AM
[2015] WASAT 87
•17 AUGUST 2015
AM [2015] WASAT 87
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 87 | |
| GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) | |||
| Case No: | GAA:72/2015 | 1 MAY 2015 | |
| Coram: | MS F CHILD (MEMBER) | 17/08/15 | |
| 44 | Judgment Part: | 1 of 1 | |
| Result: | Guardian appointed Administrator appointed | ||
| B | |||
| PDF Version |
| Parties: | AM JM TM |
Catchwords: | Guardianship and administration Represented person young adult with intellectual disability Allegations of neglect and financial abuse not substantiated Conflict between parents Need for clear authority in decisionmaking Public Advocate appointed to determine contact Mother appointed for all other guardianship functions |
Legislation: | Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 44, s 44(1), s 44(2), s 64(1), s 68, s 68(1), s 68(3), s 97, s 112(4), s 110ZD(b) State Administrative Tribunal Act 2004 (WA), s 32, s 77 |
Case References: | Briginshaw v Briginshaw (1938) CLR 336 Edna May Collins by her next friend Glenys Lesley Larraine Poletti v May [2000] WASC 29 KWD [2011] WASAT 4 S v State Administrative Tribunal [2012] WASC 306 |
Summary | Applications filed by JM sought his appointment as guardian and as administrator of the estate of AM, his 27-year-old son who has an intellectual disability. JM made allegations that AM's mother, JM's estranged wife, had neglected AM's hygiene and health since their separation a year before. JM also said that the mother had misappropriated or intended to misappropriate AM's funds. ,The Tribunal found that due to his intellectual disability, AM was reliant on others for decision-making in all aspects of his life and was a person for whom both guardianship and administration orders could be made.,Although the Tribunal did not accept the allegations made by the father, because of the ongoing conflict between AM's parents and their inability to agree about decisions for him, the Tribunal determined that guardianship and administration orders were needed to provide clear authority and certainty for personal decision-making for AM, and formal authority and transparency in the decisions made about his estate. ,Regarding the allegations of neglect, the Tribunal accepted the submissions of the Public Advocate's investigator that the investigation had revealed that those involved in contact with AM, including service providers and his doctor, had reported that the mother provided appropriate personal care for AM. ,The Tribunal appointed the Public Advocate as guardian to make decisions about the contact AM had with JM in the course of the proceedings due to the continuing conflict between the parents about this issue. ,Despite the finding that AM's personal care needs were met and that informal decision-making had been operating all his life, the Tribunal determined that the level of conflict between the parents meant that informal decisionmaking could not continue and that decisions about AM's personal care should be formalised, and guardianship orders with functions to decide where AM should live, to determine the services to which he should have access, and to make treatment decisions on his behalf should be made. ,The Tribunal found the mother suitable for appointment as AM's guardian, other than to make contact decisions.,The Tribunal directed the mother to communicate with the father when the represented person received medical treatment. This direction was intended to avoid inconsistent treatment being given to AM. ,In respect of the administration application, the Tribunal found the allegation of misappropriation or intended misappropriation of AM's funds by the mother not to be substantiated.,The Tribunal accepted that AM's estate was a simple one; that his mother had managed his finances informally during the marriage and since separation, and that significant savings had been accumulated from his pension income as his parents had largely financially supported him. However, the Tribunal accepted the submission that the appointment of an administrator with the usual requirement that administrators file accounts annually with the Public Trustee would provide some oversight of the management of AM's financial affairs and this, in turn would provide reasonable reassurance for JM about the appropriate management of AM's estate.,The Tribunal found there was a need for the appointment of an administrator of his estate to provide accountability and transparency about the expenditure of his funds in the changed circumstances of his parent's separation and the conflict and distrust between them. ,Despite the conflict between the parents, the Tribunal found the mother suitable for appointment as the administrator and so appointed her as the plenary administrator of AM's estate.,The Public Advocate's appointment as guardian to determine contact was confirmed on review for a period of two years. The orders appointing the mother as guardian and administrator were also made reviewable in two years. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : AM [2015] WASAT 87 MEMBER : MS F CHILD (MEMBER) HEARD : 1 MAY 2015 DELIVERED : 17 AUGUST 2015 FILE NO/S : GAA 72 of 2015
- GAA 1450 of 2015
- Represented Person
JM
Applicant
TM
Interested Party
Catchwords:
Guardianship and administration Represented person young adult with intellectual disability Allegations of neglect and financial abuse not substantiated Conflict between parents Need for clear authority in decisionmaking Public Advocate appointed to determine contact Mother appointed for all other guardianship functions
Legislation:
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 44, s 44(1), s 44(2), s 64(1), s 68, s 68(1), s 68(3), s 97, s 112(4), s 110ZD(b)
State Administrative Tribunal Act 2004 (WA), s 32, s 77
Result:
Guardian appointed
Administrator appointed
Summary of Tribunal's decision:
Applications filed by JM sought his appointment as guardian and as administrator of the estate of AM, his 27-year-old son who has an intellectual disability. JM made allegations that AM's mother, JM's estranged wife, had neglected AM's hygiene and health since their separation a year before. JM also said that the mother had misappropriated or intended to misappropriate AM's funds.
The Tribunal found that due to his intellectual disability, AM was reliant on others for decision-making in all aspects of his life and was a person for whom both guardianship and administration orders could be made.
Although the Tribunal did not accept the allegations made by the father, because of the ongoing conflict between AM's parents and their inability to agree about decisions for him, the Tribunal determined that guardianship and administration orders were needed to provide clear authority and certainty for personal decision-making for AM, and formal authority and transparency in the decisions made about his estate.
Regarding the allegations of neglect, the Tribunal accepted the submissions of the Public Advocate's investigator that the investigation had revealed that those involved in contact with AM, including service providers and his doctor, had reported that the mother provided appropriate personal care for AM.
The Tribunal appointed the Public Advocate as guardian to make decisions about the contact AM had with JM in the course of the proceedings due to the continuing conflict between the parents about this issue.
Despite the finding that AM's personal care needs were met and that informal decision-making had been operating all his life, the Tribunal determined that the level of conflict between the parents meant that informal decisionmaking could not continue and that decisions about AM's personal care should be formalised, and guardianship orders with functions to decide where AM should live, to determine the services to which he should have access, and to make treatment decisions on his behalf should be made.
The Tribunal found the mother suitable for appointment as AM's guardian, other than to make contact decisions.
The Tribunal directed the mother to communicate with the father when the represented person received medical treatment. This direction was intended to avoid inconsistent treatment being given to AM.
In respect of the administration application, the Tribunal found the allegation of misappropriation or intended misappropriation of AM's funds by the mother not to be substantiated.
The Tribunal accepted that AM's estate was a simple one; that his mother had managed his finances informally during the marriage and since separation, and that significant savings had been accumulated from his pension income as his parents had largely financially supported him. However, the Tribunal accepted the submission that the appointment of an administrator with the usual requirement that administrators file accounts annually with the Public Trustee would provide some oversight of the management of AM's financial affairs and this, in turn would provide reasonable reassurance for JM about the appropriate management of AM's estate.
The Tribunal found there was a need for the appointment of an administrator of his estate to provide accountability and transparency about the expenditure of his funds in the changed circumstances of his parent's separation and the conflict and distrust between them.
Despite the conflict between the parents, the Tribunal found the mother suitable for appointment as the administrator and so appointed her as the plenary administrator of AM's estate.
The Public Advocate's appointment as guardian to determine contact was confirmed on review for a period of two years. The orders appointing the mother as guardian and administrator were also made reviewable in two years.
Category: B
Representation:
Counsel:
Represented Person : N/A
Applicant : Mr G Cridland
Interested Party : Dr J Hockley
Solicitors:
Represented Person : N/A
Applicant : DCH Legal
Interested Party : Leach Legal
Case(s) referred to in decision(s):
Briginshaw v Briginshaw (1938) CLR 336
Edna May Collins by her next friend Glenys Lesley Larraine Poletti v May [2000] WASC 29
KWD [2011] WASAT 4
S v State Administrative Tribunal [2012] WASC 306
Proceeding before the Tribunal
1 These reasons relate to decisions of the Tribunal made on applications under the Guardianship and Administration Act 1990 (WA) (GA Act) by JM (applicant), the father of AM (represented person), filed on 9 January 2015 seeking the applicant's appointment as guardian and administrator of the estate of the represented person.
2 Following the filing of the application, a case management member of the Tribunal made prehearing orders on 15 January 2015. These orders provided for listing of the applications for hearing on 25 February 2015 (first hearing), alerting parties to the opportunity for inspection of documents filed in the proceeding pursuant to s 112(4) of the GA Act on an application of a party, referral of the applications to the Public Advocate for investigation pursuant to s 97(1) of the GA Act and notification to the Public Advocate (and to the parties) of her possible appointment as guardian of the represented person.
3 At the first hearing, the applicant appeared and was legally represented. The mother of the represented person, TM (mother), also attended and was legally represented. The represented person's sister, his brother, his paternal aunt and the Public Advocate's investigator also attended.
