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If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Challenging a VCAT order

Information about what happens if someone disagrees with a guardianship or administration order.

If a person was not happy with the VCAT decision about appointing a guardian they can ask VCAT for written reasons for the decision. This is called a 'statement of reasons'. It explains why VCAT made the order. The statement of reasons can be useful to help decide whether to challenge the order. Applications must be made within 28 days of the decision being made.

See ss. 45, 46—Victorian Civil and Administrative Tribunal Act 1998 (Vic)(opens in a new window).

There are several different ways that a person can challenge an order if they are unhappy with the result:

Reassessments

VCAT must hold a reassessment hearing within 12 months of an order being made and at least once during each 3 year term of the order. It is usual for a guardianship order to be reviewed every 12 months and an administration order to be reviewed every 3 years.

See Reassessments.

Rehearings

A person can apply for a rehearing if VCAT made an order under the Act if they were:

  • a party to the hearing
  • the Public Advocate, or
  • a person entitled to notice of the application.

If the person was entitled to be notified, but they did not become a party to the hearing, they will need VCAT's permission to apply for a rehearing.

See s. 151—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

When applications cannot be made

A person cannot seek a rehearing if the original order was made by the President of VCAT. Also, applications cannot be made for rehearing of:

  • an application for rehearing
  • an application for leave to apply for a rehearing
  • an application for leave to apply for a rehearing of a reassessment.

See s. 153—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Time limit

Applications for a rehearing (or for leave to apply for a rehearing) have to be made within 28 days after the date of the order. If oral reasons were given for the original order, and then a party seeks written reasons, the time is calculated from the date that written reasons are given.

See s. 152—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Parties to a rehearing

Any party to the original proceeding is a party to the rehearing. The applicant is also a party to the proceeding, regardless of whether they were a party to the original hearing.

If the application is to a rehearing of a reassessment, VCAT may also order any other person to be joined as a party

See s. 154—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Who must be notified

When an application for a rehearing is made any person who was entitled to be notified about the original hearing must be notified about the rehearing. VCAT may also order notice to be given to another person.

See s. 155—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Attendance by the subject of the order

The person who is subject to the original order, that is the proposed represented person, represented person or supported person is expected to attend the hearing unless VCAT is satisfied that the person does not want to attend, or their attendance is impractical, or unreasonable (despite any alternative arrangements that VCAT may make, including facilitating attendance by phone or by video link.

See s. 156—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

What happens to the original order

Unless VCAT makes an order to stay (put on hold) the original decision until the final hearing can be decided, the original hearing will operate until the rehearing decision.

See s. 158—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Tribunal decision

When an application is made for a rehearing VCAT has all of the powers that it had at first instance during the rehearing. When making a decision VCAT may:

  • affirm the order made at the original hearing
  • vary the order
  • set aside the order and make another order.

See s. 157—Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Appeals

Appeals on a question of law must be heard in the Supreme Court. A person who is thinking of appealing should get legal advice before applying.

More information

Legislation

Guardianship and Administration Act 2019 (Vic)

  • s. 150—application for a rehearing
  • s. 151—application for rehearing of reassessment of order
  • s. 152—when may applications be made
  • s. 153—matters that cannot be reheard
  • s. 154—parties
  • s. 155—who is entitled to notice
  • s. 156—participation of represented person at the hearing
  • s. 157—rehearing
  • s. 158—effect of the first instance order pending a rehearing

See Guardianship and Administration Act 2019 (Vic)(opens in a new window).

Victorian Civil and Administrative Tribunal Act 1998 (Vic).

  • s. 45—request for a statement of reasons
  • s. 46—decision-maker to give statement of reasons on request

See Victorian Civil and Administrative Tribunal Act 1998 (Vic)(opens in a new window).

References

Victorian and Civil Administration Tribunal

Matters about guardianship and administration are dealt with in the Guardianship List at VCAT.

See VCAT—Guardianship and administration.

VCAT also has a guide see VCAT—Guide to revoke or reassess a guardianship or administration order.

Updated