Avon v Administrative Appeals Court - [1997] SASC 6142

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

MATHESON, OLSSON AND WILLIAMS JJ

Mental health - order of Guardianship Board granting access to father of twenty-six year old girl born with Downs Syndrome - mother appointed full guardian - separation of parents - breaches of protection order in favour of mother by father - successful appeal by mother to Administrative Appeals Court - nature of appeals to that court and to Supreme Court considered - appeal allowed and access order restored. Trittenheim v H & H Gill Nominees
(1994) 63 SASR 434; The Queen v The Industrial Court of South Australia; ex parte District Council of Karoonda East Murray (1980) 24 SASR 117; Colpitts v Australian Telecommunications Commission and Others (1986) 9 FCR 52; Santos Limited v Saunders (1988) 49 SASR 556; Smith v St John Ambulance Australia - South Australia Inc and Others (1991) 162 LSJS 404 and on appeal (1992) 166 LSJS 231; Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580; Tomley Investment Company Propriety Limited v Superintendent of Licensed Premises
(1979) 21 SASR 176; Santin and Others v The Corporation of the City of Woodville (1971) 1 SASR 336; Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467, considered.

ADELAIDE, 10 April 1997 (hearing), 8 May 1997 (decision)

#DATE 8:5:1997

Appellant David Paul Avon:

Counsel: Mr P C Charman

Solicitors: P C Chapman

Respondent Administrative Appeals Court:

No Attendance

Other Party Anne Marie Avon:

Counsel: Mr D M Haines

Solicitors: James H Swanson

Order: appeal allowed.

MATHESON J

1. On 5 September 1996 the Guardianship Board presided over by Mr Tony Lawson LLB made the following order:

"UPON A REVIEW OF A Guardianship Order and Custody Order dated 17 January 1995 and UPON A REVIEW of Determination of the Appointment of Delegates dated 19 December 1989 in respect of JACQUELINE ANNE AVON c/- 29 Yanagin Road, GREENHILL 5140 (hereinafter called the 'protected person') UPON THE BOARD being satisfied that the protected person: - has a mental incapacity within the meaning of the Act; and - does not have an Enduring Guardian; and

THAT an Order should be made in respect of the protected person THE BOARD ORDERS:

THAT ANNE M AVON of 29 Yanagin Road, GREENHILL 5140 be appointed full guardian of the protected person.

THAT the Guardian be directed to facilitate and allow the Protected Person to maintain contact with the Protected Person's father, David Avon, on the following terms and conditions:

a) access by the Protected Person to her father David Avon is to occur for a two hour period weekly in either the home of the Protected Person's paternal grandparents or at the home of the Protected Person's aunt and uncle, Mr and Mrs Mastrantoni at a time and day of the week to be agreed from time to time by the Guardian and David Avon. In the event of there being no agreement as to the time and day of the week for access to occur the Board directs that such access shall be on a Wednesday between the hours of 4:00pm and 6:30pm.

b) that Mr Malcolm Robinson, Social Worker, is to conduct a pre-access and post-access assessment of the Protected Person's response to the renewal of contact with her father, such assessment to be paid for by David Avon. In the event of the assessment recommending that access arrangements be altered and/or cease this matter be returned to the Board for further consideration;

c) that travel arrangements which may be necessary for the Protected Person to see her father be such that the Protected Person is to be accompanied at all times by a person who is familiar with the Protected Person and all such travel be provided by and paid for by David Avon; and

d) that the Guardian and David Avon establish a system of communication concerning access arrangements such that in the event of difficulties being experienced by the Protected Person concerning access to her father or for unforeseen difficulties occurring which would make a particular access period impossible or inappropriate the parents of the Protected Person are able to adequately communicate with each other in order to ensure the welfare and safety of the Protected Person. Such a communication system will need to ensure that David Avon does not break any court order restraining him from directly or indirectly contacting the Guardian and also ensure that the system of communication is not used to harass or distress the Guardian.

THAT the Board directs the Guardian to provide an annual report to the Board.

THAT the Guardianship Order be reviewed by the Board on or before the 5 September 1999 provided always that the protected person, the applicant and any other person entitled thereto may be at liberty to apply to the Board for a review of its orders at any time prior to that date.

THAT the Guardianship Order, Custody Order and Determination for Appointment of Delegates made under the Mental Health Act 1977 be and are hereby revoked."

2. It is convenient to mention here that the court was informed from the bar table that Mr Tony Lawson had been President of the Mental Health Review Tribunal in Victoria and was appointed President of the Guardianship Board in this State when the Act came into operation.

3. Jacqueline Anne Avon appealed to the Administrative Appeals Court, which by dint of Schedule 3 to the Land Agents Act No 90 of 1994 is the Administrative and Disciplinary Division of the District Court. It was presided over by District Court Judge Hume sitting with members Dahl and Hassam, (one of whom is a psychiatrist and the other a social worker, but I am not sure which), allowed the appeal to the extent that the access provisions contained in the order of the Board were quashed. David Avon now appeals to this Court, leave having been granted by Debelle J.

4. It is convenient here to set out s5 of the Guardianship and Administration Act 1993 ("the Act"):

"5. Where a guardian appointed under this Act, an administrator, the Public Advocate, the Board or any court or other person, body or authority makes any decision or order in relation to a person or a person's estate pursuant to his Act or pursuant to powers conferred by or under this Act-

(a) consideration (and this will be the paramount consideration) must be given to what would, in the opinion of the decision maker, be the wishes of the person in the matter if he or she were not mentally incapacitated, but only so far as there is reasonably ascertainable evidence on which to base such an opinion; and

(b) the present wishes of the person should, unless it is not possible or reasonably practicable to do so, be sought in respect of the matter and consideration must be given to those wishes; and

(c) consideration must, in the case of the making or affirming of a guardianship or administration order, be given to the adequacy of existing informal arrangements for the care of the person or the management of his or her financial affairs and to the desirability of not disturbing those arrangements; and

(d) the decision or order made must be the one that is the least restrictive of the person's rights and personal autonomy as is consistent with his or her proper care and protection."

5. The Guardianship Board heard evidence, including evidence given by the father and mother of the protected person, the father, paternal grandmother and paternal aunt of Jacqueline Anne Avon, the defacto spouse of David Avon, and Dr Chris Branson, a psychiatrist.

6. In its reasons for judgment, the Board comprehensively and carefully summarised the background, and I gratefully quote the President's summary in full. He said:

"During the course of proceedings the Board met with the Protected Person Miss Jacqueline Anne Avon (called the 'Protected Person'). She was unable to communicate in any meaningful way with the Board. Miss Jacqueline Anne Avon is a 25 year old woman who was born with Downs Syndrome and as a result has a moderate level of intellectual disability such that she is unable to understand or effectively respond to any oral communication, except of a most basic kind. In relation to the current proceedings it was accepted by all parties (save for the Protected Person herself) that Miss Jacqueline Anne Avon had a mental incapacity within the meaning of Section 3 of the Guardianshipand Administration Act 1993 ('the Act') and that she was and had been at all material times unable to express any views about the issues before the Board. In particular the parties accepted that for the purposes of Section 5(a) and (b) of the Act concerning the views of the protected person Miss Jacqueline Anne Avon was unable to assist the Board.

The Protected Person is the elder of two children of Anne and David Avon. Her younger brother, Michael Avon is aged over 21 years but did not participate in the review hearing. The Protected Person lives with and is cared for by her mother Mrs Anne Avon.

The Protected Person's parents lived together with their two children until the Protected Person was 22 years of age. In April 1992 the Protected Person's parents separated following a serious incidence of violence by David Avon against his wife. Subsequent to this incident Mrs Anne Avon has been the sole primary carer of the Protected Person.

The Board's involvement with the Protected Person commenced in September 1987 when Mrs Anne Avon applied to the previous Board for an order under the Mental Health Act 1977 (since repealed) to delegate to Mrs Anne Avon and certain other persons the authority to consent to medical and dental treatment on behalf of the Protected Person. On 29 October 1987 the previous Board made a Delegation order to this effect. Subsequent to the assault on Mrs Anne Avon in April 1992 Mr David Avon applied to the then Guardianship Board in an application received at the Board in January 1993 for Guardianship and Administration Orders. The Board subsequently in August 1994 made a Guardianship and Custody Order but later dismissed the application for an Administration Order. The Guardianship and Custody Order directed that the Protected Person be placed in the care of her mother, Mrs Anne Avon. The previous Board last reviewed the Guardianship and Custody order on 17 January 1995. It is these orders which are the subject of review by the current Board under the provisions of the Act.

Initially Mr David Avon sought to obtain a Guardianship Order which would have the effect of placing his daughter, the Protected Person, in the custody of his former spouse Mrs Anne Avon such that Mrs Anne Avon had day to day decision-making about the Protected Person's affairs and lifestyle but reserved what Mr Avon called major decisions involving health care etc to be shared by both parents. Subsequently Mr Avon abandoned his position and requested the Board to make a Guardianship Order which would enable Mr David Avon, his parents and family to have regular contact with the Protected Person.

Mrs Anne Avon, Mr David Avon and the Public Advocate, as parties to the proceedings agreed that the Protected Person required a Guardianship Order to be made under the provisions of the Act and that Mrs Anne Avon should be appointed as guardian for her daughter. Throughout the proceedings Mrs Anne Avon opposed any form of access to the Protected Person by her former husband and his family. The Public Advocate did not initially indicate a view about access. However towards the end of proceedings the Public Advocate provided limited support for Mr David Avon's application for access to the Protected Person.

At the time of this hearing the Board was advised that the Protected Person attended a form of sheltered employment at Craigburn Farm at Blackwood which is run by Minda Incorporated, a specialist agency providing services to people with intellectual disabilities. In addition Minda Incorporated has provided the Protected Person with out-of-home respite care since she was aged five years. Mrs Anne Avon, and previously when the Protected Person lived with both parents, Mr and Mrs Avon both regularly used respite care to provide some respite from the constancy of caring for an almost totally dependent person. No party proposed to alter any of these arrangements.

Subsequent to the violent separation of the parties in April 1992 Mr David Avon was involved in a further violent incident with his wife at Football Park and intimidatory and threatening behaviour towards his then wife over an extended period of time which can only described as stalking. In August 1993 Mrs Anne Avon was granted a Summary Protection Order against Mr David Avon at the Adelaide Magistrate's Court. The order (subsequently varied on 30 August 1993) prohibited Mr David Avon:

'1. From behaving in a provocative manner towards Anne Marie Avon.

2. From approaching within 50 metres of the said Anne Marie Avon, communicating or making contact with Anne Marie Avon directly or indirectly or attending her place of residence at 29 Yanagin Road, Greenhill and from entering upon that section of Greenhill Road, between Hallett Road, Stonyfell and Summit Road, Summertown and from entering upon part of Yanagin Road or any land abutting Yanagin Road, whether in any vehicle or on foot.

3. From communicating with her, directly or indirectly or attending at her place of residence 29 Yanagin Road, Greenhill.