4 At the first hearing, not all documents had been inspected by the parties. The matter was stood down to enable the representatives to read the report of the Public Advocate. Bundles of the documents filed, including the Public Advocate's report received by the Tribunal on 23 February 2015, were made available on 25 February 2015 to both the applicant and the mother through their legal representatives.
5 The hearing of the applications was not completed at the first hearing. When the matter was being listed for a further hearing, the parties were put on notice of the obligation to make the necessary arrangements for any witnesses they wished to call, including professional witnesses. The applications were adjourned to 8 April 2015.
6 No further directions were sought and the Tribunal received no requests for summons to issue to witnesses.
7 At the hearing on 8 April 2015 (second hearing), it became apparent that despite orders made allowing inspection of all material filed with the Tribunal by the applicant and by the mother through their representatives, an email sent to the Tribunal by the Public Advocate's investigator following the first hearing had not been copied to the representatives of the applicant and the mother.
8 The failure of the Tribunal to provide the material was explained to counsel for the applicant at the second hearing as likely to have been inadvertence on the part of the staff of the Tribunal.
9 Because the Tribunal has previously decided that material filed with it in GA Act proceedings becomes subject to the regime in s 112(4) of the GA Act (see for example KWD [2011] WASAT 4), the responsibility for providing the material to the parties to whom access has been granted rests with the Tribunal and not with the party filing the material.
10 The email correspondence was provided to the parties in the course of the second hearing, and an opportunity to make further written submissions by the applicant and responsive submissions by other parties was invited.
11 The application for the appointment of an administrator was adjourned for the written submissions to be filed.
12 The Tribunal determined at the second hearing that although the hearing of the applicant's application for the appointment of a guardian had not been concluded, in the circumstances of the inability of the parents of the represented person to regularise the contact the represented person had with the applicant, a short term order appointing the Public Advocate as guardian should be made until the matter could be finally determined after the filing of the written submissions.
13 The guardianship order appointing the Public Advocate as guardian for the represented person was limited to the function to determine the contact the represented person should have with others and the extent of that contact. This order was set for review on 1 May 2015 to bring it into line with the next hearing.
14 Counsel for the mother made oral submissions at the conclusion of the second hearing. Counsel for the applicant filed written submissions on 15 April 2015. The Public Advocate's investigator and the Acting Public Advocate filed submissions on 16 April 2015.
15 On 1 May 2015, on review of the guardianship order, the Tribunal heard further from the investigator of the Public Advocate, the Acting Public Advocate, the mother and the paternal aunt. The applicant did not appear and was not represented. The aunt, the applicant's sister, confirmed that the applicant had notice of the hearing.
16 The orders determining the application for the appointment of an administrator and the review of the guardianship order were made on 1 May 2015. These written reasons, published in compliance with s 77 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) are the reasons for the decisions made. An extension for the publication of the reasons to 17 August 2015 was granted by the President of the Tribunal.
17 In written decisions of the Tribunal made on matters commenced under the GA Act, information which might identify the represented person, parties or witnesses is removed in compliance with the requirements of the GA Act.
Application
18 In his application filed 9 January 2015, the applicant says that orders should be made appointing him as guardian and administrator of the estate of the represented person because:
Mother has demonstrated she lacks responsibility in managing [the represented person's] affairs' 'has been reckless in this' '[the mother]' has failed to obtain appropriate medical attention for [the represented person] 'there is physical evidence by way of escalated selfharming behaviour [and] that he has experienced increased psychological distress since he has resided solely with his mother.
19 The application also says that the applicant has been unable to have regular contact with the represented person.
20 The application filed says that the represented person is 'owed approximately $80,000'.
21 During the hearing, it was submitted by counsel for the applicant that there was a need for the orders sought because of the 'break up in the family unit' of the represented person and because the skin condition of the represented person had deteriorated due to 'decisions made in respect of the [represented person's] care and hygiene' (T:11; 25.02.15).
22 In the second hearing, the applicant said that the represented person's funds had been 'misappropriated' by the mother and had been used for 'lifestyle spending' and that she owed the represented person $80,000. The applicant says this figure is based on his calculation of an estimated $20,000 annual pension entitlement of the represented person over a five year period. It is also submitted that the mother intended to transfer funds in the represented person's bank account into her own account.
Legislation
23 To appoint an administrator of the estate of a person, the Tribunal must be satisfied that the person is unable by reason of a mental disability of making reasonable judgments about any or all of his estate and is in need of an administrator of his estate (s 64(1) of the GA Act).
24 To appoint a guardian or to confirm an order on review, the Tribunal must be satisfied that the represented person is unable to look after his own health and safety, is unable to make reasonable judgments about his person, or is in need of oversight and care in the interests of his own health and safety, and is in need of a guardian s 43(1)(b) of the GA Act.
25 These provisions are subject to principles set out in s 4 of the GA Act which provide that persons are presumed to be capable of conducting their own affairs and making judgments about their persons and about their estates unless that presumption is displaced by the evidence. The principles also provide that orders should not be made unless needed and only if there are no less restrictive means by which the needs of the person can be met. The least restrictive orders should be made and the wishes of the person should be ascertained. The primary concern of the Tribunal is the best interests of the represented person.
26 If the Tribunal decides that orders are required, the question of the suitability of proposed appointees must be considered in line with the legislation: s 44 and s 68 of the GA Act.
Evidence and material before the Tribunal
27 Documents filed together with his application on 9 January 2015 by the applicant include:
1) A number of documents apparently prepared for the Family Law property settlement proceedings which are ongoing between the applicant and the mother, including a document apparently prepared by the applicant in which the applicant rejects the allegation he assaulted the mother a number of times but admits he assaulted the mother on 13 April 2013 after which the applicant called the police.
2) Bank statements for an account in the name of the represented person between the dates 16 June 2009 and 2 August 2012 and a bank statement for 14 December 2013.
3) Nine pages of text messages said by the applicant to be between the applicant and the mother between 15 July 2014 and 30 December 2014.
4) A bundle of photographs, which were later tendered by the applicant at the first hearing on 25 February 2015 (Exhibit 1). The applicant says the photographs are of the represented person (one with the applicant) taken between June and December 2014 by the applicant on his mobile telephone. (Three photographs, which appear to be of a bath with discoloured water, are presumed to have been taken prior to 2012). Most photographs are unmarked as to the date taken. Many of the photographs are duplicates; some are out of focus. There are three large photographs, one medium sized photograph and 125 smaller photographs in the bundle. Some photographs have dates written on the back, some have 'post it notes' attached to them for the following dates: 30 August; 20 September; 25 October; 9 November; 22 November; 29 November and 14 December 2014 (notated 'Last time seen'). Counsel for the applicant said in the first hearing, and in submissions filed, that there is a memory stick with additional photographs. (The memory stick was supplied to the Public Advocate's investigator but because of computer security policies could not be read. The investigator conceded at the first hearing that he intended to view them on his home computer but had not done so. No additional photographs have been submitted to the Tribunal in the course of the proceedings.)
5) A doctor's guide completed by Dr AL, child psychiatrist, dated 6 January 2015. Dr AL states that as a psychiatrist, he saw the represented person in 1998, and then as a 'casual observer for a few years as he was friends [with] his aunt'. Dr AL states that the represented person is 'severely intellectually disabled'; his condition is a 'static one'. 'His behaviour and communication skills might improve given a good home, lack of stress'. The doctor's opinion is that the represented person is incapable of decision-making in the spheres of personal health care, his living situation and financial affairs. In respect of the represented person's attendance at the hearing, Dr AL's view is that attending the hearing would be 'irrelevant' for the represented person; however he would 'demonstrate his intellectual disability'. Dr AL goes on to say 'this might be cruel to him, however he might demonstrate his clinginess to [the applicant], his father'. In terms of communication, Dr AL notes the applicant's father 'to know [the represented person] well and can understand his body and behavioural language'.
6) A letter from Dr AL to a general practitioner dated 17 October 1998 refers to his assessment of the represented person in 1998 and makes recommendations for his treatment.
7) A letter from Dr AL dated 6 January 2015 to the Tribunal, part of which is reproduced later in these reasons.
8) A doctor's guide from Dr KS, a general practitioner, dated 5 January 2015 stating that 'she has known the represented person for 6 months'. She notes '[the represented person has been a] patient at the practice since 2009'. She says she is the regular medical attendant of the represented person and the last time she had seen him was on 29 October 2010. Her report states that the represented person has a diagnosis of 'Cri du Chat Syndrome'; his condition is described as static one. In her opinion, the represented person is incapable of decisionmaking in the spheres of personal health care, his living situation and financial affairs. She further states that it would be detrimental for the represented person to attend the hearing as '[he is] easily upset, gets frustrated and is unable to verbalise'. She states he can make no contribution to the hearing.
28 The Tribunal, through its own standard processes, obtained the following:
9) Report of the Disability Services Commission (DSC) Local Area Coordinator (LAC) which notes that the represented person has been registered with DSC since 1988 and has a diagnosis of intellectual disability.
The LAC reports 'ongoing contact since 16 February 1999'. The report notes the following:
• Lives in the family home with his sister and mother.
