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TM[2017] QCAT 245

CITATION:

TM [2017] QCAT 245

PARTIES:

TM

APPLICATION NUMBER:

GAA702-17; GAA3227-17; GAA6449-17 and GAA 6450-17

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

7 June 2017

HEARD AT:

Bundaberg

DECISION OF:

Member Milburn

DELIVERED ON:

20 June 2017

DELIVERED AT:

Hervey Bay

ORDERS MADE:

  1. The tribunal orders that pursuant to section 107(1)(b) of the Guardianship and Administration Act 2000, to enable the tribunal to conduct a preliminary examination, GM is excluded from part of the hearing of applications numbered GAA702-17; GAA3227-17; GAA6449-17 and GAA 6450-17AA.
  2. The tribunal declines to make an order pursuant to section 107(1)(b) of the Guardianship and Administration Act 2000, to exclude GM from the balance of the hearing of applications numbered GAA702-17; GAA3227-17; GAA6449-17 and GAA 6450-17.
  3. The tribunal declines to make an order pursuant to section 109 of the Guardianship and Administration Act 2000, to restrict information about any part of the hearing of applications numbered GAA702-17; GAA3227-17; GAA6449-17 and GAA 6450-17.

CATCHWORDS:

LIMITATION ORDERS – CLOSURE ORDER – where the tribunal initiated an application for a limitation order – where the tribunal had previously made a confidentiality order to keep documentation confidential from the adult’s father – where the adult’s father is currently subject to a forensic order – where the adult’s father is an applicant in the proceedings – whether a closure order should be made to exclude the adult’s father from attending the hearing, or part of the hearing – where the tribunal initiated an application for the closure order – where the tribunal made a closure order for a preliminary examination – confidentiality order – whether there are grounds to restrict information

Guardianship and Administration Act 2000 (Qld), s 104, s 105, s 107, s 109, s 114A, s 119, s 123

BSLP [2004] QCAT 462

JSM [2011] QCAT 351

APPEARANCES:

TM (adult)

GM (parent)

PA (Forensic Liaison Officer)

RM (aunt)

SM (grandfather)

RL (social worker)

Melanie Motavali (Office of the Public Guardian)

REASONS FOR DECISION

What is this application about?

  1. [1]
    In this hearing, the tribunal was convened to review the appointment of a guardian for an adult with impaired decision-making capacity.
  2. [2]
    The tribunal initiated an application for a limitation order (closure order) at the commencement of the hearing.
  3. [3]
    Before making a closure order the tribunal must be satisfied that it is necessary to do so to avoid serious harm to a person or avoid injustice to a person.[1]
  4. [4]
    The closure order involved the adult’s father, who was previously denied access to documentation involving his son consequent upon a confidentiality order of this tribunal in 2012.[2]

The legal test

  1. [5]
    A hearing by the tribunal of proceeding must be in public. However, the tribunal may make a closure order.[3]
  2. [6]
    Before the tribunal can make a closure order, the tribunal must be satisfied that the order is necessary to avoid serious harm to a person or avoid injustice to a person.[4]
  3. [7]
    If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a closure order), exclude a person, including an active party, from the hearing or part of the hearing.[5]
  4. [8]
    The need to make a closure order must be balanced against the entitlement of each active party in the proceedings to attend, and the tribunal hearing to be held in public, and the hearing be able to be publicly reported.[6]

Background

  1. [9]
    The adult is a man in his mid-20s who lives with his aunt and is subject to both a guardianship order (where tribunal appointed the Public Guardian as guardian for the adult in 2015) and an administration order (where the tribunal appointed the Public Trustee as administrator for the adult in 2013).
  2. [10]
    The guardianship order was due for review. Originally the tribunal intended to proceed to review the guardianship order on the papers, however the father expressed a view that he wished to have his son reside with him and he wished to be appointed as guardian to make decisions for his son.
  3. [11]
    The material on the tribunal file indicates that the father was made the subject of a forensic order on 2 December 2014. It further indicates that the father was discharged from The Park, Centre for Mental Health in March 2017.
  4. [12]
    The adult’s father attended the hearing with his forensic liaison officer.
  5. [13]
    At the commencement of the hearing, the adult indicated that he did not want his father to attend. That was the case even though he had face-to-face contact with his father since the last tribunal hearing.
  6. [14]
    The tribunal allowed the forensic liaison officer to speak privately with the adult’s father about the adult’s wishes. At the same time, the tribunal allowed the attending social worker and family members to speak with the adult. The social worker reported back to the tribunal that the adult was equivocating. The social worker found it difficult to form a view as to the adult’s wishes, as he was not communicating particularly well.
  7. [15]
    The tribunal observed that the adult appeared to be agitated and he exhibited signs of stress.