4. From entering upon that Section of Summit Road between Waverley Ridge Road and Stirling and Greenhill Road, Summertown, whether in any vehicle or by foot.

5. From attending or approaching within 500 metres of any other residential premises in which Anne Marie Avon may from time to time reside.

6. From attending at or approaching within 200 metres of the premises known as 42 Carlisle Road, Westbourne Park or any other premises where Anne Marie Avon may from time to time be employed.'

In October 1993 Mr Avon was convicted of a breach of a recognisance and two counts of failing to comply with the Summary Protection Order. Mr Avon received a custodial sentence of two years and eight months. At the commencement of the hearing Mr Avon had been released from prison and was on parole. Parole expired on 1 June 1996. The initial conditions of Mr Avon's parole precluded him from contacting his daughter. However the terms of the parole were altered in March 1996 thus enabling Mr Avon to try to resume contact with his daughter.

Mrs Anne Avon strongly opposed her former husband's application for access to Jacqueline Anne Avon. Mrs Avon in direct evidence given to the Board and in indirect evidence given through her discussions with the Public Advocate and reported to the Board in the Office of the Public Advocate's report dated 21 March 1996, stated that she was fearful that Mr David Avon would harm his daughter and that he would attempt to use access to her as a vehicle to harass and intimidate Mrs Anne Avon. Mrs Avon advised the Board that she was the sole primary carer of the Protected Person and that her daughter's quality of life was directly related to the capacity of Mrs Anne Avon to remain healthy and capable of providing care for her daughter. Mrs Avon told the Board that she feared that if access was granted she, Mrs Avon, would be placed under very significant emotional strain and that this was detrimental for her daughter's immediate and future welfare.

Mrs Avon told the Board that she believed that her former husband's violent and harassing behaviour towards her was only being held in check by the various court and tribunal orders which restrained Mr Avon contacting Mrs Avon and the two children.

Mrs Avon advised the Board that her former husband's involvement with his daughter had historically been very limited. She stated to the Board that she had always been the primary carer and Mr David Avon had not been a significant physical and/or emotional carer. In her opinion Mr David Avon was motivated to apply for access as an indirect means of getting at his former wife because he was legally barred from direct contact with her.

Mrs Avon stated that her son Michael had clearly indicated that he did not wish to have contact with his father because of Mr Avon's past violent and harassing acts and that in her opinion if her daughter was competent she would make a similar decision.

Mr David Avon told the Board that he had not seen his children for approximately four years. He said that he and his family (his parents and siblings) missed seeing both children.

He advised the Board that he accepted that his son Michael did not now wish to see his father but that he hoped that Michael would change his mind in the future. In relation to his daughter Jacqueline he advised the Board that prior to his separation from his former wife he had been involved with the care and support of his daughter throughout her life up until the separation. He denied his former wife's allegations that he had not been a significant carer for his daughter or that his application was motivated by a desire to indirectly harm and/or harass Mrs Anne Avon.

Mr Avon stated that he now accepted that his former wife did not want him and that he was obliged to leave her alone.

Upon being requested to do so by the Board and in discussion with the Public Advocate Mr Avon proposed that contact with his daughter could occur at Craigburn Farm under the supervision of the staff at the farm. Subsequently Mr Avon's legal representative was advised by Minda Incorporated that they would not be prepared to allow the property or staff to be used for access visits. Mr Avon then proposed that access could occur at the Vietnam Veterans Counselling Service in the City of Adelaide.

Mr Avon supported his case by arranging for Dr Chris Branson, a Consultant Psychiatrist to speak with the Board. Dr Branson first met with Mr David Avon whilst Mr Avon was in the Adelaide Remand Centre in 1992. Dr Branson was at this time a visiting Psychiatrist at the Remand Centre. After a break during part of 1994 Dr Branson resumed contact with Mr Avon and has been in regular contact with him since then in his capacity as visiting Psychiatrist at the Noarlunga branch of the Department of Correctional Services. Dr Branson stated that Mr Avon has a post-traumatic stress disorder arising from his service in Vietnam and also has 'a very obsessional style of personality and one who is particularly sensitive to issues of loss and abandonment'. Dr Branson stated that he had observed Mr Avon learn to better control his anger, moderate his demands, accept the end of his marriage and establish a new relationship with Ms Kerry Mayfield. In Dr Branson's opinion Mr Avon was and is not a threat to his daughter's well-being and that his desire to try to resume contact with his daughter was both reasonable and understandable. In answer to questions put to him by Mr James Swanson on behalf of Mrs Avon Dr Branson stated that he did not believe that Mr Avon had or did currently pose a threat to Miss Jacqueline Anne Avon and that his intention in pursuing contact with his daughter could and should be understood as an attempt by a father to resume contact with his child. Dr Branson stated that in August 1995, just prior to his release from prison on parole, Mr Avon had made a number of statements which were interpreted as threats against Mrs Avon and son Michael Avon. In Dr Branson's opinion there was no threat against Jacqueline Anne Avon. Dr Branson stated that he had observed Mr Avon work through his anger at the time. He did not believe that this episode indicated that Mr Avon continued to pose a serious threat against his wife or children.

Mrs Avon told the Board that she opposed access. She was concerned about the health and safety of her daughter, that her former husband was a threat to her daughter's health and safety and that she was fearful about her own health and safety. She stated that her husband had been a relatively remote father to Jacqueline, that she had endured a significant majority of the tasks of caring for Jacqueline and that she believed that her husband had been motivated to pursue access because he wished to continue to harass and interfere with his former wife. In her view Mr Avon was precluded from dealing with her directly and was using contact with Jacqueline as an indirect means of getting to his former wife. Through her legal representative Mrs Avon advanced the argument that as she was the sole primary carer of Jacqueline and, because in Mrs Avon's opinion she was genuinely and reasonably fearful of Mr Avon because of his past actions, Miss Jacqueline Avon's interests would not be served by allowing contact between father and daughter because this would place further stress upon Mrs Avon and either diminish her capacity to care for her daughter or endanger her capacity to care for Jacqueline in the future.

The Board also heard from Mr Malcolm Robinson a Social Worker and trained Family Therapist. Mr Robinson is the author of a report produced for the Guardianship Board in 1994. He has interviewed Mr David Avon, Mrs Anne Avon and has observed Miss Jacqueline Anne Avon. Mr Robinson stated that if access between Jacqueline and her father was to resume it should be seen as part of a long term process. He believed that starting and stopping access would not be helpful to Jacqueline. Mr Robinson also asked that if access is to be granted it should be a carefully arranged process because of Miss Jacqueline Avon's limited capacity to deal with change in her life. Mr Robinson stated that if access were to resume there should be a careful process of observation of all parties involved to see how Jacqueline responded. Mr Robinson advised the Board that Miss Jacqueline Avon's primary relationship was with her mother Anne and in his view this relationship is critically important to Jacqueline Avon. In Mr Robinson's view 'we must be most cautious or careful about disrupting that arrangement'. In his view Mrs Anne Avon's response to any access arrangement is an issue of essential importance from the perspective of Miss Jacqueline Avon."

7. Later in its reasons the Board said, inter alia:

"In the Board's view the issue of prediction of behaviour is particularly fraught. Numerous studies have shown that psychiatrists and psychologists cannot reliably predict an individual patient's future conduct. On this basis whilst the Board was impressed with the candour and depth of Dr Branson's evidence there must remain considerable concern about the possibility in the future for Mr Avon to repeat his earlier violent and threatening behaviour towards his wife. In the view of the Board this is an important issue to take into account. However, the Board's view is that although there was an attempt to paint Mr Avon as a direct threat to his daughter the Board is of the view that no convincing evidence on this matter was disclosed. In the view of the Board Mr Avon does not pose a threat of violence towards his daughter.

The Board takes the view that all other matters being equal, it is in the interests of Jacqueline Anne Avon to maintain a positive relationship with all of her immediate nuclear family and, if possible, with her extended family. The Board notes that this is an implicit factor referred to in Section 50(1)(b) of the Guardianship and Administration Act 1993. Although this sub-section specifically refers to the choice of a Guardian, in the Board's view, it is supportive of the above presumption. In Jacqueline Avon's case her reality is that because of her dependency and vulnerability it is important that she have access to as many supports as possible. Primary supports traditionally come from family. In this case Miss Avon's current supports come exclusively from her mother and her mother's side of the family. However in the event that her mother was unavailable for any reason and members of the extended family on the mother's side were unavailable it is clearly in the interests of the Protected Person that she have access to and support from her father and her father's side of the family. Support in this case may include personal care, either long-term or respite and the provision of financial assistance, including the issue of inheritance. In the view of the Board unless it can be established otherwise, it is in Jacqueline Anne Avon's interests to maintain a positive relationship with both her immediate and extended family.

In this particular case Mrs Avon sought to establish that Jacqueline would be harmed if contact with her father was renewed. Mrs Avon sought to establish that Jacqueline would be in danger of physical harm if contact with Mr Avon was renewed. In the view of the Board Mr Avon's past behaviour does not support this contention. Secondly Mrs Avon sought to establish that Jacqueline was particularly sensitive to change and that her world could be seriously disrupted if contact with Mr Avon was resumed. In part some of the evidence to support this contention was provided by Mr Malcolm Robinson, a senior and experienced Social Worker and Family Therapist who had been used by the Board to prepare a report on these same issues in 1994. In the view of the Board this submission is inconsistent with the reality of Jacqueline's circumstances. Daily Jacqueline experiences changes. New staff at Craigburn Farm, new transport drivers, changes to her accommodation when she goes into regular respite and changes in the staff at the respite house are all experiences which Jacqueline has to undergo. There was no evidence presented which established that Jacqueline was so sensitive as to be incapable of dealing with changes in her world and her circumstances. Although the Board accepts that that the re-establishment of contact with her father, after such a traumatic and lengthy separation, would be difficult for Jacqueline there was no cogent evidence presented that Jacqueline could not cope with such a change. In the view of the Board, provided there is adequate monitoring of her response to renewed contact with her father and a capacity to stop access if Jacqueline displays signs of distress, there would be sufficient safeguards to protect Jacqueline from an adverse reaction to the re-establishment of contact with her father.

Mrs Avon's third objection to contact between Jacqueline and her father is in the view of the Board a much more substantive matter. Jacqueline, now and into the foreseeable future, is under and dependent upon the care of her mother. It can be correctly said that Jacqueline's quality of life is underwritten by the availability of Mrs Avon to care for her daughter. If anything happened to Mrs Avon then Jacqueline's circumstances would adversely change.

Mrs Avon has stated to the Board, and the Board accepts the genuineness of her feelings and beliefs, that in her view Mr Avon's request for contact with his daughter is motivated by a desire to get at Mrs Avon, that Jacqueline in danger from her father and that the impact of Mr Avon's application, the hearing and any order which would allow access would be such as to place unreasonable and intolerable stress on Mrs Avon, thus endangering her physical and mental health and as a consequence compromising Mrs Avon's capacity to care for her highly dependent daughter. If this were to occur and there was clear and convincing evidence to support such views the Board should and could not grant access. From the perspective of Miss Jacqueline Avon her interests are not served if her primary carer's physical and/or mental health are compromised so as to prevent the carer from adequately caring for and supporting Miss Avon.

