B v B

[2023] NSWSC 1231

Supreme Court

New South Wales

Medium Neutral Citation:

B v B [2023] NSWSC 1231

Hearing dates:

30 August 2023

Date of orders:

17 October 2023

Decision date:

17 October 2023

Jurisdiction:

Equity

Before:

Lindsay J

Decision:

1.   ORDER that the fourth defendant be released from the undertakings under challenge by him.

2.   ORDER that these proceedings be adjourned to a date after Burwood Local Court’s determination of the Apprehended Domestic Violence Order proceedings before it affecting the plaintiff.

3.   RESERVE to all interested persons liberty to apply in the meantime in case fresh protective orders are sought.

Catchwords:

MENTAL HEALTH — Management of estate — Person incapable of managing her affairs – Undertakings by a family member of incapable person designed to regulate conduct of family member vis à vis incapable person – Protective purpose of undertakings spent – Release from undertakings

Category:

Principal judgment

Parties:

Plaintiff: The son of the first defendant
First Defendant: The widowed mother of the plaintiff and the second and third defendants
Second Defendant: A daughter of the first defendant
Third Defendant: A daughter of the first defendant
Fourth Defendant: The husband of the third defendant

Representation:

Counsel:
Plaintiff: N Kirby
First Defendant: In person, formally represented by the NSW Trustee as manager of her protected estate and the Public Guardian as committee of her person
Second Defendant: In person, self represented
Third Defendant: M Pringle
Fourth Defendant: S Habib SC, R Francois and K Morris
NSW Trustee: J Gardiner, solicitor of the Office of the NSW Trustee
Public Guardian: J Griffiths, solicitor of the Office of the Public Guardian

Solicitors:
Plaintiff: McIntyre Legal
Second Defendant: Self represented
Third Defendant: Glass Goodwin Solicitors
Fourth Defendant: William Roberts Lawyers

File Number(s):

2022/00337637

JUDGMENT

1. The central personality in these proceedings, and the object of orders made upon an exercise of the Court’s protective jurisdiction, is the first defendant, aged 87 years and now a widow.

2. The central question for determination in this judgment concerns her living arrangements in the light of family tensions associated with her state of health and consequent upon the death of her husband during pendency of the proceedings. A son-in-law (the fourth defendant) has applied to the Court for an order that he be released from undertakings that presently prevent him from living with his wife (the third defendant), with whom the first defendant currently lives.

3. The first defendant’s husband of many years, and the father of her children (the plaintiff, the second defendant and the third defendant) died on 30 March 2023 after a period of illness that found him resident in a care facility in and following August 2022.

4. For many years before these proceedings were commenced the first defendant and her husband lived in Unit 2 of a two unit residential building in Drummoyne which they owned as tenants-in-common in equal shares.

5. On 10 November 2022 the plaintiff (the son of the first defendant) filed a summons seeking, inter alia, “orders for the guardianship and management of the first defendant [sic] affairs as the Court sees fit”.

6. The parties named as defendants in the summons were:

1. the first defendant, the person perceived to be in need of protection;

2. the second defendant, a daughter of the first defendant; and

3. the third defendant, a daughter of the first defendant.

7. On 14 April 2023 an order was made for the joinder of the fourth defendant, the husband of the third defendant (and a son-in-law of the first defendant), for the purpose of giving effect to arrangements then thought necessary to keep warring family members at bay.

8. The first defendant currently lives with the third defendant and (subject to a regime of orders and undertakings under reconsideration in this judgment) the fourth defendant in Unit 1 of the Drummoyne residential building. The third and fourth defendants have no formal lease, and pay no rent, referable to their occupation of Unit 1 for many years, a point of some contention on the part of the plaintiff.

9. The plaintiff is a co-executor of the will of his father, the first defendant’s late husband. Left to his own devices he might well seek to evict the third and fourth defendants from the Drummoyne building but, having raised that possibility in submissions, he, when challenged, disclaimed any intention to take any action to disturb their occupation of the premises without notice, bearing in mind that the first defendant remains a co-owner of the property (with the deceased estate of her late husband) and she has manifested a desire to remain living there with the third defendant (and, incidentally, with the fourth defendant).

