BDN (No 2)

[2017] NSWCATGD 44

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BDN (No 2) [2017] NSWCATGD 44

Hearing dates:

18 May 2017 and15 September 2017

Date of orders:

15 September 2017

Decision date:

15 September 2017

Jurisdiction:

Guardianship Division

Before:

R H Booby, Senior Member (Legal)
Dr G Jamieson, Senior Member (Professional)
D R Sword, General Member (Community)

Decision:

026: Review of Guardianship Order

 

1. The request by Mrs TFX to adjourn the review of the guardianship order made on 27 May 2014 is refused.

 

2. The guardianship order concerning Mrs BDN made on 27 May 2014 is lapsed from 15 September 2017.

 

037: Review of an Enduring Guardianship Appointment

 1. The Tribunal adjourned to a date to be fixed an oral application made on behalf of Mrs TFX seeking a review of the enduring guardianship appointment made by Mrs BDN on 5 November 2015 that appointed Mr MPN as her guardian and appointed Mrs OAE, Mr EJN, and Mr EWN as her substitute guardians.

Catchwords:

GUARDIANSHIP – review of guardianship order – remitted from NCAT Internal appeal – need for order – need for accommodation, access, services, healthcare and medical and dental and advocacy functions – allegations that guardian not acting in best interests of appointor – family conflict – mediation previously attempted – subject person’s views considered – welfare and interests of the subject person considered – preserving family relationships – family willing to assist subject persons continuing to reside at home – informal supports – best interests – guardianship order lapsed

 

PROCEDURAL FAIRNESS – recusal – whether presiding member should recuse themselves – views of the parties sought – no objection from parties – member proceeded to hear matter

PROCEDURAL FAIRNESS – request to adjourn the review of the Guardianship Order – objects of Civil and Administrative Tribunal Act 2013 (NSW) (s 3) – best interests – existence of current enduring guardianship appointment – adjournment refused

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), 36(1)
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 3F(3)(d1), 4, 6DA(3)(a), 6DA(5), 14, 14(2), Pts 2-3

Cases Cited:

IF v IG [2004] NSWADTAP 3

Category:

Principal judgment

Parties:

026: Review of Guardianship Order; Application to adjourn review of Guardianship Order

 

Mrs BDN (the person)
Public Guardian (appointed guardian)
Mrs OAE (joined party and substitute enduring guardian)
Mr EWN (joined party and substitute enduring guardian)
Mr EJN (joined party and substitute enduring
guardian)
Mrs TFX (joined party and applicant seeking adjournment of review of guardianship order)

 

037: Review of Enduring Guardianship Appointment

  Mrs BDN (appointer)
Mrs OAE (substitute guardian)
Mr EWN (substitute guardian)
Mr EJN (substitute guardian)
Mrs TFX (applicant)

Representation:

Solicitors:
Walsh & Blair for Mrs BDN
Farrell Lusher for Mrs TFX
M. Duncan & Associates for Mr MPN (deceased) and Mrs OAE

File Number(s):

NCAT 2013/00390876

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

STATUTORY REVIEW OF GUARDIANSHIP ORDER

Background

1. Mrs BDN is 100 years old and resides in her own home in Regional NSW, NSW.

2. Mrs BDN had two children, a son, Mr MPN, and a daughter Mrs GBE. Mrs GBE died in 2013. Mr MPN participated in the first of two hearings in this matter, but died prior to the final hearing in the matter.

3. Mr MPN’s wife is Mrs OAE and their sons are Mr EJN and Mr EWN.

4. The late-Mrs GBE’s daughter is Mrs TFX.

5. Mrs BDN had a one-third interest in a partnership, which had comprised her, the late-Mr MPN and Mrs OAE. The partnership owned a block of nine units in Regional NSW.

6. On 25 July 2003, Mrs BDN appointed Mr MPN and Mrs GBE jointly and severally as her attorneys. On 16 March 2006, she appointed Mr MPN as her enduring guardian.

7. In 2006, the power of attorney was varied, deleting the reference to “several”, thereby converting the appointment to a joint appointment.

8. On 18 September 2013, Mrs TFX sought the review of the operation and effect of the Power of Attorney. She also made applications for guardianship and financial management orders.

9. On 27 May 2014, the Tribunal made orders appointing the Public Guardian as the guardian of Mrs BDN for a period of six months to make decisions for her about her services and access to others and to advocate for her. On that date, the Tribunal also made a financial management order committing Mrs BDN’s estate to management by the NSW Trustee and Guardian (NSWTG) and ordered that the financial management order be reviewed in six months.

10. On 21 November 2014, the Tribunal confirmed the financial management order and determined that the guardianship order made on 27 May 2014 should be allowed to lapse.

11. On 5 November 2015, Mrs BDN made an enduring guardianship appointment appointing Mr MPN as her guardian and appointing Mrs OAE, Mr EJN, and Mr EWN as her substitute guardians. On that date, Mrs BDN also made an enduring power of attorney appointing Mr MPN as her attorney and appointing Mrs OAE, Mr EJN, and Mr EWN as her substitute attorneys.

12. Mrs TFX appealed the decision of 21 November 2014 to lapse the guardianship order and on 16 January 2017, the Review Tribunal ordered that the order made on 21 November 2014 by which the guardianship order was to lapse be set aside, but not until such time as the Guardianship Division re- determined the review of the guardianship order made on 27 May 2014.

13. At a number of directions hearings, and in addition to directions regarding the serving and filing of documents, the Tribunal made directions including those to the following effect:

1. Mrs TFX, Mrs OAE, Mr EJN, and Mr EWN were joined as parties to the review of the guardianship order.

2. The Tribunal consented to the following legal representation:

1. Ms Casey O’Mahony as legal representative for Mrs BDN

2. Ms Marieann Duncan as legal representative for Mr MPN and Mrs OAE

3. Mr Grant Gayler as legal representative for Mrs TFX

3. Documents submitted for the hearing conducted on 21 November 2014 were brought forward to the current hearing.

14. At a directions hearing, the presiding member also advised parties that she sits on another Tribunal with, and therefore has a working relationship with, Professor Z, the author of a report regarding Mrs BDN’s ability to manage her affairs that was submitted to the Tribunal on a previous occasion. She provided an opportunity for any party to object to her continuing to hear the matter. There were no objections to the presiding member continuing to hear the matter.

15. The presiding member considered whether she should recuse herself on the basis of her working relationship with Professor Z and was of the view that she could bring an open mind to the hearing unaffected by that relationship. Accordingly, she was of the view that there was no need to recuse herself.