Whatever the benefits Miss Avon would derive from the re-establishment of the relationship with her father and his side of her family it is clear to the Board that Miss Avon's immediate and longer term quality of life are substantially dependent upon her mother being able to care for her.

Despite the evidence of Mrs Avon the Board is not convinced that a resumption of contact between Jacqueline and her father will result in the consequences feared by Mrs Avon. Further the Board is of the view that it is possible to construct a method of access with sufficient checks and balances to enable any negative behaviour by Mr Avon to be detected and dealt with. By this the Board means that the matter could be quickly returned to the Board with a view to cancellation of any access arrangement. On the above basis the Board has formed the view that in accordance with the provisions of Section 29 of the Guardianship and Administration Act 1993 a Guardianship Order should be made appointing Mrs Avon as full Guardian of Jacqueline Anne Avon subject to conditions which would allow the Protected Person to resume contact with her father and his family. The Board's full order is attached to the Statement of Reasons. The terms and conditions of the access arrangement are designed to keep the arrangement as simple as possible to ensure that Mr Avon is able to enjoy access without breaching his legal duty to stay away from his former spouse and to provide some safeguards to Miss Avon in the event that she reacts adversely. In particular the place of access at either the home of paternal grandparents or at the home of a paternal aunt, the pre-access and post-access assessment by Mr Robinson, and the capacity for the matter to be returned to the Board for an early review are conditions which are designed to be protective of Miss Avon."

8. In its brief judgment allowing the appeal, the Administrative Appeals Court said, inter alia:

"... there is one factor to which, in this Court's view, the Board failed to pay sufficient regard. That is the effect upon Mrs Avon of what she perceived to be the danger of renewed contact between her former husband and their daughter upon her, in view of the history of the relationship between herself and her former husband. In his argument to the Court Mr Haines pointed to a line of authorities which dealt with difficulties of a similar nature in regard to access by a non-custodial parent where the custodial parent would be placed in fear to an extent detrimental to that parent's capacity to properly provide for the care of the child concerned.

Of course those cases concerned infants and the protected person here is aged 25 years. However, it is plainly established on all the evidence that she does not have the mental capacity of a person of her years and the cases to which Mr Haines referred are of great guidance to the Court ...

It is the view of this Court that by virtue of the provisions of section 5 of the Guardianship and Administration Act the interests of the protected person must be paramount. We make it plain that Mr Avon has been punished for his past misconduct and this Court considers that aspect of the matter at an end. However it has been found by the Court that Mrs Avon was the victim of violence at Mr Avon's hands. From the whole of the material considered by the Court pursuant to section 69 of the Act this Court has come to the view that the apprehension of the guardian mother as to the deleterious effect upon her of any provision as to access would adversely affect her capacity to care for the protected person in a proper way.

In coming to that conclusion the Court has considered carefully the submissions made by Mr Charman on behalf of Mr Avon and paid specific regard to the remarks of Bishop J. in this Court in its Criminal Division of 12th September 1994 at page 6, and of Russell J. on the 11th December 1992 in respect of an application for revocation of bail granted to Mr Avon and his adverse comments as to Mrs Avon's state of mind with respect to her former husband.

The Court has mind to the benefits which might accrue to the protected person from contact with her extended family on the paternal side. That there is no suggestion that access as proposed by the Board would pose any physical or emotional threat to the protected person in a direct sense.

On the other hand, the whole of the evidence, in the view of this Court makes it clear that whilst Mr Avon's condition might be stabilising and may be improved by the treatment which he has been receiving and by the new relationship which he has formed it is too early to impose the access provisions suggested by the Board.

This Court makes no judgment as to whether Mrs Avon's apprehensions are well founded or not, but it does accept that they are real in her mind, and that there is substance for them in view of the history between the parties.

In those circumstances this Court is satisfied that the proposed access provisions will have an adverse affect on Mrs Avon which will in turn have a deleterious affect upon her capacity to care for the protected person.

The appeal therefore is allowed to the extent that the access provisions contained in the order of the Board be quashed and there is an order accordingly.

I deliver this with the concurrence of members Dahl and Hassam."

9. It is necessary now to look at other relevant provisions in the Act. The President of the Guardianship Board must be either a magistrate, a legal practitioner of not less than five years' standing or a person who has retired from judicial or magisterial office held in this State or any other State or Territory (s7).

10. Subs (3) of s12 provides:

"The Board must act according to equity and the substantial merits of the case without regard to technicalities or legal forms and is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit."

11. I here interpolate that the cases on provisions such as 12(3) are usefully collected in the case of Trittenheim v H & H Gill Nominees (1994) 63 SASR 434 at 441-442.

12. The Administrative Appeals Court is constituted by s66. It provides:

"66.(1) The Administrative Appeals Court will, in exercising its jurisdiction under this Act, sit with assessors selected under this section.

(2) The Governor will establish a panel of persons to act as assessors, being persons whose expertise is, in the opinion of the Governor, appropriate to the jurisdiction of the Court under this Act.

(3) The Governor will establish a panel of persons to act as assessors, being persons with expertise in representing or promoting the interests of mentally incapacitated persons or with expertise in such other fields as the Governor thinks relevant.

(4) - (5) ...

(6) ... where proceedings are brought before the Administrative Appeals Court under this Act, the judicial officer who is to preside at those proceedings will select a member from each of the panels to sit with him or her as assessors.

(7) - (9) ..."

13. Section 67 provides for appeals from decisions of the Guardianship Board to the Administrative Appeals Court. Section 68 specifies the powers that can be exercised by the Court on hearing an appeal.

14. Section 69 provides:

"69. An appeal to the Administrative Appeals Court is to be conducted as a review of the decision, direction or order appealed against on the evidence given in the original proceedings and on such further evidence as may, with the leave of the Court or pursuant to the request of the Court, be presented to it."

15. It is convenient here to quote s52(1) of the District Courts Act:

"52 (1) In the exercise of a statutory jurisdiction conferred on the Court in its Administrative and Disciplinary Division -

(a) the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and

(b) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms."

16. For completeness I also quote Rule V1-9 of the District Court Administrative Appeals Rules, although it can not affect the proper interpretation of the Act:

"V1-9 The Court when hearing an appeal: (a) shall have the power to allow any amendment upon such terms as it shall think proper; (b) may in its discretion receive further evidence upon any question of fact; (c) may draw inferences of fact; (d) may amend, set aside or discharge any order, decision or direction appealed from; (e) may make any order or give any decision which might have been made by the body or person appealed from and make such further or other order as the justice of the case may require; (f) may direct that the proceeding be remitted for further consideration with or without special direction; (g) may make such order as to costs as it deems fit; (h) may exercise its powers notwithstanding that: (i) any party to the proceedings under appeal has not appealed; (ii) any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal; (iii) that there has been no appeal from some part of the decision; (iv) may reverse or vary any interlocutory order or direction which is incidental to or consequent upon the decision under appeal."

17. Section 70 provides for an appeal with leave of the Administrative Appeals Court or of the Supreme Court to the Supreme Court. Sub-section (4) specifies the powers that the Supreme Court can exercise on the hearing of an appeal, and s71 provides:

"71. An appeal to the Supreme Court is to be conducted as a review of the decision, direction or order appealed against on the evidence that was reviewed by or presented to the Administrative Appeals Court and on such further evidence as may, with the leave of the Supreme Court, be presented to it."

18. It is to be noticed that the wording of s69 (providing for the appeal to the Administrative Appeals Court) and s71 (providing for the appeal to the Supreme Court) is nearly identical. Both sections provide that "the appeal is to be conducted as a review of the decision, direction or order appealed against", and both sections give the court power to grant leave to present further evidence. The Administrative Appeals Court only is authorised to hear further evidence presented pursuant to the request of the Court.

19. There are many authorities on the meaning of the word "review". A useful starting point is the judgment of Wells J (King CJ and Williams AJ concurring) in The Queen v The Industrial Court of South Australia; ex parte District Council of Karoonda East Murray (1980) 24 SASR 117. His Honour had occasion to consider the words "a right of appeal or review against his dismissal" in s15(1)(e) of The Industrial Conciliation and Arbitration Act, 1972. At pp125-126, his Honour said:

"There is no definition in the Act of either word, and they are, therefore, to be read at large in the context in which they appear. The generality of their meaning is, it ought first to be observed, emphasized by the qualifying passage 'who has under any Act or law'; Acts of Parliament and draftsmen of rules, regulations, articles, and other instruments, public or private, manifestly fail, when employing those words, to adopt a uniform usage. Given that both denote a challenge of some kind, before a higher authority, of the decision of a lower authority, a survey of appeals and reviews with which lawyers are reasonably familiar present functions and procedures of most diverse characters. For example, there are the limited appeals by way of case stated, and the older forms of appeals heard in the Court of Crown Cases Reserved. There are the precisely monitored appeals under s.352 of the Criminal Law Consolidation Act, 1935, (as amended). There are Justices Appeals by way of full rehearing, such as are conducted in Victoria, and there are appeals by way of a more limited rehearing such as are conducted by this court under our Justices Act. There is the strange form of appeal taken to the Planning Appeal Board pursuant to the Planning and Development Act, 1966-7, (as amended), according to which the appeal tribunal has wide terms of reference and, accordingly, the responsibility of resolving a set of issues which will generally comprehend, but are far from limited to, those determined by the Authority whose decision is impugned. There are the ordinary civil appeals which are by way of limited rehearing. In Australia and other common law countries, certain appeals were, for many years, brought through modified forms of the prerogative process. It is quite common for the legislature to give a so-called right of appeal, but to leave many of its characteristics to be settled by rule of Court; the Land and Valuation Division of this Court encounters several such appeals - mainly rating and valuation appeals. Over the last decade appeals from boards that carry out a disciplinary function within various trades, professions, and other callings have been set up by legislation. It is impossible to subsume all these examples under one head unless its description is of the most general kind.

The word 'review', associated in par. (e) with the word 'appeal', is even more amorphous in its meaning. It may not, of course, denote the re-examination of a previous decision at all, in the sense that a higher authority examines the validity of a previous decision of a lower authority. In the field of social welfare and workmen's compensation, for example, periodical payments may be reviewed, not because they are alleged to have been wrong, but in order to determine whether, although previously appropriate, they should now be varied to meet a change in circumstances. Taxation specialists are familiar with the reviews carried out by the Board of Review. Criminal lawyers not infrequently ask, on behalf of their clients, for the review of an order for extradition made under the Service and Execution of Process Act. Both reviewing authorities have wide powers to re-examine the decision under attack. In fine, the language used to denote the right upon which the exclusion in par. (e) is conditioned appears to me to be of the most general kind, and is emphasized by an epexigetic clause of equal generality. Even if that language were considered alone and disengaged from all legal principles of statutory construction, I should be disposed to give to it a liberal construction which would be wide enough to encompass the sort of right conferred by Part IXAA of the L.G. Act.