10. The living arrangements of the first defendant are at the heart of present controversy. The plaintiff is keen to have her moved to an aged care facility. She has, more than once, expressed a preference to remain living with the third defendant (and the fourth defendant) at the Drummoyne property. The second defendant is insistent that the first defendant should live with her as, she says, has been long anticipated by the family and the first defendant has encouraged her, in their private conversations, to believe should happen. The third defendant wants the first defendant to remain with her (and the fourth defendant) in the Drummoyne property. The fourth defendant, having submitted to an interlocutory regime that precludes him from living at the Drummoyne property, wants to return home.

11. The plaintiff and the second defendant accuse the third and fourth defendants of turning the first defendant against them, and improperly encouraging the first defendant to express a preference for a continued residency with the third defendant, with a view to material gain in the form of on going rent free accommodation and the prospect of testamentary preferment. The first defendant is not without assets.

12. The tensions between family members erupted at or about the time the first defendant’s husband went into care and the first defendant moved into the third defendant’s unit. In October 2022 the first defendant ostensibly revoked an enduring power of attorney and an enduring guardianship appointment she had granted to her three children in 2008 and executed a new enduring power of attorney and a new enduring guardianship appointment that excluded the plaintiff.

13. By his summons, the plaintiff challenged the validity of his displacement, alleging that his mother the first defendant had lost transactional capacity on account of a long developing dementia.

14. At a time when the first defendant was represented by a solicitor, her solicitor (on 23 November 2022) informed the Court of the first defendant’s instructions that she was at that time reluctant to have personal contact with the plaintiff. With the leave of the Court, without objection by any party, and without prejudice to any contention that the first defendant lacked capacity to retain legal representation, her solicitor appeared before the Court in her interests, until (on 15 May 2023) the solicitor’s firm withdrew from further participation in the proceedings.

15. On 2 December 2022 the Court appointed the NSW Trustee as receiver and manager of the estate of the first defendant pending consideration of her capacity for self-management and as a means of facilitating the appointment of a visitor to attend upon her. On 9 August 2023 the receivership was terminated and replaced by protective orders that declared that the first defendant is incapable of managing her affairs and committed management of her protected estate to the NSW Trustee.

16. On 14 April 2023 the Court ordered, subject to further order, that the public guardian be appointed as a committee of the person (in effect, a “guardian”) for the first defendant with custody of her person and the following functions:

1. deciding the place (such as a private residence, a retirement village or a nursing home) in which the first defendant is to live;

2. deciding the health care that the first defendant is to receive;

3. deciding the other kinds of personal services that the first defendant is to receive;

4. giving consent to the carrying out of medical or dental treatment on the first defendant; and

5. deciding who may have access to the first defendant, and upon what terms.

17. The NSW Trustee and the Public Guardian have been active in discharging their respective responsibilities.

18. On 15 May 2023 the NSW Trustee filed in court, and the Court made orders for distribution to the parties, a report dated 10 May 2023 prepared by Dr Jane Lonie (a clinical neuropsychologist) on the first defendant’s capacity.

19. On 9 June 2023 the Public Guardian provided a Report to the Court which recorded that the Public Guardian had visited the first defendant at her home on 11 May 2023 and 7 June 2023, on which occasions she expressed her wish to continue to reside with the third defendant.

20. On 27 June 2023, with the benefit of an ACAT assessment of the first defendant and consultations with the first defendant and her family, the Public Guardian published Reasons for Decision in support of a decision that the first defendant continue living with the third defendant at the Drummoyne property. That decision was made on 14 June 2023.

21. Both the plaintiff and the second defendant (on 17 and 18 July 2023 respectively) asked the Public Guardian to review the decision of 14 June 2023. On 21 August 2023 an internal review of the Public Guardian’s decision upheld the original decision, with reasons published to the Court and the family.

22. Between the time of the Public Guardian’s primary decision and the time of the internal review decision, on 9 August 2023 the fourth defendant applied to the Court orally (by reference to draft short minutes of order marked for identification as MFI 4D4) for orders releasing him from undertakings given by him to the Court on 16 May 2023 (and varied on 13 June 2023) to the effect that:

1. he will not, without the leave of the Court or prior written consent of the plaintiff, the second defendant and the third defendant attend upon, or in the near vicinity of, the Drummoyne property; and

2. he will not, without the leave of the Court or the prior written consent of the plaintiff, the second defendant and the third defendant have personal contact with the first defendant otherwise than by way of a meeting with the first and third defendants in a public setting away from the Drummoyne property).