The tribunal conducted a preliminary examination

  1. [16]
    The tribunal accepts that the adult’s father is perfectly entitled to bring an application to be appointed as guardian. As an active party,[7] the adult’s father may appear at the hearing.[8] However, the tribunal was concerned to ensure the safety and well-being of the adult. It was not clear to the tribunal whether the presence of the adult’s father would cause serious emotional harm to the adult.
  2. [17]
    To avoid injustice to the adult, the tribunal determined it was necessary to initiate an application for a closure order.
  3. [18]
    In appropriate circumstances, the tribunal can make a closure order to exclude a parent of the adult.[9] The closure order was to allow the tribunal to conduct a preliminary examination of the adult and other witnesses, in the absence of the adult’s father.
  4. [19]
    The tribunal formed the view that it was necessary to conduct a preliminary examination so to weigh up the right of active parties to participate and the desirability that the hearing is in public against the risk of serious harm or injustice to the adult.
  5. [20]
    Injustice would occur if the adult was not willing to fully disclose relevant information at the hearing
  6. [21]
    The tribunal spoke to the adult’s father about excluding him from part of the hearing. The adult’s father understood the position and raised no concerns.
  7. [22]
    The adult’s father, who was accompanied by a forensic liaison officer, complied with the tribunal’s request to leave the hearing for a short period.
  8. [23]
    The closure order had the effect of excluding the adult’s father during the preliminary examination. During the preliminary examination, the tribunal took evidence from the adult and other parties. The tribunal took the evidence to determine whether the presence of the adult’s father at the hearing would cause serious harm to the adult or (continue to) cause injustice to the adult.

Conclusion

  1. [24]
    Based on the evidence received by the tribunal during the preliminary examination, the tribunal was satisfied that it was not necessary to further exclude the adult’s father from the hearing.
  2. [25]
    The adult became well-settled. He was happy for his father to participate. Those in support of him, shared that view.
  3. [26]
    The adult’s father was invited to rejoin the hearing after the preliminary examination.

Closure order

  1. [27]
    The tribunal made a closure order to conduct a preliminary examination when satisfied that it was necessary to avoid injustice to the adult.
  2. [28]
    The tribunal declined to make a closure order to exclude the adult’s father from the substantive review hearing.

Confidentiality order

  1. [29]
    If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a confidentiality order) withhold from an active party or other person other information before the tribunal.[10]
  2. [30]
    The question arises as to whether the tribunal should restrict information about the preliminary examination from the adult’s father.
  3. [31]
    Subject to the general prohibition against the publication of information about a guardianship proceeding which is likely to lead to the identification of the relevant adult,[11] the tribunal does not consider it appropriate to make a confidentiality order about the evidence given during the preliminary examination.

Footnotes

[1]Guardianship and Administration Act 2000 (Qld), s 107.

[2]At that time, the tribunal ordered that documentation was to be kept confidential from the father.

[3]Guardianship and Administration Act 2000 (Qld), s 105.

[4]JSM [2011] QCAT 351.

[5]Guardianship and Administration Act 2000 (Qld), s 107.

[6]Ibid, s 104.

[7]Guardianship and Administration Act 2000 (Qld), s 119.

[8]Ibid, s 123

[9]BSLP [2004] QCAT 462.

[10]Guardianship and Administration Act 2000 (Qld), s 109.

[11]Ibid, s 114A.

Close

Editorial Notes

  • Published Case Name:

    TM

  • Shortened Case Name:

    TM

  • MNC:

    [2017] QCAT 245

  • Court:

    QCAT

  • Judge(s):

    Member Milburn

  • Date:

    20 Jun 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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