But, in my view, principle and authority confirm that provisional conclusion."

20. In Colpitts v Australian Telecommunications Commission and Others
(1986) 9 FCR 52, Burchett J, then a member of the New South Wales Supreme Court, was required to consider s56 of the Telecommunications Act, 1975 which provided that "the regulations shall make provisions for ... review of a decision" thereunder. He held that to the extent that Reg 35 of the Telecommunications Regulations makes a decision of the Review Tribunal recommendatory and advisory and merely obliges the Commission to give further consideration to the matter, the regulations provide for less than the review which s56 requires. At pp62-64, his Honour said:

"In the context of an Act which does not permit the Commission to promote an officer over another, except subject to a right of appeal to a body with power to set the decision aside, I do not think ss55 and 56 should be construed as permitting retrenchment or compulsory retirement without any effective remedy. The sections, in imperative terms, require that the regulations shall provide for the review of a decision of the Commission under each section; they do not provide for review by the Commission, but for review of its decision. An 'appeal from Caesar to Caesar' is the proverbial paradigm of an empty formality offering no real hope. The Act, which was passed in 1975, would be out of step with numerous contemporary provisions if, in requiring a review, it contemplated merely further consideration by the Commission itself upon receipt of 'recommendation and advice' only from an independent tribunal. It is perhaps sufficient to refer to general legislation such as the Administrative Appeals Tribunal Act 1975 (Cth) and the Administrative Decisions (Judicial Review) Act 1977, both of which use the word 'review' in a sense involving the independent exercise of powers directly affecting the decision reviewed. Section 6 of the Ombudsman Act 1976 (Cth) uses 'review' with reference to a court or tribunal, though also by extension in a looser sense, while the Ombudsman's own action, which has no binding effect, though it may lead to a referral 'to the appropriate authority for further consideration' or a 'report' and 'recommendations' (s15), is not called a review, but an 'investigation'. In respect of the Administrative Appeals Tribunal, there is exceptional provision for a 'review' without binding effect. But this is an exception which confirms the general rule, excluding from it the special case of a decision, concerning immigration, of a kind traditionally the preserve of the responsible Minister (cf Minister for Immigration and Ethnic Affairs v Pochi (1981) 149 CLR 139 at 143). A similar usage is to be found in various pieces of legislation having more restricted areas of operation, for example, the provisions of Pt V of the Income TaxAssessment Act 1936 (Cth) in respect of boards of review, the provisions dealt with in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 368; and Harrington v Harrington (1981) 55 ALJR 566 at 567; and most significantly, s64 of the very Act under consideration, Telecommunications Act 1975, which provides for a 'review' of certain decisions of officers and boards by the Commission itself, with power to alter the result of the original decision.

Neither a further consideration by the Commission, for which reg 35 provides, nor a hearing by a tribunal without power to reverse or even modify the original decision, for which it also provides, can adequately answer the statutory requirement of a 'review'. Together, I think they remain impotent to do so. In the Shorter Oxford English Dictionary the first meaning given of the word 'review' is 'the act of looking over something (again), with a view to correction or improvement', but the meaning in law is also given: 'Revision of a sentence, etc., by some other court or authority.' It is the latter meaning, suggesting an independent tribunal with power to alter the result, which is significant. In Ashfield Municipal Council v Joyce [1978] AC 122 at 134 Lord Wilberforce said, citing Pemsel's case [1891] AC 531:

'It is hardly necessary to add to this the reminder, from Lord MacNaghten, that "in construing Acts of Parliament, it is a general rule ... that words must be taken in their legal sense unless a contrary intention appears".' (See also Pearce, Statutory Interpretation in Australia (2nd ed), par 44).

That the Shorter Oxford English Dictionary correctly defines the legal meaning of 'review' is confirmed by the cases: See Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 citing Phillips v Commonwealth (1964) 110 CLR 347 at 350, where the High Court chose the word 'review' to describe a rehearing which led to the pronouncement anew of the rights of the parties; R v Nat Bell Liquors Limited [1922] 2 AC 128 at 143 where Lord Sumner also chose the same word to express the breadth of the remedy conferred by a power of rehearing in contrast to the limited reach of certiorari; and Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 408 where Lord Diplock said: 'Judicial review ... provides the means by which judicial control of administrative action is exercised' (emphasis added). Use of the word in this context is discussed in Woss v Jacobsen (1985) 60 ALR 313.

It may be conceded that, in an appropriate context, the word 'review' could have a quite amorphous meaning; but the word is here used in an Act to describe a challenge, to be brought by 'application', to administrative action, provision for which is to be made by regulations. In such a setting a legal signification is suggested. And the tide of modern legislation, in the area of administrative decisions, has for some time flowed strongly in the direction of fuller rights of review. In my opinion the regulations provide for less than the review which s56 requires shall be available to an officer affected by a decision under the section."

21. The next case is Santos Limited v Saunders (1988) 49 SASR 556. Section 96 of the Workers Rehabilitation and Compensation Act, 1986 then provided for a review by a review officer. Under that section the review officer was required to "make a fresh determination of the matters to which the decision subject to review related". At p559, King CJ said:

"The mandate to 'make a fresh determination' imports, in my opinion, a review de novo in which the review officer must review all material which was before the Corporation, receive such additional evidentiary material as he thinks proper and make a fresh judgment on the matter. This includes exercising any discretion afresh and unimpeded by the manner in which the Corporation exercised the discretion. The s96 procedure is not an appeal and the principles governing appeals against the exercise of discretions, in my opinion, have no application. As the review officer conducts a review of the decision of the Corporation, the requirement of s60 that the Corporation have regard to the matters enumerated in subs (4) binds him also. He must therefore have regard to the matters enumerated in pars (a) to (f) and to such matters as the Corporation thought fit to have regard to under par (g). He is required, however, to exercise afresh the discretion conferred by subs (3). He is entitled to do that upon any proper grounds which are relevant to the purposes of the Act, and is not limited, in the matters to which he may have regard, to those enumerated in pars (a) to (f) of subs (4) and those to which the Corporation has had regard under par (g)."

22. At pp568-569, von Doussa J said:

"A review is not an appeal. Section 96(2) requires that the review officer shall make 'a fresh determination of the matters to which the decision subject to review relates' and s88 requires that in doing so he 'shall act according to equity, good conscience and the substantial merits of the case'. The review officer is required to consider the matter de novo and to arrive at a decision independently of the process of reasoning and the decision of the Corporation. It is proper that he note the decision and the reasons of the Corporation for, after all, he is reviewing that decision. After considering the views of the Corporation, he must form his own opinion, and in doing so, is not bound by the views of the Corporation: Re Becker and Minister for Immigration and Ethnic Affairs (1977) 32 FLR 469 at 473. If the review officer differs in any respect from the views of the Corporation, he must substitute his own views. He must do so even where it is not possible for the applicant to demonstrate a particular error in law or in fact by the Corporation. The review officer must arrive at a decision which on the merits of the case and having regard to the matters properly to be taken into account, he considers to be the proper decision in all the circumstances."

23. In Smith v St John Ambulance Australia - South Australia Inc and Others
(1991) 162 LSJS 404 I had occasion to consider s98 of the Equal OpportunityAct, subs 4 of which provided "an appeal under this section must be conducted as a review of the decision or order of the Tribunal". At p416, I said that I had only found two legislative provisions in which the word "review" is used in this State, the Act now under consideration not then having been passed. I referred to s21(a) of the Commercial Tribunal Act 1982 and to Rule 98.01 of the Supreme Court Rules which provides for judicial review. I could have added a reference to Rule 101.21 of the Supreme Court Rules which provides for review by a Judge of a taxation of a bill of costs. At p418, I said:

"I do not consider it necessary here to define exhaustively the nature of the appeal under s.98, but at least I have reached the conclusion that such an appeal is not a rehearing, and that the appeal is not confined to questions of law. Like 'judicial review' under Rule 98, the appeal affords an opportunity to look over the decision of the Tribunal and to identify and correct any error, regard always being had to the fact that the appeal is an appeal from a specialist tribunal, and that in consequence the court will not lightly overturn the opinion of the Tribunal on technical issues of discrimination."

24. That passage in my judgment was quoted in the appeal to the Full Court in his judgment by Cox J, White ACJ and Mohr J concurring, see 166 LSJS 231. At p232, Cox J said:

"I see no reason, with respect, to doubt the correctness of that understanding of the nature of this appeal, but the point was not argued before us and I do not express any firm opinion about it."

25. The next case is Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSW LR 580. The New South Wales Court of Appeal was there concerned with the nature of the review by Judge of the Compensation Court of a Commissioner's decision. In a judgment with which Waddell A-JA and Samuel A-JA agreed, Kirby P (as he then was) said at pp586-587:

"In Watson [v Hanimex Colour Services Pty Ltd NSW Court of Appeal, 28 November 1991, unreported], there were some differences in this Court concerning the entitlement of a worker to adduce evidence on a review where such evidence was not adduced before the commissioner. I was inclined to take a wider view of that entitlement. Handley JA (with whom on this point Hope A-JA agreed) took a more limited view about the tender of fresh evidence and the conduct of a hearing de novo. Their Honours confined such a procedure to 'a proper case': cf Schweppes' Ltd v Archer (1934) 34 SR (NSW) 178 at 183; 51 WN (NSW) 71 at 72-73. However, these remarks were by way of obiter in Watson. They were not part of the holding because, in Watson, no application had been made to call fresh evidence on the 'review', any more than it was in the present case.

The remarks which I otherwise made about the nature of 'review' gained the concurrence of the other members of the Court. Of this I said (ibid, 19-20 ff):

'... Given the juxtaposition with "appeal" I would certainly agree to the appellant's proposition that something wider than the narrow form of reconsideration on an appeal, strictly so called, is contemplated. The fact that there is a decision of the Commissioner which is being "reviewed" postulated that the Judge of the Compensation Court will not start with a blank page but with a formal decision of a person who, in making it, is "taken to be the Court". Thus, unless the "review" persuades the Judge that the order being reviewed should be varied, discharged or otherwise disturbed, the order under "review" will stand and be binding between the parties. This suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. Invoking the review procedure does not sweep aside the effect of the decision. It remains valid unless the Judge, on review, otherwise orders.

I would also agree that the "review" is not confined to the narrow kind of "appeal" allowed from discretionary decisions where some error of principle must be shown. Nor do I believe that the intention of Parliament in providing for a "review" was to make it harder for a party challenging a decision to secure effective reconsideration by a Judge than would have been the case if an "appeal" had been retained as previously provided. There are various reasons for so concluding. They include the two-tiered structure of the Compensation Court; the kinds of matters normally to be assigned to Commissioners; the provision (in the future) for a general appeal including on facts from awards of the Judges; the importance of the decisions that may be made by Commissioners affecting the welfare of workers and imposing significant obligations of employers; and the fact that (prerogative process apart) no other means of reconsideration is available to a disaffected party than the "review" provided by s36.'