16. On 18 May 2017, the Tribunal first convened to conduct the remitted matter being the review of the guardianship order that was made on 27 May 2014. On that occasion the hearing was adjourned on a part-heard basis and the Tribunal made directions including those regarding the provision of evidence by the Public Guardian and the translating and reading to Mrs BDN of an agreed version of the Reasons for Decision of the Tribunal upon making the initial guardianship and financial management orders on 27 May 2014.

17. During the period of adjournment, Mr Gayler and Ms Duncan agreed to a redacted version of the Reasons for Decision of the Tribunal that made the original orders and that version was translated into Italian b7 an accredited translator.

18. On 14 September 2017, Mrs BDN attended the premises of a university in Regional NSW where the translated version of the redacted Reasons for Decision was read to her over Skype by an accredited translator.

19. The Tribunal reconvened to conduct the review on 15 September 2017. At that hearing Mrs TFX sought an adjournment of the review hearing so that Mrs BDN could be re-read the redacted Reasons for Decision.

20. At the hearing conducted on 15 September 2017, an oral application was made on behalf of Mrs TFX seeking a review of the enduring guardianship appointment made by Mrs BDN on 5 November 2015.

21. The Tribunal was provided with voluminous documentation relating to the matters before the Tribunal and in support of the matters raised by the parties. The Tribunal read and considered the documentation and considered oral testimony and does not seek to replicate all of that information in these Reasons.

The hearings

22. At the end of these Reasons for Decision are lists of the parties to the application and the witnesses who attended the hearings. [Appendix removed for publication.]

23. At the hearing conducted on 18 May 2017, Mr MPN was in attendance and was a party to the proceedings as an enduring guardian appointed by Mrs BDN in 2006 and 2015. Mrs OAE, Mr EJN, and Mr EWN were parties having been joined by the Tribunal.

24. Mr MPN died prior to the hearing conducted on 15 September 2017. Section 6DA(3)(a) and s 6DA(5) of the Guardianship Act 1987 (NSW) establish that by virtue of their appointment as Mrs BDN’s substitute guardians, Mrs OAE, Mr EJN and Mr EWN are parties to the hearing conducted on 15 September 2017 as defined in s 3F(3)(d1) of the Guardianship Act.

REVIEW OF ENDURING GUARDIANSHIP APPOINTMENT

Background

25. On 5 November 2015, Mrs BDN made an enduring guardianship appointing the late-Mr MPN as her guardian and appointing Mrs OAE, Mr EJN, and Mr EWN as her substitute guardians.

26. At the hearing conducted on 15 September 2017 Mr Gayler, on behalf of Mrs TFX, made an oral application seeking a review of that appointment.

What did the Tribunal have to decide?

27. On reviewing the appointment of an enduring guardian, the Tribunal may:

1. confirm the appointment of an enduring guardian with or without varying the functions of the appointed enduring guardian;

2. proceed as if an application for guardianship or an application for financial management (or both) had been made; or

3. revoke the appointment, with or without then proceeding as if an application for guardianship or an application for financial management (or both) had been made.

28. The Tribunal must not revoke the appointment of an enduring guardian unless:

1. the enduring guardian requests the revocation; or

2. the Tribunal is satisfied it is in the best interests of Mrs BDN that the appointment be revoked.

29. The Tribunal may only proceed as if an application for guardianship or an application for financial management (or both) had been made if it considers it is in the best interests of Mrs BDN to do so.

The Adjournment

30. Prior to the hearing, there was no application made to the Tribunal seeking a review of the enduring power of attorney. However in submissions made on behalf of Mrs TFX, Mr Gayler submitted that the Tribunal should revoke the enduring guardianship appointment made by Mrs BDN on 5 November 2015.

31. In her submissions filed on 13 April 2017 on behalf of Mr MPN and Mrs OAE, Ms Duncan submitted that there was no application on foot seeking the review of the enduring guardianship appointment.

32. During the hearing on 15 September 2017, Mr Gayler submitted, in effect, that the references in his submission to revoking the enduring guardianship should have been accepted by the Tribunal as an application for a review of the enduring guardianship, and as notice that his client’s application was to be extended to a review of the enduring guardianship. In respect of this submission:

1. Mr Gayler made submissions regarding the revocation of the appointment including in submissions filed on 20 April 2017, 9 May 2017 and 14 September 2017. These references post-dated the submission of Ms Duncan, which was to the effect that there was no application seeking a review of the enduring guardianship appointment. Mr Gayler’s submissions are silent on Ms Duncan’s submission on this issue.

2. The Tribunal was not hearing an application by Mrs TFX. It was reviewing the guardianship order made on 27 May 2014. Mrs TFX was a party to the hearing because she had been joined as a party to the review. There was no application by her that could have been extended to constitute an application for review of the enduring guardianship appointment.

3. References to the appropriateness or otherwise of the enduring guardianship appointment could be relevant to the review of the guardianship order to the extent that if there were decisions to be made by a substitute decision-maker, the existence of an enduring guardianship appointment would be relevant to whether or not there was a need to make a guardianship order. The Tribunal took account of the references to the enduring guardianship appointment in that context. However, insofar as the references were in respect of reviewing the appointment, the Tribunal considered these submissions otiose, as there was no application seeking a review of the enduring guardianship appointment.

4. Mr Gayler was the legal representative of Mrs TFX and has represented her at a number of hearings before this Tribunal. There was no review of enduring guardianship listed for hearing by the Tribunal. Had Mr Gayler expected the Tribunal to be hearing such an application, it was open to him to raise the matter with the Registry at any time or to raise that matter with Tribunal at Directions hearings preceding the hearings or at the adjourned hearing held on 29 August 2017. The Tribunal had no evidence that he had addressed the fact that there was no review of the enduring guardianship appointment listed for hearing by the Tribunal.

33. Taking into account the matters canvassed in the preceding paragraphs, the Tribunal does not accept that there was a pre-existing application seeking a review of the enduring guardianship appointment. During the hearing on 15 September 2017 the Tribunal provided an opportunity for Mr Gayler to make an oral application on behalf of Mrs TFX, seeking a review of the enduring guardianship appointment. Mr Gayler made that application.

34. Prior to the oral application for review of the enduring guardianship appointment Mrs BDN made a number of comments such as those to the following effect:

I just want it to end;

We really need to end all this, it is shameful;

Why do we need to continue, it is shameful, on old lady 100 years old, shameful

I would like it all done, it is just shameful

35. In a medical certificate dated 26 August 2017, Dr X states that Mrs BDN had requested her to advise the Tribunal that Mrs BDN would not attend any future meetings of the Tribunal, that she was still grieving the death of her son, Mr MPN, and she was of the view that the stress of the past few years dealing with the Tribunal issues had caused his decline and his death. In a letter to the Tribunal dated 8 September 2017, Ms O’Mahony advises that the medical certificate refers to meetings held after the hearing scheduled for 15 September 2017.

