XSC (Review of a Guardianship Order) [2025] TASCAT 90 | Case summary

XSC (Review of a Guardianship Order) [2025] TASCAT 90 | Case summary | Zoe

On 21 January 2025 the Tribunal made an emergency interlocutory order for 25 days appointing the Public Guardian with the authority to make substitute decisions for the personal matter of provision of care services for XSC, including NDIS services.
On 4 February 2025 the Tribunal made an order appointing a separate representative for XSC. Mr MacGregor of Tasmania Legal Aid was the separate representative.
On 7 February 2025 the Tribunal joined XSC's father, KSC as a party to the proceedings.
On 21 February 2025 the application came before a three-member panel of the Tribunal. KSC sought an adjournment to enable him the opportunity to seek legal representation in the proceedings. The Tribunal granted the adjournment, and the Public Guardian was appointed as guardian for XSC for the period of the adjournment. The guardian was granted authority to make substitute decisions for the following personal matters: where XSC lives, healthcare and the additional power of provision of care services to XSC, including NDIS services. The Tribunal directed that further documentation that any party sought to rely on be filed seven days prior to the hearing.
On 24 March 2025 the application was listed for hearing before a three-member panel of the Tribunal. The hearing was conducted in person and via video conferencing. The hearing was attended by the applicant and guardian Ms Kylie Hillier from the Office of the Public Guardian (the applicant, Ms Hillier); the represented person XSC; XSC's father KSC; XSC's NDIS support coordinator Ms Irene Afman (Ms Afman); the separate representative Mr MacGregor, and a security guard. Both XSC and KSC opposed the appointment of a guardian. Mr MacGregor and Ms Afman supported the application.
The Tribunal had the following documents before it, and took the whole of their content into account:
1. All orders made by the Tribunal (referred to above).
2. The application.
3. Health Practitioner Report by psychologist Ms Kristine Bull (Ms Bull) of 25 October 2024.
4. Report by Ms Bull of 21 November 2023.
5. Home and Living Assessment and Functional Capacity Assessments by occupational therapist Mr Nicholas Underwood (Mr Underwood) for XSC of 2 December 2024 and 21 March 2024.
6. Interim Behaviour Support Plan for XSC by Ms Courtney Ellem of 15 September 2024.
7. Patient Health Summary relating to XSC of 3 September 2024.
8. Emergency guardian report of 13 February 2025.
9. Bundle of documents received from KSC on 18 February 2025 summarised as follows;
  1. Screen shots of a text message on a mobile telephone from Ms Afman relating to weekly hours of support for the period 10 February 2025 to 1 March 2025.
  2. Screen shots of text messages on a mobile telephone between a service provider and KSC between 4 December 2024 and 18 February 2025.
  3. School timetable of February 2024.
  4. Notes for services from Thrive @Life for XSC for 2 to 15 December 2024, 17 February 2025 to 2 March 2025.
  5. Calendar pages with activities listed February to May (no year stated).
  6. Social club activities for August and September (no year stated).
  7. Leaflets for - love and the spectrum, social programs, NDIS independent living program.
  8. NDIS correspondence to KSC of 6 June 2024 (request for a plan), 4 October 2024 changes to plan, 10 October 2024 (cancelling KSC as nominee).
  9. NDIS service agreement for XSC of 20 June 2024.
  10. Individual Service Agreement for XSC with provider EM of 10 July 2024.
  11. Application for restraint order of 25 September 2024 against KSC and interim restraint order against KSC of 27 September 2024.
  12. Epilepsy management plan and emergency medication management plan for XSC, prepared by consultant paediatrician Dr Evelyn Funk of 17 December 2024.
  13. NDIS budget summary for XSC for June 2024 to June 2025.
  14. College school reports for XSC for 2024.
  15. Outcomes Star document for XSC.
  16. Risk indemnity form relating to XSC of 14 July 2024.
  17. Bank letter to XSC regarding debit card of 13 May 2024.
  18. Multicap NDIS Service Agreement of 13 September 2024.
  19. Three pages handwritten notes with dot points.
  20. Application for guardianship and administration made by Ms Afman undated and application for review of guardianship order.
  21. Letter from Tasmania Legal Aid relating to Magistrates Court appearance by XSC of 20 January 2025, together with complaints for charges alleged on 20 August 2024, 10 September 2024 and 23 November 2024 and facts for the prosecutor for those incidents.
  22. Opportunity Support Service participant intake form for XSC, undated.
  23. Email of 22 September 2024 from Mr Underwood to KSC with attached information on parenting tips.
  24. Blank copies of XSC's daily planner and chores sheet.
10. Letter from Ms Afman titled "to whom it may concern" dated 18 March 2025, provided at the hearing on 24 March 2025.
In addition to the above, at hearing KSC showed the Tribunal charts/schedule for XSC with many picture cards that could be adhered to the schedule prepared by the behaviour support specialist.
For the reasons outlined below, the Tribunal appointed the Public Guardian as guardian for XSC for a period of 12 months to make decisions about the provision of care services to XSC, including NDIS services.
The Tribunal received a request for written reasons from KSC. These are the reasons.