Watson was reconsidered by this court in Agfa-Gavaert Ltd v Lee (Court of Appeal, 1 May 1992, unreported). Nothing was said in that case to cast doubt on the correctness of the holding of the Court in Watson. Indeed, counsel for the appellant employer accepted the correctness of Watson in the challenge made in that case which was also to a decision of Burke CCJ. That challenge failed because no legal error was demonstrated.

The employer urged that the function of 'review' in this case should be assimilated to the review by a court of a registrar's decision. It was much more circumscribed than an appeal. There was to be no disturbance except 'in an extreme case': see Schweppes (at 183; 72-73) (a case of a 'review' of a decision of a taxing officer of the court). Alternatively, it was put 'review' was confined to cases where there were 'real and substantial grounds for questioning [the] correctness' of the primary decision: see Street J in Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382 at 383 (a case of a 'review' of the decision of a court-appointed receiver and manager of a company).

Care must be taken in lifting these judicial comments out of their context. The meaning to be ascribed to 'review' in statutory provisions for the superintendence of decisions of taxing officers on bills of costs and receivers and managers administering a company under order of the court is quite different from the meaning to be given to 'review' by a judge of a decision of a commissioner of the Compensation Court. As has been pointed out, the commissioner is, for the purpose of the Act, the Compensation Court. The decisions made affect very substantial rights. They have large consequences both for the worker and the employer. They are not confined to minutiae or to detailed administrative or like decisions. They determine substantive entitlements under a statute often intended to provide a means of sustenance for injured workers. There is nothing in the Act which would warrant confining the 'review' performed by a judge to the very narrow circumstances and limited cases suggested by the employer here. On the contrary, the history of the legislation and the nature and purpose of the function assigned to the judge suggest, as Watson held, that a much larger power was conferred by the facility of review. It was a power which no doubt took into account the respective training, experience and office of the judges of the Compensation Court and of the commissioners: see Compensation Court Act, s22(3). The first submission of the employer is in my view contrary to the holding of this Court in Watson. It adopted an unduly narrow view of the function of the judge on 'review'. It should therefore be rejected."

26. There can be no dispute that both the Guardianship Board and the Administrative Appeals Court are specialist tribunals, as is the Equal Opportunity Tribunal, (see the Smith v St John Ambulance case, supra). Other such tribunals include the Licensing Court of South Australia. As to that, I refer to Tomley Investment Company Propriety Limited v Superintendent of Licensed Premises (1979) 21 SASR 176. At p178, King CJ said:

"The Licensing Court is a special tribunal established by Parliament to adjudicate upon applications and issues arising under the liquor licensing laws. The Judge constituting the Licensing Court is especially appointed to that Court and must be taken to possess a special knowledge and experience of licensing matters. The Supreme Court is given a supervisory role by way of appeal on questions of law. On questions of fact, however, it seems to me that the intention of the legislation is that the decision of the special tribunal will ordinarily be final. In my opinion, this Court should grant leave only in special circumstances. It is unnecessary and probably undesirable to attempt to specify the kind of circumstances which would justify leave, but I think that this Court should be particularly cautious about granting leave to appeal against a decision which depends substantially upon matters of opinion and judgment within the special competence of the Licensing Court. I was persuaded to agree to the grant of leave in this case, not only by the substantial questions raised as to the correctness of certain of the findings of fact, but also by the history of the matter which rendered it most desirable that the case should be finally disposed of by the decision on this appeal."

27. I also refer to the remarks of Wells J about the old Planning Appeal Board constituted under the Planning and Development Act, 1968 in Santin and Others v The Corporation of the City of Woodville(1971) 1 SASR 336. At p339, his Honour said:

"It seems to me that the Act has clearly conferred upon the members a power, and laid upon them a duty, to exercise that skill, knowledge and experience in virtue of which they were appointed to resolve the problems of planning and development of which they are, from time to time, duly seized. The terms of the sub-section just quoted show as clearly as could be the wide area of relevant matters they are obliged to take into account, and the measure of the trust reposed in them by the legislature.

Having regard to the substance and purview of the Act, therefore, it seems to me that, when approaching appeals under s. 25, I should, on the one hand, be prepared, as a matter of course, to examine alleged errors of law or of mixed law and fact and, on the other hand, be slow to interfere with ordinary findings of primary facts, or (more importantly) with decisions on more or less arcane matters of town planning where plainly, in order to reach those decisions, the special abilities of the members of the Board have been brought into play. Compare In re Frederick [1957] SASR 149, at p152. At the same time, I should not, I apprehend, exclude the possibility that cases will occur in which I shall be free to draw inferences of my own from primary facts found by the Board, or in which I shall find it necessary to examine esoteric details of town planning if I am to make such orders and give such directions as I think just."

28. Later in Transfield (Adelaide) Pty Ltd v Corporation of the City of Port Augusta (1982) 29 SASR 467, the same learned Judge said in a judgment, with which King CJ and Mohr J agreed, at p480:

"There has, over the last year or so, been a growing tendency for appellants to institute appeals that are found, whatever the formal grounds may have been, to rest, to all intents and purposes, upon attempts simply to have this Court disagree with the Planning Appeal Board's conclusions upon essentially planning issues.

From the very beginnings of this Division, the Court has been insistent that it is only in exceptional cases that it will interfere with conclusions of that kind. There have been far too many grounds of appeal claiming that the Board gave too much or too little weight to this feature or that feature of the 'relevant matters' referred to by sub-s. (6) of s. 27 of the Act. In general, the Land and Valuation Division does not sit to hear purely planning issues re-argued, unless the Board have plainly made an identifiable and egregious blunder, or have misdirected themselves in law, or the circumstances are, in some respect, quite exceptional. Appeals to this Court are not rehearings. I hope that these remarks will be borne in mind by those asked in the future to advise on the desirability of appeals."

29. I have found all these authorities helpful, but in the end I do not find it necessary to define precisely the nature of the appeal to the Administrative Appeals Court, or the nature of the appeal to this Court. Unlike a review under the old s96 of the Workers Compensation and Rehabilitation Act, they are both appeals, and both are appeals from a specialist tribunal. I do not know why the legislature has provided for an appeal to the Supreme Court in very much the same terms as the appeal to the Administrative Appeals Court. I should have thought it would have been clearer and more appropriate if the second appeal had been confined to questions of law, and even then only by leave of the Supreme Court. On each appeal, the appeal court is required to look over the decision appealed, and to identify and correct any error.

30. I have reached a firm conclusion that the appeal should be allowed, and I can now state my reasons quite briefly. I take as a starting point the fact that the access order of the Guardianship Board was most cautiously and conservatively worded. Without quoting it again, it contains several "checks and balances". Next, the Board had the very considerable advantage which the Administrative Appeals Court did not have, of seeing and hearing the witnesses. Neither party applied to the Administrative Appeals Court or to this court to present further evidence. The order of the Guardianship Board must also be considered in a context which includes the facts that the protected person earlier lived with the appellant for twenty-two years, that there is no evidence of the appellant ever ill-treating her, that Dr Branson, the psychiatrist, gave evidence that the appellant presented no danger to his daughter, and that the appellant has not been in breach of the restraint order since at least September 1995, and possibly since 1 February 1995. Finally, I am impressed by the fact that there was no objective or independent evidence to show that the fears which Mrs Avon has would affect her ability to care for the protected person.

31. I would allow the appeal and restore the order of the Guardianship Board.

OLSSON J:

32. These proceedings come before the Full Court pursuant to the provisions of section 70 of the Guardianship and Administration Act 1993 ("the Act").

33. They are brought by way of appeal against a decision of the Administrative Appeals Court ("the AAC") which, by order dated 25 November 1996, quashed certain provisions of a decision of the Guardianship Board ("the Board") dated 5 September 1996.

34. The decision of the Board was the outcome of a review conducted by it of a guardianship and custody order which was originally made, pursuant to the provisions of the former Mental Health Act 1977, on 29 January 1987, but had last been reviewed on 17 January 1995. The review was extensive, and involved consideration of evidence and submissions proffered in the course of a five-day hearing.

35. The guardianship and custody order had been made in respect of Jacqueline Anne Avon ("Jacqueline"). She is now a 26 year old woman, who was born with Down's Syndrome. It is said that she has a mental age of two to three years. She has a moderate level of intellectual disability, such that she is unable to understand or effectively respond to any oral communication, except of the most basic kind. It is common ground that, due to her mental incapacity, Jacqueline has, at all material times, been unable to express any views concerning the issues to which these proceedings relate.

36. Jacqueline is the elder of two children born of the marriage of the appellant and his wife Anne Avon ("Mrs Avon"). Jacqueline's younger brother, Michael, is now aged 22 years, but he has not participated in the relevant proceedings.

37. It appears that Jacqueline's parents lived together with their two children until she was about 22 years of age. In April 1992 they separated, following a serious incident of violence by the appellant against his wife. Since that time Mrs Avon has been the sole primary carer of Jacqueline. I infer that the appellant and Mrs Avon are now divorced.

38. In September 1987 Mrs Avon applied to the predecessor of the Board for an order, under the Mental Health Act 1977, to delegate to her, and certain other persons, authority to consent to medical and dental treatment on behalf of Jacqueline. Such an order was made in October 1987. This seems to have been the first formal proceeding, following the making of the original guardianship order.

39. Subsequent to the assault on Mrs Avon by the appellant in April 1992, the appellant applied to the then Guardianship Board, in January 1993, for guardianship and administration orders in respect of Jacqueline. Ultimately that body made a guardianship and custody order in favour of Mrs Avon, but dismissed the application for an administration order.

40. In its reasons for decision related to the present matter the Board recited that, initially, the appellant sought to obtain a guardianship order, which would have had the effect of placing Jacqueline in the custody of Mrs Avon, upon the footing that she had day to day decision-making about her affairs and lifestyle, but reserved what the appellant referred to as major decisions involving health care and so on for decision by both parents. Eventually the appellant abandoned that position and requested the Board to make a guardianship order which would enable the appellant, his parents and family to have regular contact with Jacqueline.

41. The proceedings came before the Board on various dates in March, May and August 1996. Over that time the position of the interested parties varied somewhat. It was, at all times, common ground that Mrs Avon should be appointed as guardian for Jacqueline and have primary custody of her. However the principal dispute which arose between her and the appellant was in relation to the appellant's desire to have ongoing access to Jacqueline. Mrs Avon has constantly opposed any form of access by the appellant and his family, presumably because of what has been a long history of turbulent relationships between herself and the appellant.

42. It is not disputed that, about 10 or 11 days after the separation in April 1992, the appellant approached Mrs Avon at Football Park, assaulted her and inflicted a wound in her upper back with a small bladed knife. In March and June 1993 respectively, he pleaded guilty to an offence of attempted wounding with intent to cause grievous bodily harm, in respect of the Football Park incident, and also admitted a variety of counts of breach of bail conditions, one count of a breach of restraint order and one count of possession of an unlicensed firearm.

