ZOF v NSW Trustee and Guardian (No. 2) [2020] NSWCATAP 254

ZOF v NSW Trustee and Guardian (No. 2) [2020] NSWCATAP 254

The Appeal Panel was not satisfied that a financial management order should continue. The Appellant's present estate was limited to Centrelink income and there was no suggestion he could not manage that estate. Although it was more probable than not that he would receive some future compensatory payment, the amount and timing were too speculative to establish a current need for financial management. The existing order had been of no utility and the uncontradicted evidence showed that it negatively affected the Appellant's cultural identity, particularly given his history as a member of the Stolen Generations. The Panel was therefore not satisfied that an order was currently needed or in...

Jurisdiction
Australia
Judgment Date
03 December 2020
Procedural Posture
Internal Appeal From a Guardianship Division Financial Management Order / Appeal Panel New Hearing
Outcome
Appeal allowed; Tribunal's financial management orders set aside; application for appointment of a financial manager dismissed.
Legal Topics
['financial Management Order' 'capacity to Manage Affairs' 'best Interests' 'need for Financial Management' 'cultural and Linguistic Background' 'stolen Generations']
['administrative Law' 'guardianship and Financial Management' 'appeals'] ['financial Management Order' 'capacity to Manage Affairs' 'best Interests' 'need for Financial Management' 'cultural and Linguistic Background' 'stolen Generations']

Case Brief

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Procedural Posture

Internal Appeal From a Guardianship Division Financial Management Order / Appeal Panel New Hearing

Legal Issues

  1. 1 ['Whether the Appellant was not capable of managing his own affairs for the purposes of s 25G(a) of the Guardianship Act 1987 (NSW).' "Whether there was a current need for another person to manage the Appellant's affairs on his behalf under s 25G(b) of the Guardianship Act 1987 (NSW)." "Whether making or continuing a financial management order was in the Appellant's best interests under s 25G(c) of the Guardianship Act 1987 (NSW), including having regard to his Aboriginal identity and experience as a member of the Stolen Generations."]

Ratio Decidendi

The Appeal Panel was not satisfied that a financial management order should continue. The Appellant's present estate was limited to Centrelink income and there was no suggestion he could not manage that estate. Although it was more probable than not that he would receive some future compensatory payment, the amount and timing were too speculative to establish a current need for financial management. The existing order had been of no utility and the uncontradicted evidence showed that it negatively affected the Appellant's cultural identity, particularly given his history as a member of the Stolen Generations. The Panel was therefore not satisfied that an order was currently needed or in...

Court Disposition

Appeal allowed; Tribunal's financial management orders set aside; application for appointment of a financial manager dismissed.

Orders

  • ['The Appeal is allowed.' "The Tribunal's orders dated 3 October 2019 are set aside, and in substitution, the Appeal Panel makes the following order: the application for the appointment of a financial manager for the Appellant is dismissed." "The TAG is directed to release to the Appellant any monies in its...