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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

  1. The Public Guardian is appointed as guardian for MXQ for the following personal matters:
  1. (a)
    With whom MXQ has contact and/or visits;
  1. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in one (1) years.

ADMINISTRATION

  1. The Public Trustee of Queensland is appointed as administrator for MXQ for all financial matters.
  2. The Tribunal dispenses with the requirement for the administrator to provide a financial management plan.
  3. The Tribunal directs the administrator to provide accounts to the Tribunal when requested.
  4. The appointment remains current until further order of the Tribunal. This appointment is reviewable and is to be reviewed in one (1) year.

NOTICE OF INTEREST IN LAND

  1. Before 25 January 2022 the administrator must:
  1. (a)
    Record the appointment as administrator on any property registered in MXQ’s name with the Registrar of Titles by lodging the appropriate notice with a copy of the Tribunal’s appointment decision.
  2. (b)
    Provide confirmation to the Tribunal that this has been completed by providing:
  1. (i)
    A copy of the title search conducted identifying MXQ's property; and
  2. (ii)
    A copy of the Titles registry “Lodgement Summary Form” confirming the notice has been lodged for each property held by MXQ.
  1. (c)
    If no property is held, provide a copy to the Tribunal of a Record of a Search of the Land Registry, from the Registrar of Titles confirming no property is held.
  1. If the ownership of any property of MXQ changes in any way or MXQ acquires an interest in another property the administrator must, within fourteen (14) days of such changes:
  1. (a)
    Give a copy of this order to the Registrar of Titles and
  2. (b)
    Give a notice to the Registrar about the changes to MXQ's interest in another property.

LIMITATION ORDERS

  1. The Tribunal orders that pursuant to s 107(1)(b) of the Guardianship and Administration Act 2000 (Qld) MXQ is excluded from the hearing of application numbered GAA10205-21.
  2. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 (Qld) all documents concerning MXQ are confidential and must not be disclosed to SN and TF.

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. [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. [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. [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. [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. [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. [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. [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. [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. [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. [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. [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. [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. [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.

Footnotes

[1]  Ibid, s 105.

[2] Acts Interpretation Act 1954 (Qld), s 14A.

[3]  GAA, s 6 and s 11B.

[4]  Ibid, s 11A.

[5] JSM [2011] QCAT 351.

[6] DAA [2009] QGAAT 8, [42].

[7] JSM’s case, [7] and see DAA’s case, [42].

[8]  See s 118(2)(a) of the GAA.

Close

Editorial Notes

  • Published Case Name:

    MXQ

  • Shortened Case Name:

    MXQ

  • MNC:

    [2021] QCAT 381

  • Court:

    QCAT

  • Judge(s):

    Member Browne

  • Date:

    25 Oct 2021

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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