43. In early July 1993 the appellant was sentenced in the District Court to 18 months' imprisonment, which was suspended. That was followed by various restraint orders, which were breached by the appellant on numerous occasions in the latter part of 1993. The appellant's conduct ultimately led to the revocation of the suspension of his custodial sentence and the imposition of a further sentence of imprisonment for breaches of restraint order. In all he was required to serve a non-parole period of 16 months.

44. In the meantime the Board initiated various investigations into the situation and placed Jacqueline in the care and custody of her mother. Whilst in Yatala Labour Prison the appellant was interviewed by a social worker and family therapist appointed by IDSC (Intellectual Disability Services Council). That therapist recorded a series of statements made by the appellant which could only be construed as overt threats against the well-being of Mrs Avon and, possibly, Jacqueline.

45. On 17 January 1995 the Board dismissed the appellant's application for an access and administration order.

46. He was released from custody, on parole, on 1 February 1995. Conditions of his parole included provisions that he was not to contact his wife, his son or Jacqueline.

47. On 5 March 1996 the Parole Board rescinded the parole condition that the appellant not contact either of his children. So it was that, on 25 March 1996, he applied to the Board for an administration order in relation to Jacqueline. This was withdrawn two days later, upon the initiation of a review by the Board of the guardianship and custody order.

48. The appellant's parole expired on 1 June 1996.

49. There can be no doubt that the Board conducted a very in-depth investigation into the whole situation and had the benefit of a substantial body of specialist evidence and advice.

50. At all stages of the inquiry Mrs Avon strongly opposed the appellant's application for access to Jacqueline, stating that she was fearful that he would harm his daughter and would attempt to use access to her as a vehicle to harass and intimidate Mrs Avon herself. It was Mrs Avon's stance that she was the sole primary carer of Jacqueline and that her daughter's quality of life was directly related to the capacity of her mother to remain healthy and capable of providing care for her.

51. Mrs Avon testified before the Board that she feared that, if access was granted, she would be placed under very significant emotional strain; and that this would, in turn, be detrimental for Jacqueline's immediate and future welfare. It was Mrs Avon's view that the appellant's violent and harassing behaviour towards her was only being held in check by various court and tribunal orders, which restrained him from contacting her and the two children.

52. She also told the Board that the appellant's involvement with his daughter had, in historical terms, actually been very limited. She said that she had always been the primary carer for Jacqueline and that the appellant had not been what she described as a significant physical and/or emotional carer. She asserted that the appellant was motivated to apply for access as an indirect means of "getting at her", because he was legally barred from direct contact.

53. In giving evidence before the Board the appellant said that he had not seen his children for approximately four years; and that both he and his family (that is to say, his parents and siblings) missed seeing both children. He asserted that, prior to separation from his wife, he had been involved with the care and support of Jacqueline throughout her life up until the separation. He specifically denied that his present application was motivated by a desire to indirectly harm and/or harass his former wife. He accepted that she wanted nothing to do with him and that he was obliged to leave her alone.

54. Evidence before the Board revealed that Jacqueline regularly attends a form of sheltered employment at Craigburn Farm at Blackwood, which is conducted by Minda Incorporated. Following discussions between himself and the Public Advocate, who participated in the hearing, the appellant proposed that contact with Jacqueline could occur at Craigburn Farm, under the supervision of the staff at that location. However this did not prove to be practical, because of the unwillingness of the staff of Minda Incorporated to become involved in access arrangements. It was then proposed that access could occur at the Vietnam Veterans' Counselling Service in Adelaide.

55. In support of his case before the Board the appellant called Dr Branson, an experienced forensic psychiatrist, who first came into contact with him whilst he was in the Adelaide Remand Centre in 1992. Dr Branson has, in recent times, had regular contact with him, in his capacity as visiting psychiatrist at the Noarlunga branch of the Department of Correctional Services.

56. Dr Branson testified before the Board that the appellant has a post-traumatic stress disorder, arising from his military service in Vietnam; and also has a very obsessional style of personality, being a person who is particularly sensitive to issues of loss and abandonment. It was his view that, over time, the appellant has learnt to better control his anger; moderate his demands; accept the end of his marriage; and establish a new relationship with a Ms Mayfield. The witness expressed the opinion that the appellant was (and is) not a threat to Jacqueline's well-being and that his desire to try and resume contact with his daughter was both reasonable and understandable.

57. On cross-examination Dr Branson stated that he did not believe that the appellant had posed, or did currently pose, a threat to Jacqueline. He felt that his intention in pursuing contact with his daughter could and should be understood as a natural attempt by a father to resume contact with his child.

58. Whilst he conceded that there were what were said to have been threats made, in 1995, in relation to Mrs Avon, Dr Branson said that there had never, at any stage, been threats in relation to Jacqueline. He had observed the appellant work through his anger at the time in question. He did not believe that any former episode indicated that the appellant continued to pose a serious threat against either his former wife or the children.

59. Despite that evidence Mrs Avon continued, at all stages, to oppose any order for access. It was her attitude that Jacqueline's interests would not be served by allowing contact between the appellant and his daughter, because this would, it was said, place further stress upon Mrs Avon and either diminish her capacity to care for her daughter, or endanger her capacity to care for her in the future.

60. By the end of the Board inquiry it was clear that both the Public Advocate and expert witnesses favoured some form of limited and controlled access by the appellant to Jacqueline, although it was said by the witness Robinson that the primary relationship between Mrs Avon and Jacqueline was critically important to the latter. Robinson also expressed the view that it was necessary to be most cautious about disrupting that arrangement.

61. In the course of reasons for decision which carefully analysed the whole of the material before the Board, its President finally came to the conclusions that:

"Mrs Avon's third objection to contact between Jacqueline and her father is in the view of the Board a much more substantive matter. Jacqueline, now and into the foreseeable future, is under and dependent on the care of her mother. It can be correctly said that Jacqueline's quality of life is underwritten by the availability of Mrs Avon to care for her daughter. If anything happened to Mrs Avon then Jacqueline's circumstances would adversely change.

Mrs Avon has stated to the Board, and the Board accepts the genuineness of her feelings and beliefs, that in her view Mr Avon's request for contact with his daughter is motivated by a desire to get at Mrs Avon, that Jacqueline is in danger from her father and that the impact of Mr Avon's application, the hearing and any order which would allow access would be such as to place unreasonable and intolerable stress on Mrs Avon, thus endangering her physical and mental health and as a consequence compromising Mrs Avon's capacity to care for her highly dependent daughter. If this were to occur and there was clear and convincing evidence to support such views the Board should and could not grant access. From the perspective of Miss Jacqueline Avon her interests are not served if her primary carer's physical and/or mental health are compromised so as to prevent the carer from adequately caring for and supporting Miss Avon.

Whatever benefits Miss Avon would derive from the re-establishment of the relationship with her father and his side of her family it is clear to the Board that Miss Avon's immediate and longer term quality of life are substantially dependent upon her mother being able to care for her.

63. Following that decision Mrs Avon sought and obtained leave to appeal to the AAC against the access order. The matter came before the AAC on 28 October 1996, the court being constituted of a District Court judge and two other members, who were, respectively, a psychiatrist and a social worker by background.

64. On 25 November 1996 the AAC allowed the appeal and quashed the order for access.

65. In the course of relatively brief reasons for decision published by it, the AAC, inter alia, said -

"The Board took into account the effect of Mrs Avon's fear of her former husband's conduct on her capacity to cope with the care of the protected person. The Board held that this was 'an important issue to take into account'. The Board went on to say however, page 7.8 of the Board's reasons that:

'The Board's view (was) that although there was an attempt to paint Mr Avon as a direct threat to his daughter the Board was of the view that no convincing evidence of this matter was disclosed. In the view of the Board Mr Avon does not pose a threat of violence towards his daughter'.

It is the view of this Court that the evidence advanced before the Board entirely justified that finding. However, there is one factor to which, in this Court's view, the Board failed to pay sufficient regard. That is the effect upon Mrs Avon of what she perceived to be the danger of renewed contact between her former husband and their daughter upon her, in view of the history of the relationship between herself and her former husband. In his argument to the Court Mr Haines pointed to a line of authorities which dealt with difficulties of a similar nature in regard to access by a non-custodial parent where the custodial parent would be placed in fear to an extent detrimental to that parent's capacity to properly provide for the care of the child concerned." 66. Later in its reasons for decision the AAC went on to say -

"It is the view of this Court that by virtue of the provisions of s.5 of the Guardianship and Administration Act the interests of the protected person must be paramount. We make it plain that Mr Avon has been punished for his past misconduct and this Court considers that aspect of the matter at an end. However it has been found by the Court that Mrs Avon was the victim of violence at Mr Avon's hands. From the whole of the material considered by the Court pursuant to section 69 of the Act this Court has come to the view that the apprehension of the guardian mother as to the deleterious effect upon her of any provision as to access would adversely affect her capacity to care for the protected person in a proper way." 67. I pause at this juncture to make the point that, on the hearing of the appeal, no further evidence was adduced to the AAC beyond that which had been before the Board. The ultimate conclusion of the AAC, in reality, stemmed almost solely from attitudinal statements made by Mrs Avon, which, so far as I can determine, were not verified by any other, expert, evidence. In other words, her evidence was solely the product of her own perception of the situation and her personal assessment of what might happen if access was permitted in favour of the appellant.

68. The appellant now comes before this Court, pursuant to leave, and argues that the decision of the AAC reflects error on its part, in a number of respects. Principal grounds of appeal pleaded are -

1. That the AAC erred in relying upon family law principles as a basis for its decision.

2. That it failed to give adequate weight to sections 5 and 50 of the Act.

3. That it erred in principle in quashing a decision of the Board, which was based upon the benefit of seeing and hearing witnesses, when there was no demonstrable error in law or fact on the part of the Board.

4. That the AAC decision was unreasonable and against the evidence and the weight of evidence.

5. That there was simply no acceptable basis of evidence to support Mrs Avon's claims that access by the appellant would affect her ability to care for Jacqueline, in the manner asserted in the AAC decision. 69. The grounds of appeal also seek to place in issue a number of factual aspects, which it is unnecessary to recite at the present time.

70. Before turning to the merits of the appeal, as argued before this Court, it is first necessary to direct some attention to the scheme of the Act.

71. It is fair to say that the statute erects the Board as the primary specialist tribunal responsible for determining what care regimes should be implemented in relation to persons who require protection under the Act, by reason of the existence of conditions of mental incapacity, as defined. It stipulates a series of principles to be observed by the Board, the Public Advocate and other relevant persons discharging functions conferred by or under the Act. Key amongst those principles is the paramount concern that consideration must be given to what would, in the opinion of the decision-maker, be the wishes of the protected person in the matter, if that person were not mentally incapacitated, but only in so far as there is reasonably ascertainable evidence upon which to base such an opinion.

