MXQ
[2021] QCAT 381
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- Unreported Judgment
- MXQ[2021] QCAT 381
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MXQ[2021] QCAT 381
MXQ[2021] QCAT 381
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MXQ [2021] QCAT 381 |
PARTIES: | In applications about matters concerning MXQ |
APPLICATION NO/S: | GAA10055-21, GAA10057-21, GAA10205-21 |
MATTER TYPE: | Guardianship and administration matters for adults |
DELIVERED ON: | 25 October 2021 |
HEARING DATE: | 25 October 2021 |
HEARD AT: | Brisbane |
DECISION OF: | Member Browne |
ORDERS: | GUARDIANSHIP
ADMINISTRATION
NOTICE OF INTEREST IN LAND
LIMITATION ORDERS
|
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where applications for the appointment of guardian and administrator – where evidence before the Tribunal to satisfy the requirements of s 107 of the Guardianship and Administration Act 2000 (Qld) – where application initiated by the Tribunal to exclude a particular person from the hearing – where limitation orders should be made Acts Interpretation Act 1954 (Qld), s 14A Guardianship and Administration Act 2000 (Qld), s 6, s 11A, s 100, s 111, s 105, s 107, s 109, s 110, s 118(2)(a) Human Rights Act 2019 (Qld), s 13, s 48 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66 DAA [2009] QGAAT 8 JSM [2011] QCAT 351 |
APPEARANCES & REPRESENTATION: | MXQ, in person TP and CB in person |
REASONS FOR DECISION
- [1]On 25 October 2021 the Tribunal determined that limitation orders should be made and ordered that pursuant to s 107 of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’) MXQ be excluded from the hearing of the application numbered GAA10205-21. The Tribunal also ordered that pursuant to s 109 of the GAA, all documents concerning MXQ are confidential and must not be disclosed to SN and TF.
- [2]After hearing the application for a confidentiality order, the Tribunal made orders appointing the Public Guardian as MXQ’s guardian to make decisions about some of his personal matters, to the extent provided in the making of the order. The Tribunal appointed the Public Trustee of Queensland as an administrator to make decisions about all of MXQ’s financial matters; and made a confidentiality order.
- [3]The Tribunal delivered oral reasons at the conclusion of the hearing about the applications for the appointment of a guardian and administrator. The following are my reasons for the limitation orders made on 25 October 2021.
- [4]A hearing by the Tribunal of a proceeding must be in public. However, the Tribunal may make an adult evidence order or a closure order.[1] Under s 107 of the GAA, the Tribunal may exclude a particular person from a hearing if satisfied it is necessary to avoid serious harm or injustice to a person. Under s 109 of the GAA, the Tribunal may withhold from an active party or other person a document or other information if satisfied that it is necessary to avoid serious harm or injustice to a person. In making orders under s 107 for a closure order and s 109 for a confidentiality order under the GAA, the Tribunal may do so, only ‘to the extent necessary’, as provided under the Act.
- [5]The GAA does not define the meaning of ‘serious harm’ and ‘injustice’. An interpretation that will best achieve the purpose of the Act is preferred.[2] The GAA seeks to strike a balance between the right of an adult with impaired capacity, to whom the applications for the appointment of a guardian and administrator concern, to the greatest possible degree of autonomy in decision-making. Further, the GAA seeks to strike a balance between the adult’s right to adequate and appropriate support for decision-making.[3] The adult with impaired capacity is the primary focus of the GAA.[4]
- [6]The Tribunal has previously considered the meaning of ‘serious harm’ and ‘injustice’. In another guardianship matter concerning JSM,[5] the Tribunal in adopting the approach taken in DAA’s case,[6] a decision of the former Guardianship and Administration Tribunal, observed that a person with impaired capacity has the right under the GAA to adequate and appropriate support and 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.[7]
- [7]I adopt the approach taken by the Tribunal in JSM’s case as to the meaning of ‘serious harm’ and ‘injustice’, for the purposes of s 107 of the GAA. I also adopt the approach taken by the Tribunal in JSM’s case as to the meaning of ‘serious harm’ and ‘injustice’, for the purposes of s 109 of the GAA. I find that for the purposes of making a closure order pursuant to s 107 of the GAA and in finding that such an order is necessary to avoid an ‘injustice’, the Tribunal may in considering the particular circumstances of the proceeding before it, consider the order is necessary to avoid interference with an ongoing investigation where there is evidence before the Tribunal that disclosure of the information to a certain person or persons may cause an injustice to the adult.
- [8]In this matter, applications have been made by TP for the appointment of a guardian and administrator following the execution of a warrant to remove certain persons from MXQ’s home. MXQ now lives with his family including TP and is settled in his current accommodation.
- [9]Prior to the hearing of the applications for the appointment of a guardian and administrator, the Tribunal made a confidentiality order to the extent that all documents relating to MXQ are confidential and must not be disclosed to SN and TF who are family members of MXQ. SN and TF did not attend the hearing of the applications for the appointment of a guardian and administrator.
- [10]At the commencement of the hearing of the applications for the appointment of a guardian and administrator, the Tribunal accepted the evidence of TP and heard the application for a confidentiality order in the absence of MXQ. In proceeding to hear the application in the absence of MXQ, the Tribunal was satisfied that it was necessary to do so because it would be prejudicial to the physical or mental health or wellbeing of MXQ to hear the application in his presence.[8] This is because there have been serious threats of harm made by family members to TP with whom MXQ now lives.
- [11]In this matter there is a need for the Public Guardian as MXQ’s guardian and the Public Trustee of Queensland as MXQ’s administrator to make decisions about MXQ’s personal and financial matters concerning complex family matters that have and will most likely involve further police investigation and intervention. It is necessary for the Tribunal exercising its power under s 109 of the GAA, to protect the disclosure of this information to avoid serious harm or injustice to MXQ, TP and CB.
- [12]The Tribunal proceeded to deliver oral reasons in relation to the applications for the appointment of a guardian and administrator and made orders accordingly. The Tribunal also made limitation orders under s 107 and s 109 of the GAA. As required under s 113 of the GAA, a copy of the Tribunal’s reasons for its decision to make the limitation order must be given to all active parties and the Public Advocate.
- [13]In making the orders for the appointment of a guardian and administrator and the limitation orders under the GAA the Tribunal considered the relevant human rights as set out in the Human Rights Act 2019 (Qld) as required by s 48. MXQ’s rights to recognition as a person before the law entitled to equal protection without discrimination, freedom of movement and privacy are all engaged and limited by the making of these orders. Taking into account my findings about the criteria set out in the GAA, the Tribunal is satisfied the limits imposed by the orders are reasonable and justified in accordance with s 13. The orders made are the least restrictive based on the information before the Tribunal.