At the hearing, Ms Hillier referred to the goals set by XSC as outlined in his functional assessment, which include wanting to have access to daily services to be in the community. XSC's access to support services had ongoing difficulties due to KSC's ongoing interruptions. Those interruptions included KSC telling service providers that XSC did not want to engage with them. In contrast the service providers report that interactions with XSC are positive. KSC cancelled all services despite agreeing at a meeting on 6 February 2025 that there was a NDIS plan with many supports that were not being utilised, accepted that XSC should engage with services, that XSC does not like change, XSC "likes to please the person he is talking to" and KSC needed a roster of support services. XSC had stated he was content with Ms Afman as NDIS coordinator although his father wanted to "get rid" of her, ultimately resulting in XSC telling Ms Afman she was no longer required.
Ms Hillier submitted it was "hard to determine" XSC's will and preference due to the significant influence of KSC. When KSC is not present the wishes and preferences expressed by KSC are different to when KSC is present. She held concerns for how that would unfold at the hearing and in circumstances where XSC continued to live with KSC.
Ms Hillier stated recently two service providers had withdrawn from supporting XSC as they could not work with KSC. As at the date of hearing XSC was not having regular supports.
Ms Hillier stressed that XSC has had "enough of meetings" and hearings, he wishes to live his life and "have fun". She had reflected and consulted with stakeholders on whether "walking away" was an appropriate avenue. However, this had been previously tried in 2024 and "things fell apart". There remained ongoing concerns of carer burnout, "heightened discussions" in the home resulting in XSC walking the streets, and emergency services involvement (including police). Ms Hillier did not wish there to be risk of further conflict between XSC and his father. She considered there would be "concerns" with or without an order, with KSC likely to continue to undermine services.
Recently, KSC had proposed a new service provider who he also proposed undertake the role of NDIS coordinator. She submitted that it was against best practice for the two roles to be undertaken by one organisation. Ms Hillier had communicated with the proposed service provider however that provider did not appear to yet understand her role and the nature of the guardianship order for XSC. Ms Afman agreed with Ms Hillier.
Ms Hillier submitted that a guardian could provide "oversight" of support services for XSC.
Ms Afman indicated she had been XSC's NDIS co-ordinator of supports for over a year. She supported the appointment of a guardian. She provided a history of repeated breakdown in XSC's service provider relationships citing KSC's behaviour playing a significant role in the disruptions. She reported several verbal altercations during support hours, XSC being prevented from communicating with supports and friends by restricting access to communication devices or deliberately damaging devices. She also reported KSC refusing to leave meetings even when requested by XSC, resulting in those meetings being cancelled. Furthermore, KSC "speaks down" to XSC and tells XSC that "he does not understand anything and cannot make his own decisions". Ms Afman opined:

At the hearing KSC stated he had chosen a new service provider and NDIS support coordinator for XSC. It was clear that KSC did not appreciate or understand under the guardianship order the guardian had decided that Ms Afman remain as NDIS coordinator.
At hearing, KSC accepted that support services had been cancelled however denied the allegations of cancelling XSC's support services as outlined by Ms Hillier, Ms Afman and detailed in the hearing papers. He denied interrupting or impeding XSC from having support services. He outlined criticisms of the support services that included: they were not "quality"; XSC was overwhelmed by changes; support services were disorganised; they failed to turn up; they failed to provide rosters; they failed to provide female support workers as requested; and referred to inappropriate conduct with one worker providing XSC with cigarettes and vapes. The documents he provided showed there were times he requested rosters and they were provided albeit with some changes due to workers. KSC denied all the criticisms made against him of disrupting services. He stated that Ms Afman told him he could cancel any services that he considered were "not working". KSC had been looking for and arranging other services for XSC.
The documents provided by KSC to the Tribunal indicate KSC asked for rosters, followed up on workers, XSC did not wish to have a certain worker and on 30 January 2025 he expressed concern that a support worker was providing XSC with cigarettes and vapes. The documents also indicate that service providers did not provide workers on 31 December 2024, 18,19 and 29 January 2025.
The documents provided by KSC also indicate that KSC cancelled services on the following occasions;
1. 12 December 2024, XSC did not want support that day.
2. 16 December 2024, XSC did not want support that day because XSC had been out all night.
3. 5 January 2025 the stated reason was they were fishing.
4. 21 January 2025 requesting no supports for the week and cancelled the service provider.
5. 3 February 2025 stating they had alternate plans.
On 4 February 2025 the police undertook a welfare check on XSC. KSC stated he wanted NDIS "off his back" and wanted Ms Afman removed. XSC stated he wanted his supports to start again and wanted Ms Afman to remain.
At hearing, KSC stated more than half of support services in the last month had been cancelled by the support services. At hearing KSC was unable to give clear evidence about what support services XSC was to have and what supports he had recently undertaken. KSC had ceased XSC's Ritalin because "it didn't go with cigarettes". Initially, he did not know when the medication was ceased, then believed it was 2024, and he did not consult with XSC's paediatrician.
At times during the hearing, KSC did not appear to understand questions requiring them to be repeated, and his answers were often confusing, lacked clarity or did not answer the question. The Tribunal had difficulty following KSC's evidence.
The evidence reflected a significant difference between what XSC and KSC and all other parties understood for the reasons services had not occurred. It was clear that XSC was not aware of decisions by his father to cancel services. The Tribunal accepted and preferred the evidence of Ms Hillier and Ms Afman and finds that KSC has largely unilaterally cancelled services for XSC.