• Mother separated from father [name deleted] on 8/4/2014. [Father] no longer resides in the family home.
• DSC funding to access community managed by [mother] [who] is the primary carer, [and] main contact person with the LAC.
• Unaware of any person who has a negative influence on [the represented person].
• Parents have separated.
• LAC unaware of any psychiatric or behavioural issues.
• Appears to understand what is being said to him but not able to express himself verbally.
• No reason to believe [the represented person] needs a guardian or administrator.
• Can make no recommendation on whether guardian or administrator is required.
10) The Tribunal has also had regard to the previous file GAA 2261 of 2012 and 2262 of 2012 of the previous applications to the Tribunal for the appointment of a guardian and administrator made by the applicant in 2012. The documents include a letter signed by the applicant withdrawing his applications. Material from this file was provided to the applicant and the mother's representatives.
11) The report of the Public Advocate's investigator dated and filed with the Tribunal on 23 February 2015 includes: his report of his attendance and assessment of the represented person's home; on his interviews with the represented person together with a staff member from the Alternative to Employment (ATE) service provider; and summaries of his interviews with the general practitioner Dr KS, the LAC from the DSC, carers from the [name suppressed] Group (a service provider) the HACC Coordinator for [name suppressed] Group, carers involved with a youth group the represented person attends and a recreation association in which the represented person participates, a neighbour, and family members including the represented person's brother, sister and paternal aunt.
29 Over the course of the three hearings, the Tribunal heard from the applicant, the mother, the paternal aunt and the Public Advocate's investigator. No other witnesses were called to give evidence. Submissions were made on behalf of the mother at the end of the second hearing. As noted, the Tribunal received written submissions filed on behalf of the applicant, and final submissions from the investigator and from the Acting Public Advocate.
30 Although the submissions filed by the applicant take issue with the conduct of the investigation and the report of the Public Advocate's investigator and the conduct of the proceedings by the Tribunal, including assertions that the proceedings breached obligations of procedural fairness, as submitted by the Acting Public Advocate, the proceedings in this matter were largely conducted in accordance with the procedures adopted by the Tribunal in the conduct of matters commenced under the GA Act.
31 It is open for the applicant to seek review of the decisions of the Tribunal.
Matters for determination
32 The questions, which the Tribunal must determine in these applications, are:
1) Is the represented person a person for whom guardianship and administration orders may be made?
2) Is the represented person in need of orders or are there are less restrictive alternatives to meet his needs?
3) What are the wishes of the represented person?
4) If orders are to be made who is suitable for appointment.
5) What functions should be included in any orders made?
6) What should be the term of any orders made?
Is the represented person a person for whom orders can be made
33 The represented person did not attend the hearings before the Tribunal. The Tribunal accepts the opinions of both Dr AL and Dr KS that the represented person could not contribute (verbally) to the hearing and further that it would not be in his best interests to attend.
34 The reports of Dr AL and Dr KS both say the represented person has an intellectual disability. His registration with DSC confirms this. Although the represented person is reported to be 'non-verbal', he is reported by the LAC of DSC to understand what is being said to him.
35 Both Dr AL and Dr KS state that the represented person is not able to make decisions about his personal health care, his living situation or his financial affairs. No party takes any issue with this aspect of the evidence and all agree that the represented person is a person for whom orders may be made.
36 Based on the medical and other professional reports and the material and evidence before the Tribunal regarding the represented person's functioning, his requirement for supervision, prompting, care and support in respect of his activities of daily living and his access to the community, the Tribunal finds that the represented person is a person for whom orders may be made.
37 The represented person is unable, by reason of his lifelong intellectual disability to make reasonable judgments about his estate. He is therefore a person for whom an administration order may be made.
38 The represented person is unable to look after his own health and safety and is reliant on others for his most basic needs. He is not able to make reasonable judgments about his person and is dependent on others for decisionmaking about his health care and other personal decisions. He requires supervision for his safety and prompting about his needs. He is in need of oversight and care in the interests of his own health and safety and he is therefore a person for whom a guardianship order may be made.
Wishes of the represented person
39 The principles require that the Tribunal attempt to ascertain the wishes of the represented person: s 4(2)(f) of the GA Act. The referral to the Public Advocate included a request to investigate the wishes of the represented person.
40 In the circumstances that the represented person has a communication disability-being described as non-verbal-and has both medical reports before the Tribunal state that it would not be in his the best interests to attend the hearing, the Tribunal is reliant on reports of other persons as to the wishes of the represented person.
41 The Public Advocate's investigator interviewed the represented person and reports that the represented person was willing to communicate with the investigator with assistance and support from the program manager of the ATE program and with the use of visual aids. The represented person is reported to try to speak and to have used sounds, gestures and expressions to communicate. He is reported to have participated in the interview happily and modelled the behaviour of the investigator in note-taking. The investigator reports that the represented person knew that his parents were no longer together, was conscious of the differences between them and was momentarily upset about this but was able to recover. The investigator reports that the represented person was able to communicate that he was happy at home, liked to go shopping and might like his own house but that his mother had to live with him. The investigator submits that the represented person's ability to put across his wishes regarding the proceedings before the Tribunal is limited.
42 In addition, participants in the hearing report the following views:
43 The represented person: likes routine, enjoys outings with the applicant to the beach, for meals and enjoys the lights at the Casino (applicant); likes his own room and his personal things (mother); enjoys his recreational activities (mother and reported comments of carers); becomes anxious about prompting about toileting because of past experiences (mother); likes to help others, and is more able to participate in a group setting (carers reported by the investigator).
44 The Tribunal concludes from all the material before it that the represented person is able to express his wishes in an immediate sense and may have strong views about some matters, but his ability to express views about the applications before the Tribunal is very limited.
Is the represented person in need of guardian and administration orders?
Guardianship
45 The allegations made by the applicant in the application, in his statements in the hearings, and in submissions made on his behalf may be summarised as follows:
1) Neglect of the represented person's hygiene by the mother which caused deterioration in his skin condition and an increase in his acne.
2) Escalation in self-harming behaviour of the represented person and increased injuries to his hands and arms caused by neglect of his needs by the mother.
3) Medical treatment not being sought by the mother for the alleged deterioration in the skin condition of the represented person and the applicant's attempt to arrange medical treatment blocked by the mother.
4) Deterioration in management of the represented person's incontinence while in the care of the mother.
5) Neglect of the represented person's dental care by the mother.
6) Restriction of contact between the represented person and the applicant by the mother.
Neglect of hygiene
46 The applicant says that he began taking photographs on his mobile telephone of the represented person from June to December 2014 to document what he says was a deterioration in the represented person's skin which he contends is caused by a deterioration in the personal hygiene of the represented person since the applicant's separation from the represented person's mother in April 2014 when the applicant left the family home. The applicant says that the acne and numerous sores on the represented person's neck and face shown in the photographs produced had not been present to this extent prior to the separation.
47 The applicant says he conveyed his concerns about the represented person's skin condition to the mother in a text message on 12 December 2014. The following is the text of the message to which the applicant refers:
December 14, 2014 19:23
[I]t would seem [the represented person's] hygiene level is at [pitiful] level. When picked up this morning his face was oily. It obvious it had not had soap and water applied to it. Since I've had up here I have had some people question me [on] that matter so some of my friends chip in and went chemist got him a care package to treat the boils and abscesses on his face and neck. It's proof spending 15,000 on a total renewed bathroom was a total waste as proof of [the represented person's] face and skin I will send you the photos the girls took I have had to edit their remarks I do hope the rest of you using that bathroom haven't boils pimples and abscesses and if not how is it still have all this with a brand-new bathroom or is it too new for him to use he has been cleaned and scrubbed from head to toe he is now ready to be picked up I look forward to [any] comments.
48 The applicant says he showed the photographs of the represented person in January 2015 to Dr AL, a child psychiatrist who had assessed the represented person in 1998 and had seen the represented person socially on occasions since that time.
49 It is assumed that the photographs shown to Dr AL are those that were later submitted to the Tribunal and tendered as Exhibit 1 at the first hearing.
50 The report of Dr AL addressed to the Tribunal dated 6 January 2015 includes the following:
I had an opportunity on 6 January [it is assumed Dr AL means 2015] to look at mobile phone photos father had taken since about July 2014. These photos showed [the represented person] to be covered in (self) bite marks marks to his hands. Infected hands from these bites pimples and pustules on his hands arms neck and chest. His ears were filled with wax and appeared dirty. Photos from July 2014 to December 2014 showed his skin infections getting worse. Several photos of his face and head showed an expression of distress. In 1998, I remember his skin being clear. [The represented person] seemed happy, excited to show things. I have no recall of him his being dirty, distressed, nor with any significant skin bite marks, pustules and infections. [The represented person's] father wanted me to fill in the report to SAT. He also said that in his view … [the represented person] might not have been washed properly. I told him in my experience with disabled children, self-mutilation was often a sign of frustration and distress.
- It is submitted that the report of Dr AL who viewed the photographs and provides his expert opinion as a child psychiatrist on them, supports the contention that the represented person's skin had deteriorated.