36. The Tribunal considered whether to hear the oral application for the review of enduring guardianship or to adjourn the hearing of that matter, and if so, whether to adjourn the hearing of the guardianship review. The Tribunal took into account submissions in relation to these matters.

37. Mr Gayler said that accepting that there was no formal application made the matter could easily be heard at the current hearing as the evidence to be considered was the same evidence as that already submitted for the review of the guardianship order.

38. On behalf of Mrs BDN, Ms O’Mahony:

1. opposed dealing with the application at the current hearing noting that it was a new application and the parties had come to the hearing prepared to deal only with the review of the guardianship order made on 27 May 2014;

2. opposed adjourning both the current hearing and the hearing of the application for review of the enduring guardianship appointment on the basis that the review of the 2014 appointment was in its second day. The matter had been in train for three years and had included appeals, a number of interlocutory hearings and the current hearings. The Tribunal is required to afford paramount consideration to the best interests and welfare of Mrs BDN, and taking into account the period over which the matter has been in train, those considerations could best be met by proceeding with the hearing as listed. She also submitted that proceeding with the hearing as listed was in keeping with the guiding principle that the Tribunal should aim to achieve just, quick and cheap resolution of the real issues before the Tribunal.

39. On behalf of Mrs OAE, Ms Duncan submitted that the hearing listed for the current proceedings was the review of the guardianship order made by the Tribunal in 2014. At that time, the enduring guardianship appointment that was in place was made in 2006. The current appointment was made in 2016, subsequent to the order being reviewed, and as such it was inappropriate to enter into a review of the current enduring guardianship.

The Tribunal’s conclusion regarding adjournment

40. In conducting the review of the guardianship order the Tribunal needs to take into account current circumstances, including, if relevant, the existence of the current enduring guardianship appointment. For this reason, the Tribunal does not accept the submissions of Ms Duncan, which it took to be, in effect, that it would be inappropriate to conduct the review because the enduring guardianship appointment post-dates the order being reviewed. However the Tribunal decided not to conduct the review on this occasion for the reasons set out in the following two paragraphs.

41. Part 2 of the Guardianship Act deals with enduring guardianship appointments and the review of those appointments and sets out the matters to be considered by the Tribunal, as well as orders that the Tribunal might make when conducting such a review. Part 3 of the Guardianship Act deals with the review of guardianship orders including the matters to be considered by the Tribunal as well as orders that the Tribunal might make when conducting such a review. The matters to be considered by the Tribunal and the options open to the Tribunal on conducting the two reviews are not the same and the evidence would not be the same for both reviews. Whilst some of the evidence and submissions might have relevance to both the matters, the relevance and weight of that evidence would vary between the two matters.

42. The Tribunal must ensure that it conducts its hearings in such a way as to extend procedural fairness to the parties. This includes a requirement that the parties must be given a reasonable opportunity to be heard, and to present their case. Taking into account its view outlined above that there is limited commonality in the evidence in respect of both matters, and differences in relevance and weight of matters pertaining to the two matters, the Tribunal is of the view that the parties have not had a sufficient opportunity to address the application seeking a review of the enduring guardianship appointment, including an opportunity to present additional evidence and to make submissions on all of the evidence.

43. Taking into account the matters canvassed in this section of the Reasons, and as a result of its conclusions set out in the preceding paragraphs, the Tribunal was of the view that the review of the enduring guardianship should be adjourned in the interests of procedural fairness

44. The Tribunal was of the view that if, having conducted the review of the guardianship order made in May 2014, it were of the view that there are decisions that need to be made for Mrs BDN by a substitute decision maker, then the existence of the enduring guardianship appointment would be relevant to the issue of whether or not to appoint a guardian. For this reason the Tribunal carefully considered whether to adjourn the hearing of the review of the guardianship order to a date to be fixed to enable that matter to be heard at the same hearing as the review of the enduring guardianship. However the Tribunal decided to proceed with the review of the guardianship order for the following reasons:

1. The current matter has been on foot since 2014 and the current hearing has followed a number of interlocutory hearings and an adjourned, part-heard hearing. Parties are legally represented and today’s hearing comes at a cost to the parties. The Tribunal is satisfied that proceeding with the hearing is consistent with the principle of providing a just, quick and cheap resolution of the real issue before the Tribunal.

2. Mrs BDN was clearly of the view that the matter should be concluded as soon as possible and her statements to the effect that the hearings were “shameful” and her presentation during the hearings indicated that she was experiencing some stress and discomfort as a result of the hearings. This view was supported by Dr X’s certificate that indicated that Mrs BDN would not attend any future hearings. Mrs BDN has clearly expressed a desire for the matter to be finalised. The Tribunal accepts the evidence by and on behalf of Mrs BDN that she has found the proceedings to date to be stressful and she wants the current matter finalised as soon as possible.

3. If the Tribunal adjourned the currently listed review, the content of Dr X’s letter suggests that Mrs BDN would not be present at the adjourned hearing. The Tribunal considered it important to obtain her views if possible and that to do so it was preferable to continue with the current hearing where she would be present to put her views.

4. The review of the enduring guardianship appointment and the review of the guardianship order are separate matters and, as noted above, the evidence in respect of both matters is not the same. If it is possible to proceed to a decision in the current hearing, the possibility of some future hearing in relation to a different matter should not prevent the Tribunal exercising its jurisdiction at the current hearing. If the Tribunal were to make a decision that required review taking into account the finalisation of the application to review the enduring guardianship, that can be addressed in future hearings.

45. Taking these matters into account, the Tribunal is satisfied that it is appropriate in all the circumstances to proceed with the hearing of the review of the guardianship order made in May 2014 despite the making of the application to review the enduring guardianship appointment made in 2015.

Preliminary matter – reading of translated redacted Reasons for Decision to Mrs BDN – request for adjournment

46. When it adjourned the hearing on 18 May 2017, the Tribunal made a number of directions including one to the effect that Mr Gayler of Farrell Lusher Solicitors and Ms Duncan of M. Duncan & Associates should agree on a version of the Reasons for Decision of the Tribunal upon making the order on 27 May 2014 and that the resulting document should be translated into Italian and the translated version should be read to Mrs BDN. There was no objection to this direction, though Mr MPN and Mrs OAE gave evidence to the effect that Mr MPN had read relevant documents to Mrs BDN and Ms O’Mahony said that she had summarised and explained the Reasons for Decision on 27 May 2014 to Mrs BDN.