23. In seeking a release from those undertakings the fourth defendant accepted that he would remain bound by an undertaking given to the Court on 16 May 2023 that he will not, by himself, his servants or agents obstruct contact between the plaintiff and the second defendant (or either of them) and the first defendant.

24. An impediment to a consensual resolution of family disputation is that on 2 April 2023 there was (to use a neutral expression) a personal confrontation between the plaintiff and the fourth defendant as a result of which (rightly or wrongly) the NSW Police on 10 April 2023 issued a Provisional Apprehended Domestic Violence Order against the plaintiff expressed to have been made to protect the third defendant, the first defendant and the fourth defendant (named in that sequence). That order called for an attendance by the plaintiff at Burwood Local Court on 20 April 2023, however the Court’s consideration of whether the order should be maintained presently stands adjourned to 29 January 2024.

25. The fourth defendant’s application to be released from the undertakings which presently prevent him from living with the first and third defendants was the subject of oral submissions on 30 August 2023 with the benefit of written submissions from each of the plaintiff, the second defendant, the third defendant and the fourth defendant.

26. The substance of the plaintiff’s summons has been determined by the protected estate management orders made on 9 August 2023 and the appointment of the Public Guardian as a committee of the person on 14 April 2023.

27. There is no present utility in a pursuit in these proceedings of the plaintiff’s challenge to the validity of the enduring instruments (involving a purported revocation of appointments made in 2008 and fresh appointments made in October 2022) because management of the first defendant’s estate and person has been entrusted to the NSW Trustee and the Public Guardian and, should the third and fourth defendants have engaged in any wrongful conduct in the management of the first defendant’s affairs, the proper plaintiff to pursue a remedy against them is the NSW Trustee rather than the plaintiff.

28. A number of orders made, and undertakings given, during the course of the proceedings should continue, in accordance with their terms, until further order given their rationale as a means of protecting the welfare of the first defendant and encouraging her family not to obstruct one another in their engagement with her.

29. If challenged on appeal those orders and undertakings would be characterised as “interlocutory” rather than “final” for the purpose of determining the necessity or otherwise of a grant of leave to appeal (as, possibly, are all orders for the management of the affairs of a person who has been uncontroversially found to be incapable of self-management); but the open-ended nature of an exercise of protective jurisdiction requires an appreciation that access to the Court in aid of a person in need of protection is not governed by the same principles that bring an end to litigation with a final judgment in adversarial proceedings. Multiple or repetitive applications to the Court for an exercise of protective jurisdiction may attract the Court’s jurisdiction to prevent an abuse of process; but, absent an abuse, the Court’s processes remain available for the protection of a person in need of protection even if a new claim for relief mirrors an earlier claim dismissed.

30. In my assessment, in so far as any claim for relief made in the summons has not been dealt with by the appointments of the NSW Trustee and the Public Guardian, the summons should be taken nevertheless to have been substantially determined and kept on foot only to facilitate the continuing operation of such of the “interlocutory orders and undertakings” as thought necessary for the protection of the first defendant.

31. Given the nature of protective proceedings, a dismissal of the summons would not of itself preclude an application being made to the Court in the future by any of the parties to these proceedings, the NSW Trustee, the Public Guardian or any other interested person for orders relating to management of the first defendant’s affairs or for vindication (via the NSW Trustee, the Public Guardian or another duly appointed representative) of rights the first defendant may have against other parties.

32. The object of an order for dismissal (if made) would be simply to endeavour to maintain, through the services of the NSW Trustee and the Public Guardian, an orderly regime for management of the first defendant’s affairs without an expectation on the part of family members that they can routinely agitate their every disagreement before the Court.

33. For the record, subject to allowing the parties an opportunity to be heard about whether particular orders or undertakings should be discharged or varied, the following orders, as made, can be taken to have been intended to have continuing operation unless and until discharged or varied on an application to the Court seeking an order for discharge or variation (with emphasis added to identify the undertakings from which the fourth defendant seeks to be released):

1. An order made on 14 November 2022 to the effect that the second and third defendants by themselves, their servants or agents be restrained from procuring or requesting the first defendant to execute any document to cause any dealing with or transfer of any assets to which the first defendant is entitled either legally or beneficially (except for the purpose of her ordinary living expenses) or superannuation entitlements under [a named] Superannuation Fund.