51 'Skin infections' is understood to be a global term applied both to the acne and the wounds on the represented person's hands. In the report of Dr AL and throughout the submissions made, there is a conflation of the acne condition suffered by the represented person and the injuries on his arms caused by biting. However, there is no evidence before the Tribunal which links them.
52 The preliminary view of the Tribunal, expressed in the first hearing, was that there was no evidence before the Tribunal that established the nature of the represented person's skin condition, or that there had been deterioration of it in the period as asserted by the applicant (T:48, 50, 51 and 52; 25.02.15).
53 No additional evidence was called and the applicant relies on the photographs submitted and the report of Dr AL to support the allegations made by the applicant of neglect of the represented person by the mother.
54 When the applicant was asked about his contention that the hygiene of the represented person had been neglected since the separation in April 2014, and as a consequence, the represented person had a lot more pimples on his face and neck (T:13; 25.02.15), the applicant referred to an incident in or around June 2012 where he relates that 'he pulled the represented person from a bath which had faeces swimming in it'. He said he was disturbed about the personal care of the represented person (at that time) because he had not been 'prescrubbed' before getting in the bath (T:13; 25.02.15).
55 Some of the photographs (undated) tendered by the applicant show a bath with discoloured water in it, which it is assumed are said to support the applicant's evidence regarding this incident.
56 At the second hearing, the represented person's aunt, who has a nursing background, said she saw the represented person in October 2014 and again in December 2014. In her assessment the represented person's skin had deteriorated and on 14 December 2014 she said in her view the 'pimples were obviously infected'. She said it was not on her advice that the applicant took the steps he described in the first hearing (T:23; 25.02.15) to 'scrub' the represented person skin 'clean' with an exfoliating glove on 14 December 2014. She describes this as a 'lay decision' (T:72; 8.04.14).
57 In the first hearing, the Public Advocate's representative drew the attention of the Tribunal to the brief report of Dr KS which notes she saw the represented person on 24 October 2014 the day before the photograph dated 25 October 2014 was taken. The investigator reports that when Dr KS was questioned by him about the allegations made about the represented person's care, the investigator reported that Dr KS:
… had no concerns about his skin at all. She acknowledged the acne problem. She said he was on a medication for the acne[.] I understand it is the only medication he is on.
(T:41; 25.02.15).
58 Dr KS was not called to give evidence, and the parties did not ask for the issue of a summons to her.
59 Both parents say the represented person has acne. Both parents say that his condition pre-existed their separation. The applicant says that the represented person has scars on his body from previous pimples, which have healed (T:13; 25.02.15). It is accepted that the represented person has had an acne condition for some years.
60 Even if the evidence of the applicant, together with the opinion of Dr AL based on his assessment of the photographs of the represented person's acne, that there was a deterioration in the represented person's skin in the period between June and December 2014, and the evidence of the aunt that the represented person's pimples were infected in December 2014 is accepted, there is no evidence before the Tribunal that it is a lack of hygiene or neglect of the represented person's personal care that causes or contributes to this condition.
61 The Tribunal does not accept the allegation that the represented person was in a bath with faeces in it in 2012-even if true, given his acknowledged faecal incontinence-supports the contention that the mother neglects the represented person's personal care.
62 The Tribunal finds that the photographs show wax in the ears of the represented person but, having examined the photographs, the Tribunal does not conclude that the represented person's ears 'look dirty' in the photographs submitted to the Tribunal.
63 The Public Advocate's investigator provides a summary of the opinions of service providers who were in direct contact with the represented person regarding the presentation of the represented person and their reported assessment of his care by the mother.
64 The Tribunal relies on this report that the service providers interviewed who are in regular contact with the represented person in this period did not report any concerns to the investigator about the represented person's hygiene or supported the contention of the applicant when it was put to them by the investigator that the personal care of the represented person was neglected by the mother.
65 The focus of the submissions made on behalf of the applicant regarding the investigator's report is on deficits said to exist in the way this material was gathered and presented to the Tribunal. The content of the investigator's report, specifically the views of persons reported to be in recent regular (some frequent) contact with the represented person, is not addressed. None of the service providers were called by the applicant to give direct evidence to the Tribunal about the represented person's presentation, or to be challenged on their reported assessments of his presentation, personal care or his hygiene although the applicant was on notice at the first hearing that it was open to him to call other witnesses.
66 The opinion of the service providers reported by the investigator is that the mother was managing the represented person's care appropriately. The paternal aunt does not share this view, but, on her own evidence, she did not have the same level of contact with the represented person as the service providers. She said she had seen the represented person 'a few times [a] year' (T:71; 8.04.15) but some of the service providers are in weekly contact.
67 For example, carers from [name suppressed] have weekly contact with the represented person and the summary of the reported comments from that provider in the investigator's report is as follows:
… these allegations are not true [the represented person] is always dressed nicely … he joins in on activities ... he went home with paint on him the other day … he loves to paint … he loves the movies … he likes getting out and about on the bus. I have no concerns at all about his skin. He's delightful always excited. He's such a beautiful person if we had concerns about the things you're saying we would let someone know.
68 The program manager from the ATE is reported as saying:
[The represented person] been coming here about five years … it used to be one-on-one as he was not able to cooperate in a group ... he'd invade your personal space … but now he can join in … he can cook he can wash he can be patient … he couldn't do that four years ago ... [The mother] has always been the support for the represented person and for us … Since April 2014 we've had a good run. There has been no change in his behaviours … he likes his routine … his presentation has not been out of the ordinary … he's clean ... always has good clothes … he can pick at his scars ... There's been nothing out of the ordinary about his skin … Everything generally revolves around his mum ... if she's late he'll become anxious.
69 The LAC from DSC is reported as saying:
I have no concerns at all regarding the allegation you've disclosed … [The represented person] appears well cared for by his mother ... if anything she should access respite a bit more.
70 It is argued that the Public Advocate's investigator's report provides summaries only of the comments reported to be made to the investigator and not signed witness statements, and so no weight should be placed on it. This approach is overly technical and does not deal with the substantial merits of the case as the Tribunal is bound to do.
71 The Tribunal is permitted to inform itself as it sees fit: s 32 of the SAT Act. As noted, the management of this matter to hearing followed the processes and procedures adopted by the Tribunal in dealing with applications commenced under the GA Act. This included referral of the application to the Public Advocate pursuant to s 97(1)(b)(iii) for investigation and report to the Tribunal.
72 The independent investigatory role played by the Public Advocate is established in the GA Act. Section 97 sets out the functions of the Public Advocate. Those functions include, at s 97(1):
(b) at hearings before the State Administrative Tribunal commenced under this Act, or where appropriate at hearings under Division 3 of Part 3
(i) to seek to advance the best interests of the represented person or person to whom the proceedings relate;
(ii) to present to the Tribunal, judge or Court any information in his possession that is relevant to the hearing; and
(iii) to investigate and report to the Tribunal, judge or Court on any matter or question referred by a court or by the Tribunal, judge or Court;
74 Allegations of the kind made in this matter are routinely referred to the Public Advocate for investigation and report. Through an investigation conducted by that office, information independent of the applicant and other interested parties, which might not otherwise come before the Tribunal, is gathered and presented. The benefit to the Tribunal of such an investigation and report is obvious.
75 In this case, the investigator summarised the reported views of the parents, carers and other service providers, a neighbour, family friends, the siblings of the represented person and his paternal aunt.
76 The views of the service providers who have direct involvement with the represented person and those of the LAC of DSC, about the presentation of the represented person are clearly relevant to the matters that fall for determination by the Tribunal, especially so as they are not embroiled in the family conflict which is so obvious in this case.
77 The submission for the applicant is that the only 'signed written lucid or cogent medical evidence' before the Tribunal is that of Dr AL's written report, which refers to his concern about the deterioration in the represented person's condition over the relevant time.
78 It is submitted that the only available inference to be drawn from Dr AL's 'observed deterioration in the represented person's condition in the period leading up to December 2014 was a result of inadequate hygiene and redirection when the represented person was frustrated and stressed in the mothers' care'.
79 In respect of the 'observed deterioration' by Dr AL, the comparison he makes is between the photographs he saw in January 2015 and his assessment of the represented person in 1998. Dr AL's statement that he did not remember the represented person having acne as a younger child is not persuasive (as to the deterioration in the relevant period) since the evidence of the applicant, who has had much more recent contact with the represented person, is that the represented person's acne condition was one of long standing over many years. It may well be the case that the represented person did not have acne when he was seen in 1998 or that Dr AL could not remember if he did. Dr AL says he does not remember. While the Tribunal accepts that Dr AL is qualified to give an expert opinion about the represented person's mental state (if he had assessed him) and more generally regarding the self-harming behaviour of disabled children, the Tribunal does not find his evidence persuasive in respect of the represented person's acne condition or the reasons for it.
80 The Tribunal accepts the submission of the Acting Public Advocate that Dr KS was in a better position to assess the represented person's skin as she had seen him in the period in question and Dr AL had not seen or assessed the represented person in some years. The opinion of a treating general practitioner can be preferred over a specialist where the specialist has not directly assessed the represented person. Edna May Collins by her next friend Glenys Lesley Larraine Poletti v May [2000] WASC 29 at [63].