72. The Board is established as a tribunal which performs what is essentially a judicial function. It is invested with many of the typical powers of a traditional court and is presided over by a person who is either a magistrate or a legal practitioner of not less than five years' standing.

73. Subsection (3) of s 12 directs that the Board is required to act according to equity and the substantial merits of the case, without regard to technicalities or legal forms and is not bound by the rules of evidence; but may inform itself on any matter in such manner as it thinks fit.

74. An appeal lies from the Board to the AAC pursuant to section 67 of the Act.

75. Pursuant to the provisions of section 52 of the District Court Act 1991 the AAC is enjoined to discharge its appellate functions according to equity, good conscience and the substantial merits of the case. It, also, is not bound by the rules of evidence.

76. Having vested in the AAC various powers which might be exercised on an appeal to it, section 69 of the Act provides that -

"An appeal to the Administrative Appeals Court is to be conducted as a review of the decision, direction or order appealed against on the evidence given in the original proceedings and on such further evidence as may, with the leave of the Court or pursuant to the request of the Court, be presented to it." 77. It is at once to be seen that the AAC is required to conduct what is described as a "review", rather than a traditional appeal. It is also quite obvious that it is entitled to exercise power which is tantamount to an inquisitorial function, should it decide to do so. It did not, in fact, adopt that course in the instant case.

78. The content of these sections is to be contrasted with the provisions of sections 70 and 71 of the Act, which govern appeals from the AAC to this Court.

79. Subsection (4) of section 70 empowers the Supreme Court to dismiss the appeal; affirm, vary or quash the decision, direction or order appealed against; substitute, or make in addition, any decision, direction or order that could be made by the Board; or remit the subject matter of the appeal to the Board for further hearing, or for re-hearing, or make any further or other order as to costs, or as to any other matter, that the case requires.

80. Section 71 of the Act stipulates as follows -

"An appeal to the Supreme Court is to be conducted as a review of the decision, direction or order appealed against on the evidence that was reviewed by or presented to the Administrative Appeals Court and on such further evidence as may, with the leave of the Supreme Court, be presented to it." 81. It will at once be seen that, unlike the AAC, this Court is not invested with specific power to request production of further evidence. However, that and section 52 of the District Court Act aside, the method of conducting the appeal (i.e., as a "review") is prescribed to be the same as that applicable to the AAC.

82. The present proceedings are the first occasion on which an appeal has been prosecuted to this Court under the relatively new provisions of the Act. It is therefore important, initially, to focus attention upon the nature of that process. Similar considerations are, of course, applicable to the appeal to the AAC, given, of course, its inquisitorial function and the impact of section 69 of the Act.

83. Strangely enough there is little direct authority on the question of what is connoted by the expression that the appeal is "to be conducted as a review of the order appealed against". This is an expression not normally associated with appeals to this Court (or for that matter, the District Court.)

84. In my view the provisions of section 70 of the Act are a necessary reflection of the fact that the proceedings at first instance (and even before the AAC) are not conducted within the normal judicial environment.

85. The very fact that both the Board and the AAC are required to arrive at decisions according to equity and the substantial merits of the case, without being bound by the rules of evidence, necessarily gives rise to potential problems and considerations which simply do not arise in relation to traditional inter partes proceedings. It is relatively impractical, in such a situation, for an appellate tribunal to embark upon a consideration of proceedings at first instance on the basis of an appeal stricto sensu.

86. Having said that, it nevertheless remains a matter of importance to determine the basis upon which both the AAC and this Court must go about their appellate tasks under the Act.

87. In my view the appropriate commencement point is my own dictum in Spiel v The Workers Rehabilitation and Compensation Corporation (1992) 58 SASR 45 at 65-66 ("Spiel"). That case focused upon the question of the role of a Review Officer required to review determinations made by the Workers Rehabilitation and Compensation Corporation, pursuant to the Workers Rehabilitation and Compensation Act. I there said -

"The concept of a statutory 'review' is essentially ambulatory and protean in nature, and takes its flavour from the context in which it appears. The Act is unique in its precise expression and detailed nature, and limited assistance is to be derived from my consideration of other different statutory schemes.

Processes of 'review' vary markedly, as to their nature and scope, from one statutory setting to another. That variation can range from a fully inquisitorial function at one end of the scale, to something akin to a more traditional and restricted appellate process at the other. In the end, the characterisation of a particular review process is necessarily the product of a divination of the intendment of the legislature, to be derived from a consideration of the specific statutory scheme in contemplation." 88. A somewhat similar approach was adopted by Burchett J in Colpitts v Australian Telecommunications Commission & Ors (1986) 9 FCR 52 at 62-64. He emphasised that a review process (in the broadest sense of that expression) can vary from one which results in a report having no binding effect at the end of it, to one which has quite specific legal impact.

89. He pointed out that, according to its dictionary definition, the word "review" is the act of looking over something (again), with a view to correction or improvement. It can also mean revision of some former decision by another court or authority, carrying with it a power to alter the result.

90. Burchett J drew attention to what was said in Builders Licensing Board v Sperway Constructions (Syd) Pty Limited (1976) 135 CLR 616 at 620, in which the High Court referred to the word "review" as describing a re-hearing which led to the pronouncement anew of the rights of the relevant parties.

91. In the case of Smith v St John Ambulance Australia - South Australia Incorporated & Ors (1991) 162 LSJS 404 at 418 Matheson J, referring to a review function arising in relation to the Equal Opportunity Tribunal, commented upon the relatively few statutory enactments which employ the word "review" in relation to an appellate-type process. He expressed the opinion that -

"Like 'judicial review' under Rule 98, the appeal affords an opportunity to look over the decision of the Tribunal and to identify and correct any error, regard always being had to the fact that the appeal is an appeal from a specialist tribunal, and that in consequence the Court will not lightly overturn the opinion of the Tribunal on technical issues of discrimination." 92. Such a dictum is in accord with my own comment in Symons v The District Council of Karoonda East Murray (1979) 46 SAIR Pt1 1136 at 1148, to the effect that the essential concept which appears to be enshrined in the dictionary definitions of the word "review" is that a review, in the true sense, contemplates a process whereby an action is re-examined, with a view to correcting or modifying it, if circumstances indicate that the action in question was inappropriate.

93. In the course of his judgment in Boston Clothing Co Pty Limited v Margaronis (1992) 27 NSWLR 580 at 586 Kirby P (as he then was) expressed the view that, where a statute prescribes the conduct of a review of the nature of an appellate-type function, then "something wider than the narrow form of reconsideration on an appeal, strictly so-called, is contemplated."

94. He went on to say that the fact that there is a decision which is being "reviewed" postulates that the reviewing authority will not start with a blank page, but with a formal decision. Unless the review persuades the reviewing body that the order under consideration should be varied, discharged or otherwise disturbed, that order will stand. As he said, it suggests the need, on the part of the aggrieved party, to provide some proper basis for disturbing the decision under challenge. He made the point that his view was not confined to the narrow kind of appeal allowed from discretionary decisions, where some error of principle must be shown. Nor, he said, did it seem that, in providing for a review, the legislature would be setting out to make it harder for a party challenging a decision to secure effective reconsideration by the reviewing authority than would have been the case if an "appeal" had been retained as the appropriate process.

95. Later in his judgment Kirby P made a point somewhat similar to that adverted to by me in Spiel. At the end of the day the width of the function of review must necessarily be extracted from the legislative setting which provides for it. However, normally, the concept of a review, in a setting such as that now under consideration, should be given a liberal construction (cf Wells J in The Queen v The Industrial Court of South Australia; ex parte District Council of Karoonda East Murray (1980) 24 SASR 117 at 126).

96. In the present case what is an issue is clearly not an appeal stricto sensu. It is a process in which this Court is required to reconsider the decision complained of, in the setting which gave rise to it, on a broad basis, having regard to the nature of the jurisdiction exercised under the Act; and to form its own opinion as to the propriety of what was done. In so doing it will, on the one hand, not be fettered by technical principles related to the conduct of appeals, but will necessarily bear well in mind and give due regard to the fact that the decision appealed against is that of a specialist tribunal, which ought not, lightly, to be overturned. On the other hand, it is clearly the intention of the statute that this Court is to exercise an independent judgment in assessing whether or not the court appealed from fell into error in relation to the merits of the proceedings. It must formulate its own conclusion and should not hesitate to give effect to it, if it believes that there are suasive reasons for dissenting from what was done by the AAC.

97. In so saying I recognise the force of the point that the AAC has an extremely wide, discretionary charter, by virtue of section 52 of the DistrictCourt Act. However, as was indicated by Bray CJ in In re An Appeal from the Credit Tribunal by John Martin & Co Ltd (1974) 8 SASR 237 at 245, that is not to say that it is not required to discharge its functions on the basis of well settled principle. It is certainly not a charter for an arbitrary, idiosyncratic approach (Ory and Ory v Betamore Pty Ltd (in liq) and Ors (1993) 60 SASR 393 at 413).

98. Such a conclusion is, of course, equally applicable to the appeal to the AAC as it is to this Court, save that, in the case of the former, it has, as I have earlier pointed out, inquisitorial powers, which are more extensive than any powers vested in this Court.

99. However, given that those powers were not exercised in the instant case, it seems to me that this Court is now required to carry out no less a form of review than the AAC was bound to do.

100. I therefore approach the issues in this case on the foregoing footing.

101. Turning to the grounds of appeal specifically pleaded by the appellant, it seems to me that no good purpose is served by dwelling unduly upon a consideration of the extent to which the principles involved in the family law jurisdiction are equally applicable to matters before the Board. As a matter of plain common sense the potential impact of access upon Mrs Avon and her capacity to continue to be an effective carer for Jacqueline must loom large as important considerations, as was recognised both by the Board and the AAC.

102. It seems to me that this appeal actually falls to be disposed of upon a very short point.

103. On the one hand the Board, having seen and heard the various witnesses, made two critical findings.

104. The first of these was that, in light of all of the evidence adduced (after a hearing extending over five days, in the course of which the issues were exhaustively canvassed) it was not satisfied, as a matter of fact, that a resumption of contact between Jacqueline and her father would result in the consequences feared by Mrs Avon. It was pointed out by the Board that it was possible to construct a method of access with sufficient checks and balances to enable any negative behaviour by the appellant to be detected and dealt with. To that end the Board proposed a very limited and controlled form of access, in the first instance.

105. Whilst there was no doubt about the perception of Mrs Avon that the granting of access would place intolerable stress on her, thereby endangering her physical and mental health, the fact is that, as the Board pointed out, there was a dearth of clear and convincing evidence to support the thesis that that would, indeed, be the practical end result.

106. The second finding which is of considerable importance is that, given the earlier history of violence and inappropriate conduct on the part of the appellant, there was positive evidence before the Board (which it accepted) to the effect that, following the intervention of Dr Branson, there had been significant changes in the appellant's behaviour pattern; and that, in the doctor's assessment, he had progressed, in a positive manner, towards changing his method of dealing with anger, stress, loss and abandonment. It is of particular importance that the medical evidence was to the effect that the appellant was not (and never had been) a risk to his daughter; and that the risk to Mrs Avon had been significantly reduced. The Board positively found that the appellant certainly did not pose a threat of violence towards his daughter.