2. An order made on 14 November 2022 to the effect that the second and third defendants by themselves, their servants or agents be restrained from obstructing communication between the plaintiff and the first defendant, reserving to the first defendant to decide, on her own account, whether and in what circumstances she communicates with the plaintiff.

3. Subject to a variation effected on 13 June 2023, an order made on 21 November 2022 to the effect that the plaintiff, the second defendant and the third defendant by themselves, their servants or agents be restrained from acting, or purporting to act, as an attorney for the first defendant unless, and to the extent that, all three of them, and the first defendant, jointly agree in writing.

4. On 14 April 2023 an order was made (at a time when the NSW Trustee was a receiver and manager rather than, as is now the case, a “financial manager”) that the plaintiff, the second defendant, the third defendant and the fourth defendant by themselves, their servants and agents be restrained from:

1. obstructing or otherwise interfering with the NSW Trustee in the performance of its functions as receiver and manager [sic] of the estate of the first defendant;

2. obstructing or otherwise interfering with the Public Guardian in performance of its functions as a committee of the person of the first defendant;

3. obstructing or otherwise interfering with reasonable communications between the first defendant and themselves jointly or severally;

4. subject to any determination from time to time made by the Public Guardian or the Court as to access to the first defendant, obstructing or otherwise interfering with the reasonable access of themselves, jointly or severally, with the first defendant

5. On 14 April 2023 the Court made an order to the effect that the plaintiff, the second defendant and the third defendant, by themselves, their servants and agents use their best endeavours, in consultation with each other so far as may be reasonable, in the identification and safekeeping of property of the first defendant’s late husband pending such, if any, orders as may be made for administration of his deceased estate.

6. On 16 May 2023 the third defendant (personally, and by her counsel) gave to the Court an undertaking that, pending further order of the Court:

1. she will allow each of the plaintiff and the second defendant jointly or severally reasonable access to the first defendant; and

2. she will not by herself, her servants or agents obstruct contact between the plaintiff and the second defendant (or either of them) and the first defendant.

7. On 16 May 2023 the fourth defendant personally gave to the Court an undertaking that, pending further order of the Court:

1. he will not by himself, his servants or agents obstruct contact between the plaintiff and the second defendant (or either of them) and the first defendant;

2. he will not without the leave of the Court or the prior written consent of the plaintiff, the second defendant and the third defendant attend … upon, or in the near vicinity of, [the Drummoyne premises]; and

3. he will not, without the leave of the Court or the prior written consent of the plaintiff, the second defendant and the third defendant have personal contact with the first defendant.

8. On 13 June 2023 the Court made an order to the effect that the fourth defendant be granted leave to meet with the first and third defendants in a public setting away from the Drummoyne premises.

9. On 13 June 2023 the injunction granted on 21 November 2022 was varied so as to read: “Order, subject to further order, that the plaintiff, the second defendant and the third defendant, by themselves, their servants or agents be restrained from acting or purporting to act as an attorney for the first defendant.

34. None of the “interlocutory” orders that have been made or undertakings that have been noted are intended to obstruct the performance by the NSW Trustee and the Public Guardian of their respective functions.

35. Ideally, if all members of the first defendant’s family could bring themselves to deal with the NSW Trustee and the Public Guardian in an orderly manner and respect the different perspectives of other family members, all the orders and undertakings that limit their freedom of action should be discharged. They are to be continued only in so far as considered necessary for the protection of the first defendant.

36. The specific question stated for the Court’s determination in this judgment is whether the fourth defendant should be released from the undertakings referred to in paragraph 33(g)(ii) and (iii) above.

37. Whatever may be the inconvenience of those undertakings to the third and fourth defendants, that question must be viewed through the prism of an assessment that recognises that the welfare of the first defendant is the paramount consideration. That, in turn, involves an element of “risk management” in management of the affairs of the first defendant vis-à-vis other members of her family, particularly (as the plaintiff and the second defendant put their concerns before the Court) the fourth defendant.

38. In addressing the question for determination in this judgment, and in inviting the parties to be heard about whether particular orders or undertakings should be discharged or varied, I am not to be taken to have determined controversial questions about whether the plaintiff or the fourth defendant was at fault for their confrontation of 2 April 2023; whether, or not, the third and fourth defendants have sought, wittingly or unwittingly, to poison the mind of the first defendant against the plaintiff and the second defendant or either of them; or whether, as the second defendant maintains, the first defendant has expressed to her a desire to live with her.