81 As noted, Dr AL had not assessed the represented person himself. The Tribunal infers from his report that he was aware that the parents of the represented person had separated in that he refers in his report of 6 January 2015 to the applicant 'applying for sole guardianship and Enduring Power of Attorney over [the represented person]'. The Tribunal infers that Dr AL was alert to the conflict between the parents. Dr AL does not refer to and he apparently did not make any independent enquiry or seek input or collateral evidence from any other health professionals, such as Dr KS or service providers involved directly in the care of the represented person regarding the allegations made. Such enquiries might be expected, before a health professional provides a report to the Tribunal at the request of an applicant, in apparent conflict with a primary carer, on so serious a matter as an allegation of neglect of a person with intellectual disability.
82 Since the service providers and the LAC of DSC who were in contact with the represented person and were consistent in their views, the Tribunal considers it can and does place weight on the report of the Public Advocate's investigator. The conclusion reached by the Tribunal based on the reported views is that there were no reports of neglect by persons in regular contact with the represented person but rather the opposite; that the persons interviewed held the opinion that the care provided by the mother was appropriate and meeting the represented person's needs.
83 The assertion made by the applicant that there was improvement in the represented person's skin, following the intervention by the applicant, is not established by any medical evidence before the Tribunal.
84 For the reasons given the Tribunal does not accept that the mother has neglected the hygiene of the represented person.
Escalation of selfharming behaviour
85 The applicant says that the photographs show that the self-harming behaviour of the represented person had escalated since the separation. He attributes this to 'stress and anxiety of [the represented person] not being listened to or not being comforted at the time'. The increase in the severity of the condition is said to relate to 'decisions made in respect of [the represented person's] care' (T:15; 25.02.14).
86 The aunt says that the represented person has 'bitten and nipped into his hands on and off over the years' but 'towards the end of the year he had injuries up his arms' (T:73; 08.04.14).
87 The photographs submitted to the Tribunal show variously what appears to be bruising, swelling, puncture marks, scratches, dry and flaking skin, wounds with dark red or yellow areas said to be blood and pus and scabs on the hands and swelling and bruising on the lower arms of the represented person.
88 Dr AL, in his letter of 6 January 2015 refers to the photographs showing injuries from 'self-bite marks and infected hands from these bites'. The expert opinion of Dr AL is that in his experience with disabled children, selfmutilation is 'often a sign of frustration and distress'.
89 Dr AL states there are several photographs of the represented person's face and head which 'showed an expression of distress'.
90 In the bundle submitted there are six photographs in which the full or nearly full face of the represented person in which his facial expression can be seen.
91 These photographs have been marked by the Tribunal as 'A', 'B', 'C', 'D', 'E' and 'F' for the benefit of any future proceedings.
92 In the photographs the Tribunal cannot detect distress on the face of the represented person. In photographs 'B' and 'F' he may be straining away from the camera but it is not possible to say this with any certainty. In the photographs marked 'C', 'D' and 'E', the represented person does not appear distressed. In photograph 'A' marked as having been taken at 'lunch on 14 December 2014', the represented person is shown with the applicant, and looks happy and well presented.
93 In the letter from Dr AL dated 17 October 1998 to Dr M a general practitioner, Dr AL refers to the represented person's 'self-harming behaviours reported by the parents'. He notes that the represented person 'selfmutilates and head bangs if frustrated' and that the represented person is 'variably hyperactive [,] impulsive [and] needs constant supervision'. At the conclusion of the report Dr AL recommends medications for the represented person primarily directed to managing the reported behaviours, including Melleril (an antipsychotic) and dexamphetamine. Dr AL offers to review the represented person.
94 The applicant says that the represented person was not reviewed by Dr AL and has only seen him socially since. This is confirmed in the report of Dr AL. The mother says the medications recommended by Dr AL were used briefly but were sedating of the represented person. Instead, she reports the family sought assistance with behaviour management strategies through a clinical psychologist from DSC and other service providers.
95 The Tribunal finds that the represented person has an established history of self-harming behaviours, which include biting his hands and arms, and accepts the opinion of Dr AL that this behaviour can often be a sign of frustration or distress.
96 Both parents assert that the represented person is suffering stress although they give different explanations for the cause of the stress.
97 In all the circumstances, the Tribunal concludes that it is possible that the represented person is suffering stress. The fact of the separation and the extent of conflict between his parents may contribute to the stress the represented person experiences.
98 In respect of the distress in the expression of the represented person detected in the photographs by Dr AL the Tribunal defers to his expert opinion regarding the expression of distress but it is the case that at the time the photographs were taken, the represented person was in the care of his father.
99 It is not accepted that the photographs show an increase in the injuries over the period in question, that is from July to December 2014. It is simply not possible to say this from the photographs produced.
100 As noted, there are many photographs of the represented person's hands and lower arms and many show wounds or healing wounds. Some lesions appear more serious than others but there does not appear to the Tribunal to be a progression in the injuries in the photographs that are dated. As most of the photographs are undated it is not possible to be certain of the sequence in which they were taken.
101 If the Tribunal is wrong about this, or it accepted on the evidence of the applicant and the aunt that the represented person's biting of his hands and arms increased in this period there is no evidence that supports the finding that the applicant asks the Tribunal to make; that the increase in injuries can be attributed to 'decisions about his care', put plainly, neglect of the represented person's needs by the mother. An allegation as serious as this must be supported by cogent evidence, which is not provided in this case.
102 Although the applicant states he was very concerned about the escalation of self-harming by the represented person, such that he sought advice from Dr AL and brought an application to the Tribunal, from a review of the text messages provided by the applicant there is no reference to self-harming behaviour in the texts sent to the mother. Other than the text message of 14 December 2014 referred to above, the only other references to the represented person's health or physical condition in the text messages sent to the mother provided by the applicant are the following:
Sunday, October 12
He is a smelly
Not sure if it's his pants. OR JUST AN ALL OVER CLOTHING STENCH. I haven't been around for a while it just might be the way it is. just for old time maybe.
- Included in another lengthy text message dated Monday 15 December 2014 dealing primarily with property settlement matters, the following comment is made:
And in your [carer role] you haven't done much to [relieve] [the represented person's] [bowel] His [colon] is as hard as a rock but [I] suppose it hard to you if you don't care.
Medical treatment blocked by the mother
104 The applicant says that he became so concerned about the represented person's skin that he attempted to take him to the doctor on 23 December 2014 but that the mother blocked this.
105 As noted, the text from the applicant on 14 December 2014 is the first and only reference in the text messages to the skin condition of the represented person. In the text there is no enquiry made by the applicant about what medical treatment, if any, has been sought by the mother. In the text messages from the applicant to the mother dated Tuesday 16 December (two messages) and Wednesday 17 and Sunday 21 December 2014 (two messages), there are no references to proposed medical appointments or the represented person's health.
106 Since the applicant says that he had been advised by his solicitor to communicate with the mother only by text message, it is accepted that these are the only communications by the applicant to the mother about the represented person.
107 Although it is accepted that the mother prevented contact between the applicant and the represented person by not responding to his text messages, it is not accepted that the mother attempted to block the represented person receiving medical care and assessment proposed by the applicant. The text messages, which the applicant has provided, do not indicate that a medical appointment was proposed. There is no evidence that the mother knew of any appointment with Dr KS or any other doctor, so it cannot be argued that she knowingly blocked it.
108 The mother says that the represented person was being treated from February 2014 with a cream for his acne.
109 The Tribunal accepts the report of the Public Advocate's investigator that the general practitioner provided treatment for the represented person's acne.
Deterioration in continence management
110 The applicant says that the represented person is incontinent of faeces because '[the represented person's] muscle's not functioning'. He also says that the '[represented person's] continence management had deteriorated in the last two odd years … [because] there's no prompting being put in place and that now he's wearing incontinence pads fulltime' (T:12; 25.02.15).
111 The assertion is made that there has been deterioration in the represented person's continence but there is no specialist or any medical evidence or opinion about the nature of the represented person's incontinence, whether it has deteriorated or best practice in the management of it. The paid direct carers were not called to give any evidence about the represented person's continence management.
112 The represented person's contact with the ATE service was reported to be for 'about five years' which covers the two year period of the suggested deterioration in continence management. Although continence management is not mentioned in the summary, there is a reference to the represented person being 'clean'.
113 The Public Advocate's report of interviews with the service providers summarises the opinions of carers in regular contact with the represented person and the Tribunal accepts and relies on this report to find there were no reports to the Public Advocate's investigator of deterioration in the represented person's continence management or personal care by those presumably able to assess and report on this issue.
114 Although the represented person may have increased the use of incontinence pads in the last two years as the applicant contends, there is no evidence to support the finding that there has been any failure in the management of the represented person's incontinence by the mother.
Neglect of dental care
115 At the second hearing, the applicant raised the need for orthodontia for the represented person.
116 The applicant had not previously raised the issue of the represented person's dental care in the material put to the Tribunal or in the previous hearing.