47. In a letter to the Tribunal dated 14 September 2017 Ms Casey O’Mahony of Walsh & Blair Lawyers states that:

1. The oral reading of the Italian translated redacted Reasons for Decision dated 27 May 2014 took place on 14 September 2017.

2. All parties were made aware of the arrangements and were welcome to attend. The only attendees were Ms O’Mahony and Mrs BDN.

3. The reading was conducted over Skype and was performed by an accredited translator and took 2.5 hours to complete.

48. In a letter to the Tribunal sent by email and dated 14 September 2017 Mr Gayler comments to the following effect:

1. Mrs TFX had been of the view that the oral reading was to be done in person and at the Directions hearing he had objected to the possibility that it be conducted over Skype. He asserted that the presiding member had also “rejected the use of Skype”.

2. Mr Gayler only became aware at 10:33am on the morning of the reading of the intention that the reading take place at 10:00am. In his opinion, the arrangements were made in a manner to prejudice Mrs TFX’s participation in the process.

3. In Mrs TFX’s view the process should be conducted as initially envisaged and the reading should be done again in the manner originally agreed to.

49. On behalf of Mrs TFX, Mr Gayler said, in effect, that if the Tribunal was to give weight to the reading of the translated documents, he was seeking an adjournment of the hearing so that the reading could be repeated in person and in the company of Mrs TFX. If, however, the Tribunal was not giving weight to the reading of the document, he was not seeking an adjournment.

50. Ms O’Mahony and Ms Duncan made submission to the effect that their actions in the days leading up to the hearing were aimed at having the document read to Mrs BDN prior to the Tribunal hearing so that the hearing could proceed as planned. They denied that there had been any attempt to exclude Mrs TFX from participating in the reading.

51. Ms Duncan stated that by the late afternoon of the day prior to the reading of the document she had confirmed the booking of the translator and advised of the possible location being the University in Regional NSW where Skype facilities would be used. She conceded that both she and Mr Gayler were in contact with the interpreter service providing the interpreter for the current hearing and that there might have been confusion about whether or not a face to face reading would be possible using that interpreter.

52. In respect of the arrangements regarding the reading, the Tribunal was provided with the following details:

1. In an email to the Tribunal dated 7 September 2017 and copied to Casey O’Mahony, Farrell Lusher and others, Ms Duncan advised that it had not been possible to arrange an in-person reading of the translated material on the day prior to the hearing, as had been initially proposed. Farrell Lusher had expressed concerns about a telephone conference and the firm that had translated the document had offered facilities for a videoconference and M. Duncan & Associates was making inquiries to locate a suitable facility.

2. An email sent at 11:34am on 13 September 2017 from Farrell Lusher addressed to the other parties and the Tribunal, attaches a letter of the dated 13 September 2017 to the Tribunal stating that the firm had received advice that no-one was available from the translator service to undertake the reading of the document and it seemed that the reading would not take place prior to the hearing on 15 September 2017.

3. An email sent at 1:18pm on 13 September 2017 from Ms Duncan addressed to a number of addressees, including Farrell Lusher, advised that the organisation that had undertaken the translation of summary judgment could provide a translator to read the document on Thursday 14 September 2017 over Skype. In this email Ms Duncan also states that she needed to advise “as soon as possible” and that she had “limited availability” during the afternoon as she would be attending a training seminar.

4. An email sent on at 1:53pm on 13 September 2017 by Ms Duncan advised that Mr EJN could offer Skype facilities at his office unless the reading could be done at alternative premises. That email also states

“And in such case if there is any continuing issue about the reading of the translation to [Mrs BDN] possibly the interpreter…of Ethnic Interpreters might still attend [Regional NSW] Friday 15/9 to complete the process oral reading”

5. An email dated 13 September 2017 at 3:52pm and sent by Ms Duncan to the parties stated that the oral translation booking was confirmed and provides details of that booking.

6. An email dated 13 September 2017 at 4:30pm and sent by Ms Duncan to the parties advised that the University in Regional NSW had confirmed the availability of a Skype-equipped room if confirmed and she was awaiting a telephone number to confirm the booking.

7. An email dated 13 September 2017 at 5:06pm and sent by Ms Duncan to the parties advised that Mr EJN and Ms O’Mahony had confirmed the suitability of the proposed venue and that the preferred venue was at the University in Regional NSW if it could be arranged for 10:00am. She would let the parties know urgently and if it was too late to confirm the University in Regional NSW venue they would use the Skype facilities at the office of Mr EJN.

8. An email dated 9:22am on 14 September 2017 from Ms Duncan to the Tribunal indicates that the reading of the document was scheduled to take place between 10:00am and 12 noon on that day at the University in Regional NSW Campus, that no other member of the family of Mr MPN would be in attendance and that Mrs TFX or her representative had been invited to attend.

9. In an email dated 9:26am on 14 September 2017 and sent to all the parties, Mr Gayler referred to earlier emails received that morning and stated that his client had not agreed to reading the document over Skype and that he had dictated a more substantial response.

10. In a letter forwarded by email dated 14 September 2017 and sent at 10:22am to the Tribunal and copied to the parties or their representatives, Mr Gayler advises that the interpreter attending the hearing would be available to read the translated document to Mrs BDN in person at 8:00am or 8:30am on the morning of 15 September 2017. The letter notes that such a proposal is “problematic” and refers to another letter dated 14 September from Mr Gayler to the other parties which notes that the proposal is “not without problems” because it would cause a long day for Mrs BDN and the reading of the translation would not be completed prior to the scheduled commencement of the hearing on 15 September 2017.

11. Mr Gayler said that was not in the office on the afternoon of 13 September 2017 when the emails were sent by Ms Duncan’s office regarding the proposed Skype reading of the document. He did not deny that the emails were received by his office. Mr Gayler also said that at that time he was still attempting to have the document read in person by a translator and therefore had not advised Mrs TFX of the possibility that reading would take place the next day by Skype at one of the two venues proposed. He said that he was not aware that the Skype arrangements had been finalised until 10:33am on 14 September after the reading had commenced at 10:00am on that day.

12. A certificate was provided by the translator attesting to the reading of the document and Ms O’Mahony also confirmed from her presence at the reading that Mrs BDN was present during the reading and turned pages appropriately in accordance with the material being read.

53. The Tribunal does not accept Mr Gayler’s view that the arrangements regarding the reading were made in a manner to prejudice Mrs TFX’s participation. In reaching that conclusion the Tribunal took into account the following:

1. There was correspondence between the parties referring to problems in arranging a face-to-face translator to read the document.

