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- Unreported Judgment
KMR v MLK QCATA 55
KMR v MLK  QCATA 55
Senior Member Stilgoe OAM
30 April 2015
APPEAL – GUARDIANSHIP – where application for appointment of guardian and administrator for former partner – where no address for adult – where adult could not be served with notice of hearing – where application dismissed – whether grounds for leave to appeal or appeal
Guardianship and Administration Act 2000 (Qld) ss 118, 163
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Senior Member Stilgoe
- KMR and MLK were, for a time, partners. MLK left KMR in December 2012. KMR was concerned for MLK’s welfare, so he asked the tribunal to appoint him as MLK’s guardian and administrator. KMR did not know where MLK was and could not tell the tribunal how to contact her. The tribunal refused KMR’s application because MLK had no knowledge of the application.
- KMR wants to appeal that decision. His only ground of appeal is that he is still concerned for MLK’s health and safety. He states that, if he is appointed as guardian and administrator, he would be able to look after her interests.
- Because KMR was the applicant in the proceeding below, he does have a right to appeal. To succeed in that appeal, KMR must show that the tribunal erred in its decision to refuse his application.
- The tribunal has a general obligation to observe the rules of natural justice. In matters of guardianship and administration, it has a particular obligation to give MLK notice of the hearing. Although there are exceptions to that requirement, KMR did not demonstrate that any of them applied. There was no evidence that notice to MLK would prejudice her health or wellbeing. There was no evidence that she was evading the hearing. She was not unconscious. The tribunal could not make reasonable inquiries as to MLK’s whereabouts because KMR gave it no assistance.
- Without an address for MLK, the tribunal could not give her notice of the application. If the tribunal had proceeded to hear the application, it would have breached its fundamental obligations and the requirements of the Guardianship and Administration Act 2000 (Qld). The tribunal was correct in its decision to dismiss KMR’s application.
- KMR was able to serve MLK with a copy of the notice of appeal. That does not cure the defect below. If KMR wants to persist with his application, he should start again, giving the tribunal proper notice of an address for service of MLK.
- The appeal is dismissed.
- On 22 April 2013 KMR lodged an application to be appointed as guardian and administrator for MLK. In his application he described himself as MLK’s “partner and carer”. He advised that MLK’s address was “unknown” and that MLK had a psychiatric disability / mental illness. KMR stated that MLK “needs help to purchase medication and food instead of cigarettes and alcohol and other things.” KMR raised concerns that MLK’s health was being ignored, she was refusing necessary services, was at risk of self harm and her safety was at risk through the actions of others.
- KRM advised that MLK was not taking her medication, was using drugs and excessive amounts of alcohol, was picking fights, had poor personal hygiene and was harming herself and others and that police had been involved in restraining her a number of time. KMR indicated that he had been the only one able to calm her down and that he could assist her to “regain a better life and help her get her children back”.
- KMR also provided a report from a GP stating that MLK did not have the capacity to make complex decisions.
- On 12 June 2013 KMR advised QCAT that he did not know where MLK was living. He stated that she had left in December 2012 and he hadn’t seen her since. On 26 June 2014 KMR stated again that he did not have MLK’s address.
- On 17 July 2013 QCAT dismissed KMR’s applications to be appointed as guardian and administrator for MLK. The Tribunal noted that:
- a)QCAT must in almost all circumstances give notice of applications and of hearings to “the adult” (in this case “the adult” is MLK).
- b)QCAT may proceed to hearing without notice in particular circumstances, including if the adult is unable to be located after the Tribunal has made reasonable inquiries into the adult’s whereabouts.
- c)KMR and MLK were former partners but had not seen each other for some 7 months. KMR had not provided QCAT with contact details for MLK and, despite requests from QCAT, had not provided contact details for her family so the Tribunal could make its own enquiries. Without a current address for MLK QCAT had not been able to provide her with notice of the application.
- d)KMR could only be appointed as a guardian or administrator if he was “appropriate” as that term is described in the legislation.
- The Tribunal found that it would be “quite unusual” for QCAT to hear the applications when MLK had not received notice. The Tribunal found further “In such a case, the Tribunal would need to be satisfied by specific and cogent evidence that MLK had impaired capacity to make decisions actually arising in her current circumstances and that there was a need for a substituted decision maker because she would do something involving an unreasonable risk of harm. I was not satisfied that there was cogent and acceptable evidence…of a need for an appointment…”
- The Tribunal also found “There was inadequate information to satisfy me that KMR was currently an appropriate person for appointment…or indeed whether he even had standing to bring the applications at all. An applicant must be a person who had a sufficient and continuing interest in MLK…There is no evidence that she is struggling at present with decision making. Her lifestyle may be different to the lifestyle approved of by Mr King but that does not mean inevitably that MLK needs support from a guardian or administrator.”
- KMR has lodged an appeal. He raises concerns that MLK is “drinking and smoking pot” and will be bashed and be placed either in jail or in a hospital. KMR states that he would be able to assist MLK “to have her problems fixed” and to spend some time with her children. KMR expands on why, in his view, MLK requires a carer. QCAT has no jurisdiction to appoint a carer and I will consider this matter on the basis that KMR seeks appointment as a guardian and administrator for MLK.
- KMR has now provided QCAT with an address for MLK and a notice of this appeal has been forwarded to her. No response has been received.
- This appeal will only succeed if the original decision was incorrect. That is, if the Tribunal should have proceeded to consider the application in the circumstances outlined above.
- KMR has not pointed to any particular error in the reasoning of the Tribunal. He disagrees with the outcome but that does not mean that it was wrong. I am unable to identify any error in the Tribunal decision. The decision is well reasoned and legally correct.
- There is no identified error in the Tribunal’s decision. The appeal is dismissed.
 Guardianship and Administration Act 2000 (Qld) s 163(1).
 QCAT Act s 28(3)(a).
 Guardianship and Administration Act 2000 (Qld) s 118(1)(a).
 Guardianship and Administration Act 2000 (Qld) s 118(2).
 Guardianship and Administration Act 2000 (Qld) s 118.
 Guardianship and Administration Act 2000 (Qld) s 118(2).
 Guardianship and Administration Act 2000 (Qld) s 15.
- Published Case Name:
KMR v MLK
- Shortened Case Name:
KMR v MLK
 QCATA 55
Senior Member Stilgoe, Member Goodman
30 Apr 2015