39. I do not exclude the possibility that both the plaintiff and the fourth defendant bear some responsibility for what happened on 2 April 2023 and are open to criticism about their personal behaviour. Neither do I exclude the possibility that the third and fourth defendants may have spoken unfairly of the plaintiff and the second defendant, with or without a financial motive. Nor do I exclude the possibility that the first defendant has expressed, as a loving mother to a loving daughter, a desire to live with the second defendant.

40. I do not exclude the possibility that the first defendant’s resistance to contact with the plaintiff is an instinctive, reflex response to his insistence (however well intentioned) that she should be cared for in a nursing home.

41. For the purpose of this judgment, I accept that (even if, as is probable, there is a mixture of motives at play in competing contentions about where the first defendant should live) each of the parties to these proceedings has a genuine concern for the welfare of the first defendant.

42. In giving paramount consideration to the welfare and interests of the first defendant I am required (whether exercising the Court’s inherent jurisdiction, jurisdiction governed by section 4 of the Guardianship Act 1987 NSW or jurisdiction governed by section 39 of the NSW Trustee and Guardian Act 2009 NSW) to have regard to the will and preferences of the first defendant.

43. Although it is common ground that the first defendant is incapable of managing her affairs a major factor upon a consideration whether to grant the fourth defendant’s application for a partial release from his undertakings is that the first defendant has on several different occasions expressed a clear preference to remain living with the third defendant and not to enter into residence, for respite care or otherwise, in a nursing home. She has expressed that preference to independent representatives of the NSW Trustee and Public Guardian.

44. The first defendant attended my court personally on four occasions: 16 May 2023, 13 June 2023, and 9 and 30 August 2023. She did not, for the most part, articulate a case on her own behalf; but she was comfortable in the presence of the third and fourth defendants and, in the presence of both the plaintiff and the second defendant, conveyed distress about the pendency of these proceedings and a hope that the proceedings would soon be over. Her demeanour was consistent with independent assessments of her wishes and preferences.

45. Having visited the first defendant in her home environment, a responsible Public Guardian representative is satisfied that, for the time being, she is well able, and safely able, to live with the third defendant.

46. A major concern of the plaintiff about allowing the fourth defendant to return home (shared by the second defendant) is what is perceived to be the volatility of the fourth defendant’s temperament, a factor which may have contributed to his personal confrontation with the fourth defendant.

47. The validity of that concern was not tested before me by cross examination of any party or addressed by evidence of the fourth defendant.

48. Objectively, the plaintiff’s concern about the volatility of the fourth defendant may be offset, at least to some extent, by the fact that the NSW Police have maintained a Provisional Apprehended Domestic Violence Order against the plaintiff, not the fourth defendant.

49. For his part, through counsel, the fourth defendant has expressed anxiety about exclusion from his family home (at a time when he is experiencing ill health) by operation of the undertakings from which he seeks to be released.

50. His submission that he can be relied upon to be of good behaviour if the undertakings are released because he voluntarily gave those undertakings is not as forceful as it might have been had he not endeavoured earlier to avoid participation in the proceedings. Although his undertakings were given voluntarily they were, from the perspective of himself and his wife, expedient in the circumstances in which they were given.

51. During the course of these proceedings all parties have been counselled by the Court, and have been given opportunities, to de-escalate their tensions; to calm down; remain civil; and to be patient with the first defendant and each other.

52. The time may well come when the first defendant is in need of institutional care but the best assessment of the Public Guardian is that that time has not yet arrived and that, until it arrives, the first defendant should be permitted to live with the third defendant.

53. In my opinion, the fourth defendant’s application to be released from some, but not all, of the undertakings presently binding him should be granted. I am mindful that the requirement that he live away from his wife could, if pressed beyond a reasonable period, impact adversely on the welfare of the first defendant, dependent as she is upon day-to-day care afforded by the third defendant.

54. Accordingly, I propose to make an order to the effect that the fourth defendant be released from the undertakings under challenge by him. I propose, also, to order that these proceedings be adjourned to a date after Burwood Local Court’s determination of the Apprehended Domestic Violence Order proceedings before it affecting the plaintiff. I will, at that time, if not earlier, review the pendency of the orders and undertakings subsisting in these proceedings. I will reserve to all interested persons liberty to apply in the meantime in case fresh protective orders are sought.

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Decision last updated: 17 October 2023