2. At 11:34am on 13 September 2017 Mr Gayler’s firm indicated that due to the lack of an interpreter the document might not be read to Mrs BDN prior to the hearing on 15 September 2017.

3. Subsequent to Mr Gayler’s email, Ms Duncan sent a number of emails which were to the following effect:

1. The first email establishes that a translator was available to read the document over Skype.

2. The email sent at 1:53am refers to the possibility of reading the document over Skype at the office of Mr EJN and that if there were objections to that way of proceeding it was possible that the reading might still be done on the morning of the hearing by the interpreter provided for the hearing.

3. In a later email Ms Duncan indicates that the reading of the translation over Skype had been confirmed.

4. Ms Duncan advised that facilities for Skype were available in two venues, of which the University in Regional NSW was preferred. If it was not possible to arrange that venue, the alternative venue was the office of Mr EJN.

5. The time of the reading, which was confirmed, was 10:00am to 12:00 noon on 14 September 2017.

4. The Tribunal is of the view that the sequence of emails sent by Ms Duncan establishes that she was keeping all parties informed of arrangements. The only detail not supplied was whether the reading would take place at the University in Regional NSW or at Mr EJN’s office. The Tribunal accepts that this piece of information should have been provided to the parties. However, the omission could have been remedied by action on the part of legal representatives of the parties. Mr Gayler’s office could have contacted Ms Duncan and asked for confirmation of the venue.

5. The Tribunal accepts that Mr Gayler was out of the office on the afternoon of 13 September 2017 and did not personally receive the messages sent by Ms Duncan. However, Mr Gayler accepts that the messages were received at his office. The Tribunal is satisfied that Ms Duncan was justified in not taking additional measures to ensure that Mr Gayler was personally aware of the matters contained in the emails.

54. In respect of the possible adjournment of the hearing to allow the document to be re-read to Mrs BDN, Mr Gayler made submissions to the following effect.

55. In support of his qualified application for adjournment, Mr Gayler submitted that:

1. The Tribunal that made the initial guardianship order was of the view that Mrs BDN had not been fully apprised of the matters that led to that order and Mrs TFX had sought to attend the reading of the translated document that was to explain that Tribunal’s decision. However she was prevented from attending the reading of the translation because of lack of notice of the reading.

2. It was in the best interests of Mrs BDN that the translation be read under the conditions envisaged when the Directions were made and as envisaged by the Tribunal that made the guardianship order in May 2014.

3. For the past four years Mrs TFX had been asking for the Reasons for Decision to be conveyed to Mrs BDN and it is unsatisfactory that the reading took place as it did in a manner that defied “common sense” and was not in the best interests of Mrs BDN.

4. His office had been in touch with the Ethnic Interpreter Service and had arranged for the attendance of an interpreter prior to the commencement of the hearing so that the document could be read at that time.

5. Whilst no formal Directions had been issued by the Tribunal, it was understood by all that the reading should be on a face-to-face basis.

6. He had contacted all parties and had advised that Mrs TFX wanted to be present at the reading of the document and she had been excluded.

56. On behalf of Mrs BDN, Ms O’Mahony submitted that she and Ms Duncan had endeavoured to make suitable arrangements so that the reading could be completed even though the interpreter could not attend in person prior to the hearing. She said that when she collected Mrs BDN from home Mrs BDN had her copy of the translated document in her hand and that she took it to the reading and turned the pages in accordance with where the translator was up to when reading the document. She opposed adjourning the hearing and the re-reading of the document.

57. On behalf of Mrs OAE, Ms Duncan said that:

1. There were no specific directions issued by the Tribunal regarding how the reading of the document should be conducted;

2. The Skype technology was appropriate. The interpreter and Mrs BDN could see each other. The evidence was that Mrs BDN had a hard copy of the document and was reading the document and turning the pages at the appropriate times.

3. Reading the document over Skype had achieved the purpose of having Mrs BDN hear the reasons for the Tribunal’s decisions when it made the orders in 2014.

4. In any case, the evidence of Mrs OAE was that Mr MPN, Mrs OAE or Mr EJN had previously read every document in respect to all of the Tribunal’s hearings to Mrs BDN.

58. As noted above in the section of these Reasons dealing with the application to review the enduring guardianship appointment, during the part of the hearing preceding the application for adjournment, Mrs BDN made comments that were translated to the following effect:

we really need to end all this, it is shameful

why do we need to continue, this is shameful, I am an old lady, 100 years old

I would like it all done, it is just shameful

59. In reaching a decision to refuse the application for adjournment and to proceed with the hearing, the Tribunal carefully considered the evidence and submissions in respect of the reading of the redacted and translated Reasons for Decision from 27 May 2017 and reached the following conclusions:

1. There were no directions issued as a result of that hearing.

2. The transcript of the Directions hearing held on 29 August 2017 was not available to the Tribunal at the substantive hearing. However, In general, the purpose of that Directions hearing was to determine whether it was possible for the document to be read to Mrs BDN in time for the hearing to take place on the listed date.

3. The purpose of the reading was to ensure that Mrs BDN had been apprised of the matters that caused the Tribunal to make the orders in 2014. Mrs TFX’s presence at the reading was not essential to achieve the purpose of the reading of the document.

4. The document that had been read to Mrs BDN was a translation of a document that had been compiled by agreement between Ms Duncan and Mr Gayler. It would not have been appropriate for Mrs TFX to have intervened in the reading of the document had she been present at the reading.

5. Previous Reasons for Decision for the Tribunal’s decisions indicate that Mrs BDN has not accepted criticism of Mr MPN. Given her age and her long held opinions about the allegations made against Mr MPN it was possible that Mrs BDN would be resistant to accepting the information. The likelihood of her accepting the information would not be affected by it being conveyed over Skype rather than in person.

6. There was no evidence that the reading of the document over Skype in conjunction with provision of the written document was less effective than reading the document in person. If Mrs BDN continued to believe that the allegations made against Mr MPN and members of his family were untrue it was not possible to determine if this resulted from her lack of understanding of the matters contained in the redacted reasons or alternatively, her set views about the matter that might not be amenable to change.

7. As noted in the section of these Reasons dealing with the oral application to review the enduring guardianship appointment, Mrs BDN was clearly of the view that the matter should be concluded as soon as possible and her statements and presentation during the hearings indicated that she was experiencing some distress as a result of the hearings. This view was supported by Dr X’s certificate that indicated that Mrs BDN would not attend any future hearings.