107. It is to be remembered that the Board took the view, on the whole of the evidence, that, all other things being equal, it is in the interests of Jacqueline to maintain a positive relationship with all of her immediate nuclear family and, also, if possible, her extended family. Once again that is merely a counsel of plain common sense.

108. In crafting an approach towards a proper initial access regime the Board pointed to strategies which could avoid contact between Mrs Avon and the appellant; and would also provide a neutral environment in which access could occur. In the first instance, the proposed access would merely be of a trial nature.

109. In the course of its reasons for decision the AAC acknowledged the evidence before the Board to the above effect and agreed that the Board's general conclusions were entirely justified. It then went on to make the statements which I have, earlier, recited.

110. It was on that basis that the AAC allowed the appeal and set aside the direction for limited access.

111. It seems to me that there is a fundamental difficulty with the above reasoning and conclusion adopted by the AAC.

112. It was a conclusion which was come to solely on a reading of the relevant transcript and documents; and which simply accepted, at face value, the assertions made by Mrs Avon, none of which were supported by any positive evidence whatsoever. Moreover it was also a conclusion which appears to have disregarded the position of permanent disadvantage enjoyed by the AAC in not having seen or heard all of the relevant witnesses, including, in particular, the professional and expert witnesses; specifically, without having seen or heard Mrs Avon under examination in chief and cross-examination; and in the absence of the important "atmosphere" generated by the whole of the evidence at the hearing before the Board (cf S.S. Hontestroom v S.S. Sagaporack [1927] AC 37).

113. It seems to me that, to proceed in the way in which the AAC arrived at its decision, is to fly in the face of well settled principle bearing upon the manner in which an appellate tribunal should approach its task. True it is that this is a very special type of appeal by way of review, but that is not to say that tried and true principles which guide all appellate bodies are simply put to one side, in a situation in which the AAC was doing no more than examine the written record and not, itself, considering any fresh evidence. The pronouncements of the High Court in Devries and Anor v Australian National Railways Commission and Anor (1992-1993) 177 CLR 472 are, with respect, essentially counsels of prudence and common sense of general application. It may, of course, have been a very different situation had the AAC chosen to exercise its own inquisitorial powers, or to receive further evidence.

114. When one reads the quite brief decision published by the AAC there is simply no compelling reason advanced by it as to why the careful and compelling decision of the Board should be rejected as being erroneous; and why it is that the bare, unsupported assertions of Mrs Avon should prevail above all else. This is especially so when the evidence of Dr Branson was uncontroverted.

115. No doubt it would, as I have said, have been otherwise had there been further evidence adduced before the AAC - particularly evidence of a medical nature - or if the AAC had been able to point to some blatant error of reasoning on the part of the Board. However this was not the situation.

116. I must confess that, on a reading of the reasons for the decision of the AAC, I am unable to perceive any satisfying or compelling basis for the views expressed by it. It is no answer to such a conclusion to say that the AAC is a specialist tribunal, the views of which should be accorded considerable respect. It, in turn, owed the same type of respect to the Board, and was under a clear duty to demonstrate error on the part of the latter, before overturning its decision. Whilst it spoke of error, it simply did not make good that bald assertion in any convincing fashion.

117. At the end of the day I am driven to the conclusion that there was no logical and supportable basis for the order made by the AAC; and that there was no warrant for the overturning by it of the carefully reasoned and logical decision of the Board.

118. I would allow the appeal, set aside the order appealed against and restore the order of the Board.

WILLIAMS J:

119. This is an appeal from the Administrative and Disciplinary Division of the District Court (which pursuant to the Land Agents Act No.90 of 1994 Schedule 3 is called the Administrative Appeals Court).

120. That court has exercised jurisdiction in this case according to Pt6 of the Guardianship and Administration Act so as to review a decision of the Guardianship Board concerning access to a protected person by her father pursuant to a Guardianship and Custody order.

121. In exercising the jurisdiction now relevant the Administrative Appeals Court was constituted by a District Court Judge sitting with two assessors in accordance with s66 of the Guardianship and Administration Act.

122. The assessors are selected by the Presiding Judge from a panel of persons with appropriate expertise (see s66(3) and (6) of the Guardianship and Administration Act.)

123. The District Court Acts52 provides special rules as to evidence and procedure when (as in the present case) the Court in its Administrative and Disciplinary Division is exercising a statutory jurisdiction. The section is in well known form. Section 52(1) reads as follows:

"52(1) In the exercise of a statutory jurisdiction conferred on the Court in its Administrative and Disciplinary Division-

(a) the Court is not bound by the rules of evidence but may inform itself as it thinks fit; and

(b) the Court must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms."

124. The effect of this kind of provision has been the subject of extensive comment (see Lunn - Civil Procedure in South Australia - Vol.1 p4545-4546).

125. Appeals from a body with such powers cannot challenge the decision as being against the weight of the evidence although it can be a ground that there was no material on which the Court's conclusion could be properly based - Collins v Minister for Immigration (1981) 36 ALR 598 at 601. The Court is enabled to adopt a broad approach of common sense and common fairness, eschewing all legal and other technicalities; however the Court is still required to observe legal principles.

126. The Administrative Appeals Court (in deciding the matter now under appeal) was itself dealing with an appeal from a decision of the Guardianship Board in accordance with s67 of the Guardianship and Administration Act. The present appeal to the Supreme Court is in accordance with ss70 and 71 of the Guardianship and Administration Act.

127. In the present case evidence was called before the Board but no further evidence has been adduced before the Administrative Appeals Court or before the Supreme Court on the present hearing.

128. Upon the face of the Guardianship and Administration Act the process of review and appeals appears to be expressed in such a way as to make the appeal process before the Supreme Court a mirror image of the appeal process before the Administrative Appeals Court. The powers of the Supreme Court upon appeal are set out in s70 of the Act and (except as to costs) are in very similar the same terms (mutatis mutandis) as the powers of Administrative Appeals Court under s68. Upon the face of the legislation the method of conducting the appeals in each case also appears to involve a duplication of the process.

129. I invite comparison of the following provisions of the Guardianshipand Administration Act.

130. Section 69 reads:

"69 An appeal to the Administrative Appeals Court is to be conducted as a review of the decision, direction or order appealed against on the evidence given in the original proceedings and on such further evidence as may, with the leave of the Court or pursuant to the request of the Court, be presented to it."

131. Section 71 reads:

"71 An appeal to the Supreme Court is to be conducted as a review of the decision, direction or order appealed against on the evidence that was reviewed by or presented to the Administrative Appeals Court and on such further evidence as may, with the leave of the Supreme Court, be presented to it."

132. The present appeal was argued upon the footing that the nature of the appeal to the Supreme Court was of the same nature as the appeal which led to the decision which the Supreme Court is now required to review. I would be reluctant to accept such a proposition. Bearing in mind that the Supreme Court is sitting in this instance as the second court of review - I would expect that the second appeal (which apparently extends beyond matters of law) would be more restrictive than the first. The District Court in this case is sitting in a specialist jurisdiction with the advantage of expert assessors and with the powers of s52 of the District Court Act. The Supreme Court is in a very different position.

133. In my opinion there are sufficient indications in the matters which I have mentioned that Parliament intended the function of the Supreme Court upon hearing an appeal (from the Administrative Appeals Court) to be different from the function of Administrative Appeals Court in conducting a review of a Guardianship Board decision. As this point has not been argued I am reluctant to express myself further than is strictly necessary to dispose of the appeal.

134. I consider that the Supreme Court should only interfere with the decision of the Administrative Appeals Court if an error can be discerned in the decision under review. However, I consider that the Administrative Appeals Court itself has a wider function in conducting a review of a Guardianship Board decision.

135. This matter concerns a dispute as to whether Mr David Avon (the present appellant) should be allowed access to Jacqueline Avon a protected person as part of a Guardianship and Custody Order appointing Mrs Anne Avon as Guardian of Jacqueline. Mr and Mrs Avon are the parents of the protected person. They separated in April 1992 following a violent incident. Mr Avon subsequently seriously assaulted his wife and engaged in the "stalking" of her. A restraining order was made against Mr Avon in August 1993 and varied in December 1995 preventing Mr Avon from having any contact with his wife. Mr Avon pleaded guilty to attempting unlawfully and maliciously to wound Mrs Avon with intent to do her grievous bodily harm on 25 April 1992. There is medical evidence to the effect that there must remain considerable concern about the possibility in the future that Mr Avon may repeat his earlier violent and threatening behaviour towards his wife.

136. In the present case the Administrative Appeals Court was required to re-assess a social risk which was identified in the decision of the Guardianship Board. The Administrative Appeals Court, upon the same material as was before the Board gave different weight to the competing factors than did the Board. On the one hand it is in the interest of Jacqueline that she should re-establish contact with her father. On the other hand the father has a history of violence towards the mother; Mrs Avon asserts that the presence of Mr Avon will place intolerable stress upon her so as to compromise her ability to care for her daughter.

137. The Guardianship Board's order includes a provision for limited access. Upon the review the Administrative Appeals Court denied access to Mr Avon.

138. The issue before the Administrative Appeals Court concerned the way in which Mrs Avon's perceived fear of her husband should be brought to account.

139. This is an issue upon which different people may reach a different conclusion. Whereas the Guardianship Board considered the problem to be manageable the Administrative Appeals Court regarded the apprehension of Mrs Avon as being potentially critical.

140. There are obvious risks in allowing Mr Avon to have access to his daughter. Mrs Avon has an important role in caring for her daughter and this may be placed in jeopardy if Mrs Avon has to live in fear of the "stalking" and other abuse to which she has been subject.

141. The possibility is acknowledged by the Board that Mrs Avon's capacity to care for her highly dependent daughter may be compromised if Mr Avon is allowed to intrude. The Board expressed itself as follows:

"Whatever the benefits Miss Avon would derive from the re-establishment of the relationship with her father and his side of her family it is clear to the Board that Miss Avon's immediate and longer term quality of life are substantially dependent upon her mother being able to care for her.

142. The Administrative Appeals Court considered that the Board had failed to place sufficient weight upon consequences attaching to Mrs Avon's fears. The Board assessed the risk and the Administrative Appeals Court differed in its assessment. I consider that it was part of the Administrative Appeals Court's task to re-appraise the risk as the basis for its own conclusion. In so doing I do not consider the Administrative Appeals Court to have been in error.

143. In my opinion it is within the power of the Administrative Appeals Court upon appeal to re-assess the social risks associated with a decision of the Guardianship Board insofar as those risks affect the well being of the Protected Person. The Administrative Appeals Court properly carried out that task in this case. In my opinion there are no grounds upon which the Supreme Court should interfere with that decision.

144. I would dismiss the appeal.