117 The applicant says that he was prevented by his work commitments from attending personally to the represented person's need for dental care while he was living in the family home with the represented person. He says when he raised the concerns with the mother she met his concerns with 'aggression' (T:117; 08.04.15).
118 The applicant provides no evidence from a dentist or an orthodontist that the represented person's teeth need attention.
119 The represented person is 27 years of age and the applicant says that he had some surgery on his teeth when he was about six years of age. It is not unreasonable to consider that in the intervening years, even considering his work commitments, the applicant might have taken steps himself to address the problem he identifies.
120 Given the lack of any professional evidence to support this further allegation of neglect, it is not possible or appropriate to take this any further.
Contact
121 At the first hearing the applicant said that following the separation in April 2014 he had contact with the represented person 'irregularly' (T:26 and 27; 25.02.15). He said 'he could not guarantee [his] contact [with the represented person] because of his work commitments' (T:27; 25.02.15).
122 The applicant said he tried to have contact every week but that this was 'impractical' (T:27; 25.02.15) because of the applicant's financial position as each outing with the represented person would cost the applicant 'between $80 and $100'. There had, according to the applicant been a break in contact with the represented person in July 2014 because of the applicant's business commitments.
123 The applicant said he 'tried to make [contact] every fortnight for consistency', because the represented person 'likes routine in his life'. (T:27 and 29; 25.02.15).
124 On occasions, the applicant said that the contact with the represented person had to be cancelled at short notice by him by text message to the mother because of work commitments (T:27; 25.02.14).
125 The applicant says that the text messages produced are his record of his contact with the represented person.
126 The text messages illustrate both the conflict between the applicant and the mother and the difficulty in establishing a regular pattern of contact between the represented person and the applicant.
127 From 14 December 2014 the applicant says that the mother prevented contact and that when he went to collect the represented person on 23 December 2014 and sounded the car horn in the driveway there was no answer. He says that he was blocked from contact and the mother agrees that she barred contact from him on her mobile telephone, as the applicant's text messages were 'abusive'.
128 As the applications were part heard, at the end of the first hearing the Tribunal attempted to get an agreement between the parties about contact until the next hearing. A proposal by which the father would have fortnightly access on a Sunday, commencing the Sunday following the hearing, was canvassed and apparently agreed by the parties in the hearing. The father would telephone on the landline to the home or text his proposals to the mother as to where he was taking the represented person. This followed concern expressed by the mother about the activities in which the represented person would be involved which she says arose from the incident on 14 December 2014 when the represented person was not returned home at the agreed time and she says there was a period of some hours when she did not know where the represented person was. She says that on returning home, the represented person was distressed.
129 The text messages for this day show text messages from the mother seeking information about where the represented person was and from where he could be collected. The mother says that the represented person's sister had contacted the applicant on his mobile telephone and had then collected the represented person from a hotel; the sequence of text messages from 12.39 pm to 7.58 pm 14 December 2014 supports the mother's version of these events.
130 In an email communication from the Public Advocate's investigator to the Tribunal, which was not copied to the parties (despite orders made allowing inspection by the representatives of all material filed), the mother is reported to have become concerned about the deteriorating relationships with the applicant, as she reported that their other son's employment in the family business had been terminated following his attendance with her at the first hearing. She is reported to have been concerned about risks to the represented person in his contact with the applicant.
131 It is submitted that contact between the applicant and the represented person which should have occurred after the first hearing on 1 and 15 March 2015 pursuant to the agreement reached, did not occur and it was not until 22 March 2015 that the applicant saw the represented person.
132 The parties and the process were disadvantaged in the second hearing, as the transcript, which had been ordered after the first hearing, had not been obtained. However the Tribunal member had listened to the recording and agreed with the submission of counsel for the applicant that an agreement had been reached about contact between the applicant and the represented person. The Tribunal member said at the second hearing that an agreement had been reached and concluded that the mother had breached the agreement. The mother said she was uncertain about whether a final agreement had been reached at the conclusion of the hearing about contact between the represented person and the applicant.
133 Much is made about the breach of the agreement regarding contact in submissions by the applicant filed after the second hearing. It is argued that the conduct of the mother regarding contact and her answers in cross-examination demonstrate an absence of credibility or reliability and her entire testimony should be given little weight (paragraph 51 and 54). The Tribunal does not accept that this contention logically follows even if it could be said conclusively that an agreement was reached about contact and the mother breached the agreement. It is possible that the transcript of the hearing may have only become available to counsel after these submissions were prepared.
134 In respect of the contact agreement, the discussion about arrangements for contact starts from page 67 of the transcript of the hearing of 25 February 2015 and that discussion goes on for several pages. There were various suggestions as to how contact could be managed, the representatives reportedly had made efforts to come to an agreement between the parties prior to the hearing but this had not been successful. There was also the submission from counsel for the applicant that an agreement might make an order in the interim in favour of the Public Advocate superfluous. A proposal about contact on the following Sunday is discussed and arrangements made for the applicant to confirm the details of where the represented person would be taken. The final comment of the Tribunal member is that the representatives 'can sort that out' meaning the arrangements about how the communication between the parties was to be managed (T:75; 25.02.15). Given the discussion and this final comment, it cannot be conclusively determined that the mother capriciously and wilfully breached the contact agreement as is submitted. It is open on a close reading of the transcript that the mother simply did not understand that a final agreement had been reached.
135 In light of the applications before the Tribunal and other factors, it should have been obvious to the Tribunal that the prospect of a durable agreement about contact between the parties was remote. The factors include the seriousness of the allegations made by the applicant, the manifest ongoing conflict between the parties, the allegations made by the mother in the first hearing regarding the conduct of the applicant, including allegations of domestic violence together with the admission by the applicant in material filed by him of an assault on the mother in 2013 and, importantly, the inability of experienced counsel to settle arrangements for contact in their negotiations before the hearing. In hindsight, it was inappropriate of the Tribunal to attempt at this time to try to facilitate contact arrangements. As the Tribunal did embark on this course, any agreement reached should have been recorded in undertakings of the parties in the orders adjourning the hearing to provide clarity for all the parties. As it was, the Tribunal should have adopted the Public Advocate's investigator's recommendation that an order for contact in favour of the Public Advocate was advisable.
136 The evidence about the applicant's attempts to contact the mother to arrange contact after the first hearing is in conflict. The applicant says he made several calls, the mother says she did not receive them. It is clear that the applicant made contact with their other son KM, but the conflict between KM and the applicant was also apparent in the hearing.
137 The conflict about this fundamental question for the arrangement of contact reinforces the need for an independent guardian but the further submissions regarding the mother's conduct and her suitability as a decisionmaker for the represented person, are misconceived. The submissions made on behalf of the applicant focus on the conflict between the parents and do not directly engage with the material before the Tribunal or address the criteria for suitability for appointment as guardian and administrator in s 44(1), s 44(2), s 68(1) and s 68(3) of the GA Act, which relate to the ability of the proposed appointee to perform the functions, the compatibility of that person with the represented person, the wishes of the represented person and the ability of the proposed appointee to act in the best interests of the represented person.
138 Turning to the substantive issue, from the applicant's oral evidence and the text messages between the applicant and the mother, it is evident that contact between the applicant and the represented person has been problematic since separation, and the mother says she did prevent contact between them from 23 December 2014. It is accepted that contact between the represented person and the applicant did not resume until 22 March 2015 because the mother prevented it.
139 The mother agreed in the hearing that the represented person should have contact with his father but expresses concern about where the represented person is taken and whether he will be taken to a hotel that she says had been the case on 14 December 2014. This issue is addressed in paragraphs 32 to 37 of the applicant's submissions and reference is made to the contention of the mother that the applicant took the represented person 'out drinking in pubs' and it is submitted that there is no evidence before the Tribunal that this was ever a real risk, based on prior occurrences.
140 The material before the Tribunal establishes that the represented person was in the care of the applicant for several hours on 14 December 2014. The aunt said in her evidence that the family outing on 14 December 2014 was a yum cha breakfast and not to the [name suppressed] hotel (T:69; 08.04.15) as alleged by the mother. Two photographs provided by the applicant dated 14 December 2014 are notated [name supressed] (a café) in Perth 'breakfast with siblings'; another is notated 'lunch [name suppressed] hotel'.
141 From the sequence of text messages provided by the applicant and the date and notations on the photographs and evidence of the applicant in the hearing, it seems that on 14 December 2014, the represented person was 'scrubbed down', perhaps sometime after breakfast or the lunch which took place at one hotel, and before the applicant sent the text message that 'he was too drunk to drive' from another hotel from which the Tribunal accepts his sister later collected the represented person that night. From the applicant's text messages of that date, the Tribunal concludes that on 14 December 2014 the applicant at least had been drinking while the represented person was in his care.
142 That the applicant communicated that he was too drunk to drive while he had the responsibility of the care of the represented person and was expected to return him to his home is a matter of some concern. In light of these events it is accepted that the mother was acting in the best interests of the represented person, as she saw, by preventing contact with the applicant when she did.
143 Having considered all of the material, the Tribunal finds that there is no cogent evidence before it that supports a finding that the mother has neglected the represented person.