8. A major issue of discussion in the hearing conducted so far was the need for, and the likely efficacy of, a guardianship order allocating to a guardian the function of deciding about Mrs BDN’s access to others, and in particular, to Mrs TFX, and a possible allocation of a financial counsellor or similar person to further explain financial matters to her. If Mrs BDN did not attend an adjourned hearing it would not be possible to determine her view of her circumstances, including her views about contact with Mrs TFX and attending any other meeting arranged by a guardian. Her views are important for reaching a conclusion about the need for and efficacy of functions allocated to a guardian.

9. Section 4 of the Guardianship Act requires that the Tribunal place paramount importance on the welfare and best interests of Mrs BDN. In respect of this requirement:

1. The Tribunal accepts that it is in Mrs BDN’s best interests that she be provided with a sufficient opportunity to understand the basis of the Tribunal’s decisions in May 2014 and that she understands Mrs TFX’s motivations in making the initial applications.

1. There is no evidence that the Skype reading was less effective than a face-to-face reading of the relevant information.

2. Taking into account Mrs BDN’s age, the number of Tribunal hearings she has thus far attended and the likely stress of those hearings, it is not in her best interests or conducive to her welfare to adjourn the hearing unless the reasons for doing so are strong.

3. The material contained in the Reasons for Decision regarding the order made on 27 May 2017 is critical of the late-Mr MPN. Previous Reasons for Decision make clear that Mrs BDN had a very close relationship with Mr MPN. Taking into account Mrs BDN’s age, her relationship with her late-son, the recency of his death and the nature of the material contained in the redacted Reasons for Decision, it is likely that requiring her to attend a re-reading of the material would subject her to considerable stress.

10. Section 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) establishes that a guiding principle of that Act is that the Tribunal is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. In respect of this requirement:

1. Parties to the hearing are legally represented at cost to them.

2. Mrs BDN’s knowledge of the basis of the Tribunal’s decisions in 2014 is relevant to the review of the guardianship order in respect of the need for and efficacy of the appointment of a guardian. Whilst these are matters that the Tribunal must necessarily take into account, if Mrs BDN fails to acquire that knowledge, for whatever reason, including if she fails to fully grasp the matters even after they explained to her, or if she persists in refusing to accept the matters as set out in the Tribunal’s reasons, the Tribunal must make a decision about whether there is a need for a guardian and if so, what functions the guardian should be allocated. This is the real issue before the Tribunal.

3. Mrs BDN’s solicitor and the solicitor for Mrs OAE have previously advised that Mrs BDN has been told the reasons for the decisions for the Tribunal in 2014. She has now been read an agreed version of those reasons by an accredited translator.

4. Taking into account the content of Dr X’s letter, adjourning the hearing would be likely to result in Mrs BDN not being present at the adjourned hearing. If this were the case, the likelihood of considering all relevant matters would be significantly reduced.

60. The Tribunal accepted Ms O’Mahony’s statement to the effect that Mrs BDN had attended the entire reading and followed the reading of the document by turning pages in accordance with oral presentation. The Tribunal was satisfied that this constituted an oral reading of the translated document as had been referred to in the Directions issued when the matter was adjourned on 29 August 2017. Mrs TFX’s absence from the reading and submissions that a face to face reading was preferable were insufficient reasons to require Mrs BDN to be present for a re-reading of the material, or to adjourn the current hearing especially as the result of such an adjournment could be that, in accordance with a letter from her doctor, Mrs BDN would not be attendance at a future hearing.

61. Taking into account the matters set out above, Tribunal is of the view that adjourning the hearing so that the material could be re-read under different circumstances was not in Mrs BDN’s best interests nor conducive to her welfare, taking into account her age, level of stress and the nature of the material contained in the document, and is not necessary to facilitate a just resolution of the real issues in the proceedings. The Tribunal is also of the view that adjourning the hearing for that reason is inconsistent with the principle that the Tribunal should conduct itself in such a way as to achieve a quick and fair resolution of the matters before the Tribunal.

62. The Tribunal was also of the view that as she had been provided with an adequate opportunity to understand the material contained in the translated document, Mrs BDN’s best interests did not require an adjournment for the document to be re-read to her. In respect of Mrs BDN’s welfare, as noted above, the Tribunal was of the view that taking into account all of the circumstances it was not conducive to her welfare to require that she attend a repeat reading of the material which is likely to cause her distress.

63. Accordingly the Tribunal decided not to adjourn the hearing so that the redacted Reasons for Decision could be re-read to Mrs BDN and to the extent that Mr Gayler, on behalf of Mrs TFX had requested an adjournment, the Tribunal refused that adjournment.

REVIEW OF GUARDIANSHIP ORDER

What did the Tribunal have to decide?

64. On reviewing the current guardianship order the Tribunal may renew, renew and vary the order or determine that the order is to lapse.

65. The questions to be considered by the Tribunal are:

• Is Mrs BDN someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

• Should the Tribunal make a further guardianship order and if so, what order should be made?

• Who should be the guardian?

• How long should the order last?

Is Mrs BDN someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

66. Section 14 of the Guardianship Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person” (s 3(1) of the Guardianship Act). A person with a disability is a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

3. a mentally ill person within the meaning of the Mental Health Act 2007; or

4. otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2) of the Guardianship Act).

67. The Reasons for Decision of the Tribunal upon making the guardianship order on 27 May 2014 indicate the following in respect of its finding that Mrs BDN was a “a person in need of a guardian.”

1. The Tribunal had regard to a report from Dr X dated 22 November 2013 and 14 January 2014 and also to oral evidence provided by Dr X. In respect of Dr X’s evidence the Tribunal noted:

1. Dr X first saw Mrs BDN in July 2013 and whilst her report indicated that on that occasion she had performed a mini- mental state examination (MMSE) she considered that the results of that assessment were not reflective of Mrs BDN’s cognition and it would be more appropriate for her to be administered the Rowland Universal Dementia Assessment Scale (RUDAS). Dr X appeared not to have conducted a RUDAS assessment. She used a telephone interpreting service to ask questions from the Capacity Toolkit obtained from the NSW Attorney General Department website. Dr X opined that Mrs BDN had the capacity to manage her own financial matters and to make decisions about her medication and health care.

2. Despite Dr X’s evidence, the Tribunal was of the view that Mrs BDN was at least partially unable to make important decisions about her person. The Tribunal noted the following matters in relation to its conclusion on this matter:

1. Whilst Mrs BDN demonstrated a good understanding of a number of matters she was confused about why Mrs TFX had made the application and was apparently of the belief that the applicant’s family wanted her to sell her property and that they had stopped talking to her. This was inconsistent with the evidence that was to the effect that the family of Mrs GBE was concerned about whether Mrs BDN’s affairs were being properly managed. There was no evidence that the family had suggested that her home or the home units in which she owned a share, should be sold. All members of the family of Mrs GBE gave evidence that they had tried to see Mrs BDN but had been rebuffed.

