph 42