An aging population has resulted in an increase in age related
illnesses such as dementia. You are often faced with the issue of
who is best to manage an elderly person's affairs as a result
of that person's legal incapacity. The issue becomes
complicated when the elderly person claims domestic violence and/or
financial mismanagement by family members who appear best placed to
manage their affairs.
A sad example of such a complicated situation was the recent NSW
Supreme Court decision in The Husband v The Public
Guardian  NSWSC1720.
The husband asked for judicial review of orders made by the
Guardianship Division of the NSW Civil and Administration Tribunal
(Tribunal) regarding his wife who was diagnosed with frontal lobe
On 19 March 2015, the Tribunal appointed the NSW Trustee and
Guardian (NSW Trustee) as the wife's financial manager and the
Public Guardian as the wife's guardian. The initial orders were
made after the wife was hospitalised in October 2014 where she
advised hospital medical staff that her injuries were a result of
her husband's acts of domestic violence.
On 23 February 2016, the Tribunal dismissed the husband's
application to review and vary the initial financial management and
The husband appealed to the Court for judicial review of the
Tribunal's decision pursuant to clause 14 of Schedule 6 of the
NSW Civil and Administrative Tribunal Act 2013 (the
NCAT Act). The NSW Trustee, the Public Guardian and the
Tribunal filed submitting appearances and took no active part in
The husband's case was well presented and well argued. The
appeal identified a number of alleged errors in the Tribunal's
decision on questions of law in relation to both the financial
management and guardianship orders. Careful submissions and a
detailed statement from the husband about the history of the
relationship and refuting the domestic violence allegations were
important factors in the Court making its decision.
The Court decided to deal with the appeal by way of a new
hearing for both the financial management orders and the
guardianship orders. The statutory basis for that decision was
clause 14(3) of Schedule 6 of the NCAT Act.
The Court ordered that the decision under appeal be quashed and
another decision be substituted for that decision. The Court also
ordered that the husband be appointed financial manager and
guardian for the wife in place of the NSW Trustee and Public
Court reviews statutory law and appeal process
The judgment of Justice Slattery is very helpful.
It identifies the statutory basis and general principles that
apply to financial management orders and guardianship orders.
Principles relevant to the wife in this case were her welfare and
best interests as well as the importance of preserving family
The judgment also examines the jurisdiction of the Court to
grant administrative law remedies and the operation and basis for
rights of appeal under the NCAT Act. It referred to the
earlier Court decision in C v W  NSWSC 1774 where
the case law was comprehensively reviewed and the structure of the
appellate provisions explained.
In this case, good and careful preparation resulted in previous
evidence being discredited and the Court favouring the family first
(the husband) as financial manager and guardian for the wife. The
failure of the NSW Trustee and the Public Guardian to take an
active part in the appeal and file submissions assisted the Court
to make its decision.
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To guarantee some of his inheritance, he asked the court to make a "notional estate" order to reflect the joint assets.
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