2. The Tribunal was satisfied that Mrs BDN was not able to make an informed decision about her access to the family of Mrs GBE and had been influenced by a mistaken understanding about their concerns about her financial affairs.

3. The Tribunal was satisfied that whilst Mrs BDN had significant capacity to make decisions herself, there was evidence of impairment in her cognition as demonstrated by her evidence and presentation during the hearing and her communications with Dr X about her financial affairs.

3. The Tribunal that made the guardianship order was however satisfied that Mrs BDN was able to make decisions about her accommodation, health care and medical treatment.

68. The Reasons for Decision of the Tribunal when it reviewed the guardianship order on 21 November 2014 indicate that on that occasion:

1. The Tribunal had regard to the results of a RUDAS assessment conducted by Dr X on 13 November 2014 in which Mrs BDN scored 27/30 which is above the cut off for dementia.

2. Mrs BDN maintained her position that the family of Mrs GBE was lying about Mr MPN’s management of her financial affairs without being able to particularise those lies.

3. It was the view of the Tribunal that Mrs BDN continued to have a disability that which at least partially prevented her from making important life decisions.

69. In conducting the appeal against the Tribunal’s decision to allow the order to lapse, the Appeal Tribunal was of the view that the Tribunal as convened on 21 November 2014 failed to adequately explain its view that Mrs BDN was “a person in need of a guardian”.

70. When the Tribunal first convened on 18 May 2017 to conduct the review of the guardianship order, Mrs BDN made comments to the following effect about the matters that resulted in the initial application:

I always gave help to my children;

I work in my garden and get help from my grandson (Mr EJN) – this is why I say that he should not pay rent because I need him – who is going to pay for the work? He helps me a lot, also my son and daughter in law.

1. When asked if she would like to see her granddaughter, Mrs TFX, Mrs BDN said words to the effect of:

Not in the situation she has put me in – not a phone call in 4 years. I was pleased to see them when they were children now they are not children – four years – how can they be – I Always remember them – I was always very fond of them and the dead one and I always ask my brother after them.

…

Four times (before the Tribunal) How is this possible after all the things said about my son, that he is a thief, dishonest, worthless – so may lies have been told – it’s a real disgrace

…

Because of the situation it is impossible, impossible – my son’s situation and all the money I have spent

…

They came after me under stress – shocking - I do not want the money – I want things to be like they used to be. So many troubles because of this. My son needed to dig all around the house. He did so much- they were after me

…

How can I make peace with them after all they have done to my son after all they have done for three years. The situation they have put me in.

…

2. Mrs BDN said that the applicant had told lies about Mr MPN. When asked what lies were told she said, in effect:

That he’s delinquent, stole, did not look after me, that I have lost my mind

3. Further in relation to contact with Mrs TFX, Mrs BDN said, in effect:

When my daughter was dying she said to [Mrs TFX] – look after your grandmother. I did not expect that much – a phone call would have been enough. She said, [Mr MPN], look after your mother.

71. As noted above, a translated version of the agreed upon version of the Reasons for Decision of the Tribunal that made the original orders was read to Mrs BDN over Skype on 14 September 2017. When questioned about the information contained in that reading, Mrs BDN’s comments were translated to the following effect:

Her granddaughter [Mrs TFX] and [Mr EWN] and [Mr NSW] were talking, but she could not repeat everything that was said. She was at the reading for two hours, she was an “old lady” who was “stuck there” for two hours. She would “just like it to end” and she did not want the government involved in her affairs.

She had given lots of money, “helped a lot”, to be put in these conditions in her last days and years. When her daughter was alive her family would come and visit, “but now nothing”. For four years and five months “they have never called to find out how I am”.

They [the family of Mrs TFX] haven’t ever called to find out how I am after all this time.

[Mrs TFX] could have asked ‘how are you, where are you” but she has not asked “not once”.

1. When asked again about the content of the information read to her, Mrs BDN’s translated comments were to the following effect:

I had to read things yesterday. The whole thing - what my son in law did and my son and grandsons…the sorrows I have had to go through. At the end my son died a month ago. Both my children have died now and I am 100 and am still here.

2. When prompted that there was a disagreement between the two sides of her family Mrs BDN said “I know”, “I want it to go back the way it was, to be finished”.

3. When told that she did not need to take sides in the dispute and that her granddaughter wanted to talk to her, Mrs BDN said:

“but how could you talk to me when you put me in such conditions and in the end they killed my son because he was so tense.”

4. When asked if she would like contact with both sides of the family Mrs BDN said in effect:

“I just want good health to my grandchildren. I do not want to be handled by the government. I want it to end”.

5. When asked what she would do if Mrs TFX knocked on her door, and if she would like to have a ‘government person’ assist in that respect, Mrs BDN said, in effect:

I just want it to go back to what it was. I don’t want the way it is now…[Mrs TFX] has not wanted to talk – no I don’t want [Mrs TFX].

I can’t go back because I have seen my son and the way he has suffered. He was put in that condition by them, I just can’t do it. I can’t go back”.

6. When that question was repeated she said words to the effect of:

I would say hello, I can’t say much more, I don’t want to fight but it won’t be like before because it’s been going on for too long, four years and five months I have needed to go to hospital six times. My son looked after me, slept next to me, my poor son was there all along. Now I have my daughter in law and grandsons, all trying to help. I would like it to end and not be handled by the government.

7. When asked if she understood what was read to her over the television screen Mrs BDN said, in effect:

yes he read the document, it was very long and some of it was difficult for me.

8. When asked if the material was difficult to understand because of complexity, or because it was upsetting she said, in effect:

I could understand because I could read it and every so often Casey O’Mahoney helped me.

9. When asked what she understood after the document was read to her, Mrs BDN responded, in words the following effect:

I understood what was read in its entirety but it is difficult for a 100 years old woman to retain it all, to understand it, but I understood it at the time. They say I could be suffering from dementia, what do you mean, not possible, it was 22 pages.