144 The seriousness of such allegations requires the allegations to be proved to the reasonable satisfaction of the Tribunal (Briginshaw v Briginshaw (1938) CLR 336 at [350]). The material put before the Tribunal by and on behalf of the applicant falls far short of that requirement. The attack on the credibility of the mother and on the report of the investigation by the Public Advocate's investigator by counsel for the applicant did not strengthen the case of the applicant.
145 The Tribunal finds that the allegations of neglect are not made out and that the care needs of the represented person are largely met by his mother as his primary carer through care in the family home and through the provision of a range of services and activities to support his access to the community. Despite this finding, the Tribunal finds that the represented person is in need of a guardian. His current need arises from the conflict between his parents about his treatment and care, where he should live, and their inability to regularise the contact he has with the applicant.
Administration
146 The applicant submits that he should be appointed as administrator of the represented person's estate and that the mother is 'unfit' to be appointed because of the allegations that she misappropriated, or intends to misappropriate, the represented person's funds.
147 The applicant agrees that the represented person has between $73,000 and $76,000 in his bank account. The applicant says he opened the account for the represented person together with the mother and had used his own mother's maiden name as the security password on the account some years before. The applicant says that since 2012 he has been able to access information from the account and is a nominee of the represented person for Centrelink.
148 The submissions of the applicant refer to an agreement by the parents that the pension income of the represented person accumulate in his bank account to provide for his future needs, which he says the mother breached prior to 2012.
149 The figure of $80,000, which the applicant says is owed to the represented person by the mother, is based on the applicant's calculation of an estimate $20,000 annual pension entitlement of the represented person 'multiplied by five years' (T:8; 08.04.15).
150 The applicant says funds of the represented person were not used for his benefit in this period but were used for 'lifestyle spending'; 'for coffees and restaurants and so on' (T:7; 08.04.15).
151 The mother says the represented person's account was opened in 1988 by the parents and that the applicant has always been able to access the account. She says this had been confirmed to the applicant when they had visited the bank together in 2012 around the time of the applicant's previous applications to the Tribunal.
152 The Public Advocate's investigator reports that the mother said that the represented person's funds had been used by her for household expenditure prior to 2012.
153 From a review of the bank statements provided by the applicant (which are not complete for the period in question), there are some payments at supermarkets and other services, but the majority of withdrawals are to cash. There are also regular transactions to what is assumed to be the supplier of continence aids.
154 The applicant says that since 2012, $56,000 has accumulated in the account from the represented person's Centrelink payments. It is agreed by the applicant that funds have continued to accumulate in the represented person's account since separation.
155 From what has been said by both the applicant and the mother during the hearings about the family arrangements prior to separation, it is accepted that the applicant was the primary breadwinner and the mother was the primary carer for the children including the represented person who remains dependent on her for his care. It is common ground that prior to separation the parents were supporting the represented person in all aspects of his life including payment of his leisure activities. The family lifestyle, it can be inferred from the statements made by both parents included family meals, family outings and family holidays including a holiday to Bali in 2010.
156 The mother states and the Tribunal accepts that the represented person's funds were not used solely for his needs prior to 2012 but towards the 'running of the household' of which he was part (as was the applicant) in the period in question.
157 There has not been any attempt in the material put by the applicant to identify any specific expenditure of the represented person's funds, other than his comments made in the hearing referred to above, which is said to be for the personal benefit of the mother to support the serious allegation of misappropriation of the represented person's funds.
158 It is submitted by the Public Advocate that some use of the funds of the represented person in lieu of a regular payment of board is not uncommon in such situations where a dependent adult child lives in the family home and has a regular income stream.
159 The mother agrees with the applicant that there was an agreement about the accumulation of the represented person's funds but she puts the time of the agreement earlier.
160 Given the joint household at that time and the apparent joint financial arrangements, including an account in the name of the represented person able to be operated by either parent (which the applicant must have known given his stated knowledge of the password), the contention that funds of the represented person were 'misappropriated' by the mother prior to 2012, and as a consequence an estimated $80,000 is owed by her to the represented person, is not accepted.
161 Turning to the other allegation, it was put to the mother in the second hearing that correspondence from her solicitors dated 25 July 2014 to the applicant's solicitor evidences her intention to transfer funds of the represented person to herself and to have the represented person's Centrelink pension paid to her own account.
162 Part of the letter was tendered on behalf of the applicant (Exhibit 2):
Our client will take such action so as to avoid risk in respect of her own credit rating and, for want of a better description, to keep a roof over the heads of our client and the children. Our client will also arrange for all benefits associated with our client and the children to be deposited to her own account.
- The complete letter, which sets out what is said to be some of the history of the conduct of the matter and to proposals for maintenance of the mother and the children was provided by the mother in the course of the second hearing. (Exhibit 3).
163 In response to the allegation made, the mother denies that she intended that the represented person's funds be transferred to her account, and argues that she has not transferred funds of the represented person to her own account and that the represented person's pension and mobility allowance continue to be paid to his own account. Although it is submitted otherwise (paragraph 91(c) of the applicant's submissions), she maintained her denial even when presented with Exhibit 2.
164 The mother says that, other than the purchase of continence pads, and a pair of boots where funds of the represented person were used, since separation she has supported the represented person and she pays for his recreation activities.
165 The applicant says that up until the separation, he was the primary breadwinner of the family and that he financially supported the represented person. Since separation he agrees that the mother has financially supported the represented person. He says that he has not paid any maintenance, as he is not financially able to do so.
166 The mother says that since separation she has been relying on part time employment and an inheritance to support the household that includes herself, the represented person and his sister who is a student.
167 The mother said that in the negotiations between their solicitors about maintenance, it was suggested by the solicitors for the applicant that she access the represented person's funds to support the household but that she had refused this. The mother said she was not sure about the use of the word 'benefits' in the letter but denied any intention to use the represented person's funds to support the household. She asserts that the paragraph in question refers to any maintenance that might be negotiated and paid to her on behalf of the children.
168 In relation to the intended meaning of the solicitor's letter, the Tribunal having considered the whole of the letter including the preceding paragraph which establishes the context of the letter, which includes the allegation that the applicant had unilaterally closed joint accounts from which household expenditures were direct debited, prefers the explanation of the mother. Despite the use of the word 'benefits' in the paragraph referred to in Exhibit 2, the Tribunal does not accept that it evidences an intention by the mother to transfer the represented person's Centrelink income to the mother's account. The mother's explanation is supported by the context of the paragraph in the whole of the letter and by what has happened. It is accepted that there has in fact been no transfer of the funds of the represented person from his account.
169 The Tribunal finds that the serious allegations made by the applicant of misappropriation or proposed misappropriation of funds of the represented person by the mother have not been made out.
170 Counsel for the mother submits that although there had been no defalcation by the mother ,the making of an administration order would enable review by the Public Trustee and provide reassurance to the applicant about the management of the represented person's finances.
171 The Public Advocate's investigator submits that there is no need for the appointment of an administrator as the needs of the represented person are being met through informal means.
172 Whatever the financial and other arrangements that the parents of the represented person came to during the marriage for themselves and for the represented person, these now need to be reconsidered in light of the changed circumstances.
173 Although it is accepted that there has been a significant accumulation of funds by the represented person from his pension income as he has largely been maintained by his parents, in the circumstances of the allegations made by the applicant and the distrust and conflict reflected in those allegations, there is a need for transparency and accountability for the use of the represented person's funds.
174 It is accepted that the appointment of an administrator will provide certainty about the management and expenditure of the represented person's funds into the future. The requirement that administrators file accounts annually with the Public Trustee provides some oversight of the management of the financial affairs of persons subject to an administration order. As noted by the Public Advocate's investigator this is the only way that this proposed oversight can be achieved.
What functions should be included in the guardianship order?
175 Counsel for the mother said that an order appointing the Public Advocate to manage the contact arrangements is supported. It is further submitted that the material before the Tribunal supports the conclusion that the mother meets the represented person's other needs and there may not be a need for other guardianship functions. However, in light of two applications being made by the applicant to the Tribunal in 2012 and again in 2015, orders might provide certainty for the parties. In the applicant's written submissions there is apparent support for the continuation of the order appointing the Public Advocate to determine contact (paragraph 79). The applicant submits (at paragraph 82) that the improvement in the skin condition of the represented person makes the need for plenary authority in a guardian (or even for a guardian with authority to determine where the represented person should live) less dire. It is submitted that the mother is inappropriate for appointment because of her conduct in the proceedings, and 'her demonstrated lack of reliability and focus on [the represented person's] interests'. It is submitted that the applicant is willing to be appointed as guardian.
176 The Public Advocate's investigator submits that the mother is suitable for appointment as guardian for all functions other than contact and it is open to the Tribunal to appoint the applicant as limited guardian with the power to 'obtain information, reports or copies of any documents relating to the treatment or health care of the represented person as a way of keeping the applicant abreast of medical developments about the represented person and alleviating his concern about the represented person's welfare'.
177 Given the conflict between the parents and the recent history there is a need for an independent guardian to determine the contact the represented person should have with others and the nature of that contact in his best interests. Due to their inability to resolve this issue neither parent is suitable for appointment with this function.