Pursuant to s 20(2) of the Act the Tribunal must also consider the wishes and preferences of XSC; whether XSC's needs can be met by other less restrictive means; and the wishes and preferences of XSC's close family members, carers and other significant persons in his life.
The Tribunal had the benefit of hearing at length from XSC. His evidence can be summarised as follows:
1. He did not understand what the hearing before the Tribunal was about.
2. "I really just want the best for me, and I want my say in where I go and what companies and stuff like that, I kinda [sic] haven't had my voice heard".
3. He wanted a new NDIS support coordinator because he believed the current coordinator did not have his "best interests" and did not follow through with what she says. He gave the example of wanting to access respite independent of his parents, which had not yet been actioned. He would also like to undertake employment.
4. He wants daily support both in and out of his home.
5. He did not know what was covered by his NDIS plan.
6. The reason he walked the streets at night was because of his nicotine addiction. A previous support worker had supplied him with cigarettes and vapes. He also stated he would walk the streets when he was upset. He accepted that he had got in trouble with the police.
7. There are arguments and "upsets at home with Dad". He described them being close, "too close". He described a recent incident where he had Fanta raspberry drink, which made him "crazy, bouncing off walls and yelling out to the cops, grabbing knives, stuff like that".
8. He had not been spending time with workers because they cancel, and they are not organised properly. When Presiding Member Jordan suggested his father had cancelled them, XSC stated that was not true. He stated, "they cancel and try to blame it on Dad and me".
9. He is "frustrated and annoyed" with the services.
10. He would like to make his own decisions about supports. He would like his father involved as well.
11. He does not have a mobile telephone and would like one.
Ms Hillier submitted that "confusion arises" about XSC's wishes when his father is present. The statements by XSC at the hearing were different to wishes and preferences XSC has told Ms Hillier, Ms Afman, Mr Macgregor and support workers. The wishes and views put by XSC at the hearing were consistent with his "Dad's concerns or his Dad's narrative". XSC has not had supports for a while. Ms Hillier was confused whether it was what XSC believes or what XSC is saying because "it is the right thing to say in front of his Dad". She stated a guardian will protect XSC from exploitation "theoretically", however "practically it is hard to implement" when XSC is with KSC. In her view, even if services are cancelled with a guardian involved, feedback and data can be provided to NDIS which in turn may result in funding for independent living.
Ms Hillier stated that Ms Afman has tried to organise respite, however, the services that provide that service have cancelled. The cancellations have not been due to disorganisation of the support providers.
Ms Hillier stated that with the ongoing cancellation of services, it becomes harder to reinstate supports.
Ms Afman said that plans and goals are set during discussions with XSC, however, if KSC does not agree, then those are undermined. She expressed her concern of a conflict of interest if a service provider also undertakes the role of NDIS coordinator. It was not considered good practice. Ms Hillier stated she had contacted the service provider suggested by KSC, however, they had not provided a service agreement and she questioned if they understood the role of a guardian appointed under the Act, as in XSC's circumstances.
At hearing, Mr MacGregor submitted that XSC told him that he wanted Ms Hillier and Ms Afman involved. XSC wanted more support services. XSC was aware that KSC wanted to remove Ms Afman; however, XSC did not want that. XSC wanted his parents' input on decisions, however, he wants it to be his decision. At the hearing, XSC had stated different wishes and preferences. Mr MacGregor submitted that there was evidence of XSC expressing inconsistent wishes and preferences.
KSC believed it was easier for XSC to express his views and wishes to KSC because they are "so close".

The Tribunal accepts the difficult dynamics regarding the practical living arrangements for XSC, and how they intersect with the significant influence by his father, the balance between XSC's safety and ensuring his will and preference are heard and supported.
The Tribunal accepts the evidence that KSC has a history of cancelling supports, refusing supports, and preventing XSC from having supports not approved by KSC. The involvement of a guardian will give effect to XSC's wishes, views and preferences. The Tribunal finds on the medical evidence provided that XSC would not be able to navigate support services, NDIS processes and carry out the many functions the guardian has been performing on his behalf, including engaging with services and the NDIS coordinator, and advocating. If the Tribunal was to give effect to XSC's wishes as expressed at hearing and by KSC at hearing, that is not to make a guardianship order, the most likely result would be XSC's continuing to miss out on important support services and no network to support his goals. We accept that without supports it is likely the home environment will become further heightened and XSC will be put at risk of conflict and wandering the streets. Ms Hiller, Mr MacGregor and Ms Afman support the appointment of a guardian to make decisions about the provision of services to XSC including NDIS services. Considering all this, the Tribunal finds that there is a need for a guardian to make decisions about the provision of services including NDIS services.
Understanding XSC's wishes and preferences is not straightforward, as the evidence before us indicates they are significantly influenced by the views and presence of his father with whom he lives. The Tribunal finds that it is undisputed that XSC wishes, views and preferences are to have the benefit of daily support services, and he has a NDIS plan that provides and entitles him to those support services.
Further, the Tribunal is satisfied XSC's needs are unable to be met by less restrictive means. Previously, when KSC was the NDIS plan nominee, he cancelled all service providers, causing difficulties with XSC supports and or resulting in loss of supports.

XSC (Review of a Guardianship Order) [2025] TASCAT 90 (9 May 2025)

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XSC (Review of a Guardianship Order) [2025] TASCAT 90 (9 May 2025)

Legislation Cited (2)