178 In respect of health care decision-making, it is accepted that treatment decisions have been made for the represented person for his lifetime. It is apparent that informal decision-making on his behalf has been accepted by health care providers since the represented person has been an adult. The Tribunal considers that it is likely that the mother played the main role in this regard since she was the primary carer and the applicant says his work commitments prevented his direct involvement. Additionally, the mother's knowledge of the represented person's health issues appears more complete than the applicant's knowledge. For example, when asked about the history of the represented person's incontinence and medical treatment for it, the applicant could not remember if specialist assessment had been sought but the mother was able to give this detail (T:111; 08.04.15).
179 The less restrictive alternative of informal decision-making arrangements for treatment might continue but for the conflict between the parents as they both could equally be the person in the hierarchy as the nearest relative identified in s 110ZD(b) of the GA Act.
180 The Tribunal concludes that it is not feasible to maintain a situation of informal decision-making where there are two parents who might equally be regarded as having informal decision-making authority where those parents are in ongoing conflict and disagree about important personal matters, including medical treatment for the represented person.
181 As the material before the Tribunal establishes, the parents of the represented person do not communicate effectively about health issues of the represented person, and the continued operation of informal arrangements is impractical and potentially puts the represented person at risk of inconsistent or inappropriate treatment. The incident which the applicant relates of his intervention to provide care, as he saw it, for the represented person's 'distressed skin' by scrubbing the represented person with an exfoliating glove without, according to the applicant, seeking any advice from the represented person's treating doctor, or any health professional, as to whether this was appropriate treatment illustrates this risk. For these reasons the represented person is in need of a guardian for treatment decisions.
182 The applicant initially proposed that an order be made that allowed him to make decisions about where the represented person should live. The Tribunal was not told that the applicant was at that time living in a shipping container at his workplace.
183 At the second hearing the applicant proposed that the represented person move from the family home to live with the applicant and his sister at her home. It is submitted that a move is inevitable because of the sale of the family home as part of the property settlement between the parents. No details are provided of the proposal or a plan referred to for the management of the move of the represented person from his known environment. Given this proposal there is a need for a decisionmaker about where and with whom the represented person should live.
184 Although the Tribunal accepts that the represented person has access to appropriate services as reported by the Public Advocate's investigator the function to determine the services to which the represented person should have access is included in the guardianship order to ensure that there is no ambiguity about this authority into the future.
Suitability for appointment
185 The applicant proposes himself as guardian but the Tribunal does not find him suitable for appointment. The applicant asserts that he had serious concerns about deterioration, as he saw it, in the represented person's care from about June 2014; however other than photographing the represented person, he did not take any steps until December 2014 to contact the represented person's doctor. The Tribunal does not accept that the text communications by the applicant to the mother represent a genuine attempt to convey concerns to the mother about the represented person's health and welfare. The issue which the applicant says is his 'main concern' that is, the purported escalation in selfharming behaviour is not communicated at all. The text messages are, in the Tribunal's assessment, offensive and they reflect the animosity of the applicant to the mother and a further expression of the conflict between the parents rather than a genuine attempt to convey concern about the represented person's health and welfare.
186 Having considered all the material before it, the Tribunal concludes that the applicant did not have a genuine belief that the represented person's mother was neglecting his care.
187 If the Tribunal is wrong about this and the applicant did have a genuine concern about the represented person's welfare, then he was ineffective in communicating and addressing those concerns with the primary carer of the represented person.
188 The applicant's contact with the represented person has been, on his own evidence irregular since the separation. The represented person's aunt (although, it is accepted, expresses concern for the represented person), has had relatively limited contact with the represented person and he has never stayed overnight at her home. In the view of the Tribunal, the accommodation proposal was not well developed, and did not refer to any advice sought from or consultation with any of the established direct service providers or DSC about the proposed change in the represented person's living arrangements. Nor did it appear that there had been any consultation with the represented person, the mother or the represented person's sister who lives with him in the family home and also reportedly contributes to his care.
189 Any future change in the represented person's care or accommodation will likely require considerable planning and possibly input from health professionals given the represented person's disability and the potential impact of such a significant change on his emotional wellbeing and potentially on his behaviour. This is so particularly in light of Dr AL's reference to the risk of increased self-harming at times of stress. That the applicant appears not to appreciate these issues in the proposal made means that it would not be appropriate for him to make decisions if, as the applicant predicts, the family home in which the represented person has lived all his life is sold.
190 The question of the property settlement is a matter for the parents and ultimately for the Family Court. It forms the background to these current proceedings but the suggested outcome of the property settlement dispute cannot determine these applications, which must be determined according to the provisions of the GA Act.
191 The lack of regularity in the contact with the represented person does not of itself make the applicant unsuitable for appointment since some of the lack of contact between 23 December 2014 and 22 March 2015 was as a result of the restriction on contact by the mother.
192 Although it is accepted that the applicant would not seek to change the services to which the represented person has access, his apparent unfamiliarity with the represented person's day-to-day routine and his reported lack of engagement with the service providers, including those providing services for over five years to the represented person means that the applicant is not best placed to make appropriate decisions about the services to which the represented person should have access. Such services are central to the represented person's ability to live in the community and participate in the life of the community.
193 The applicant's appointment is also not compatible, as required under the GA Act with the appointment of the mother as the administrator of the estate of the represented person which, the Tribunal finds, is the appropriate least restrictive order that can be made.
194 The Tribunal relied on the LAC report and the Public Advocate's investigator's report to find that the mother is the represented person's primary carer, and that she is identified by service providers as having played the main role in addressing the represented person's needs including accessing services and facilitating community access such as alternatives to employment and recreational activities.
195 The Tribunal is satisfied that the conflict between the parents does not make the mother unsuitable for appointment as his guardian as the source of the real conflict between them, the contact with the applicant, will be decided by the Public Advocate's delegated guardian. In respect of the appointment of the mother as guardian for the areas of treatment decision-making, accommodation and services the Tribunal accepts the submission of the Public Advocate's investigator that the mother is suitable for appointment; she is compatible, on all accounts, with the represented person, and to the extent he can express his wishes, the Tribunal finds it is likely that he would want his mother to continue to play the role she has played in his life. The Tribunal accepts the submission that her appointment recognises the existing arrangements and the close involvement the mother has had in the represented person's day-to-day care and her developed relationships with his service providers who are central to that care. Her appointment as guardian in these circumstances is the least restrictive order possible in the circumstances and is consistent with his best interests.
196 To address the applicant's need for information about the represented person's health care, the Tribunal ordered the mother to communicate with him any medical appointments attended by the represented person and to copy the Public Advocate's delegated guardian into those communications. This is preferred to the appointment of the applicant as guardian to obtain information from health care providers which might lead to ambiguity.
197 Having determined that an administration order should be made, the Tribunal prefers the mother as administrator to the applicant because she is the direct carer and is already managing the represented person's finances and therefore her appointment is a practical and the least restrictive order to provide for the ongoing management of his estate. Formalising her management of the represented person's finances provides for examination of annual accounts filed by her with the Public Trustee. It is accepted that this oversight will provide reasonable reassurance for the applicant about the management of the represented person's estate.
Length of the orders
198 Although the Tribunal finds that the represented person will be reliant on others to make decisions for him for his lifetime, once the Family Court proceedings are finalised the conflict between the parents might reduce, at which time the orders should be reviewed to determine if they need amendment.
Orders
Guardianship
199 The Tribunal declares that the represented person:
(a) is incapable of looking after his own health and safety;
(b) is unable to make reasonable judgments in respect of matters relating to his person;
(c) is in need of oversight, care or control in the interests of his own health and safety; and
(d) is in need of a guardian,
200 and the Tribunal orders that:
1. The order is revoked and a guardianship order in the following terms is substituted for it:
The Public Advocate of Level 2, International House, 26 St Georges Terrace, Perth, Western Australia be appointed limited guardian of the represented person with the following function:
(a) To determine what contact, if any, the representedperson should have with others and the extent of that contact.
2. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3. TM of [address suppressed] is appointed limited guardian of the represented person with the following functions:
(a) To decide where the represented person is to live, whether permanently or temporarily;
(b) To decide with whom the represented person is to live;
(c) Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA), to make treatment decisions for the represented person; and
(d) To determine the services to which the represented person should have access.
4. The appointment of TM as guardian with the function to make treatment decisions is conditional on her communication by email to the father of the represented person, within 24 hours of the appointment, to email address [email suppressed] and to copy those communications to the Public Advocate or her delegated guardian on an email address to be provided by the Public Advocate or her delegated guardian of:
(i) any and all medical appointments for the represented person;
(ii) any prescribed treatment including any regime of care for the management of any health condition of the represented person.
5. This order is to be reviewed by 1 May 2017.
Administration
201 The Tribunal declares that the represented person:
(a) is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; and
(b) is in need of an administrator of his estate,
202 and the Tribunal orders that:
1. TM of [address suppressed] is appointed plenary administrator of the estate of the represented person with all the powers and duties conferred by the Act.
2. This order is to be reviewed by 1 May 2017.
I certify that this and the preceding [202] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER
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