10. When asked why she thought Mrs TFX made the initial application, Mrs BDN said words to the effect of:

I can’t really say – so many stories – to try to put it in practice is a little difficult and you have to understand that at my age – but I have enough capacity in my head

11. When asked what she meant by “so many stories” Mrs BDN said words to the effect of:

everything, talk about my son, [Mr DQE] and [Mrs TFX], Mr EFE and Mr NSE, a little bit of everything

12. When asked of she understood the ‘stories’ Mrs BDN said that she did understand them.

13. (13)   When asked if the stories were “good or bad” she said:

“some were not true, some were –“

14. In relation to the material read to her, Mrs BDN also said words the effect of:

I could understand the document. It was [Mr EJN], [Mr EWN], [Mr MPN], [Mrs TFX] and [Mrs GBE]. Everyone was taking a little. They were “all divided” with [Mrs GBE] and [Mrs TFX] on one side

Mrs TFX’s views regarding whether Mrs BDN is a ‘person in need of a guardian”

72. In affidavits and statements Mrs TFX addresses the issue of Mrs BDN’s capacity to the following effect:

1. Mrs BDN lives alone with little formal assistance. However, she receives a substantial amount of support from others, including the family of Mr MPN.

2. When Mrs TFX spoke to Mrs BDN some time ago, she lacked an understanding about which medical practitioners she should be seeing and how they were dealing with her health issues.

73. Oral and written submissions made on behalf of Mrs TFX in respect of this matter submit that:

1. Despite the fact that she lives alone, Mrs BDN is a person who requires assistance in everyday living due to her age, language difficulties, and lack of sophistication.

2. In May 2014, the Tribunal decided that Mrs BDN could not make decisions about her access to and relationship with Mrs TFX and her family. The concerns that Mrs TFX had raised were substantiated by the Tribunal but Mrs BDN does not accept the matters raised by Mrs TFX. Mrs BDN’s decisions about access to Mrs TFX and her family were influenced by her mistaken view of Mrs TFX’s motivations in bringing the initial application and that circumstance has not changed.

3. The situation outlined by the Tribunal upon making the guardianship order continues to apply in that Mrs BDN remains estranged from Mrs TFX. Her statements even after the reading to her of the redacted Reasons for Decision of the Tribunal for the order made on 27 May 2014 indicate that she remains uninformed about the nature of the original proceedings and the evidence submitted for that hearing.

Views of the late-Mr MPN and Mrs OAE regarding Mrs BDN’s decision-making capacity

74. In an affidavits and statements, the late-Mr MPN and Mrs OAE address the issue of Mrs BDN’s capacity to the following effect:

1. Mrs BDN lives alone, cooks some meals for herself, is a keen gardener and knits for enjoyment and is able to follow knitting patterns. She attends Mass and is able to follow some of the service and readings set out in the church bulletin even though these are in the English language. She remains in contact with members of the community and is able to participate in telephone conversations with friends and family. Her ability to live independently is evidence of her ability to make reasonable decisions about her lifestyle

Other views about Mrs BDN’s capacity

75. During the hearing Mr EJN said that he takes Mrs BDN shopping and she is able to compare the prices of groceries at different stores.

Mrs BDN’s evidence and submissions regarding her capacity

76. In an affidavits, statements and submissions, and in her oral evidence during the hearings, Mrs BDN addresses the issue of her capacity to the following effect:

1. The Tribunal that made the initial order in 2014 was satisfied that Mrs BDN was able to make decisions about her accommodation, health care and medical treatment.

2. Whilst she is of advanced age that fact does not render her incapable of managing her person. She lives in her own home and attends to her garden, knitting and raising hens as well as attending church and community functions and knitting for charity.

3. She is well cared for and assisted by the family of Mr MPN including in respect of activities of daily living, such as showering, housework, socialisation and transport, including her attendance at doctors’ appointments.

4. Mrs TFX and her family have had no contact with Mrs BDN since the initial applications and in Mrs BDN’s view they should have been in contact with her.

5. The bringing of the applications has created a stressful situation for Mrs BDN and her late-son, Mr MPN, and his family. She is of the view that the stress of the hearings contributed to her son’s death. She wants the matter to be finalised.

1. If Mrs BDN does not want to reconcile her relationship with Mrs TFX, that is her decision.

The Tribunal’s decision as to whether or not Mrs BDN is a person in need of a guardian

77. In respect of her level of understanding about the matters that resulted in the initial application to the Tribunal, taking into account the totality of Mrs BDN’s responses when asked about these matters, the Tribunal is satisfied that Mrs BDN has a general understanding that allegations of dishonesty have been made against Mr MPN in respect of the management of her affairs, that there has been an issue about the non-payment of rent by her grandson, Mr EJN, and that these matters were considered by the Tribunal that made the order in May 2014. She also understands the matters were brought to the Tribunal by Mrs TFX and that there is discord related to these matters between the families of her son and daughter and that she resents that she and the family of Mr MPN have been subjected to Tribunal hearings.

78. Whilst being satisfied that Mrs BDN has a general understanding of the matters canvassed in during the hearing that resulted in the appointment of a guardian and financial manager in 2014, the Tribunal is of the view that she lacks a detailed understanding of the specific matters raised.

79. It is unarguable that Mrs BDN is of advanced age and that circumstance might render her less able to understand the details of the matters for which Mr MPN has been criticised. Alternatively, it is possible that Mrs BDN has consistently refused to attend to details regarding those matters because of her emotional commitment to Mr MPN or that there is another explanation as to why she appears not to have a detailed understanding of the matters.

80. Mrs BDN has expressed views to the effect that she has helped all her children and that she does not want “the money”. She has also repeatedly referred to substantial support she has received from the late-Mr MPN and his family, and the lack of contact she had with the family of Mrs TFX since the initial application was made. These matters might explain Mrs BDN’s continued refusal to accept that Mr MPN is culpable to the extent that the Tribunal has indicated on previous occasions.

81. Taking into account all of the evidence, the Tribunal is not in a position to conclude what is the cause of Mrs BDN’s apparent lack of understanding of the specific details of the matters raised in the Reasons for Decision for the order made on 27 May 2014. The Tribunal cannot conclude that Mrs BDN’s failure to accept those matters results from an intellectual, physical, psychological or sensory impairment of the type that renders her unable to understand the material or that her aged renders her unable to do so.

82. Mrs BDN appears to be functioning at a very high-level for a person of her age. However, having regard to the evidence, it is clear that Mrs BDN requires substantial assistance from others to maintain her lifestyle, as is to be expected of a person of her age. The Tribunal is satisfied that as a result of her advanced age, Mrs BDN is restricted in her ability to maintain a safe and healthy lifestyle without substantial assistance.

83. During the hearing Mrs BDN was perseverative and whilst her comments were, on a number of occasions, relevant to the matters being discussed, she also frequently commented regarding her feelings about the ongoing proceedings as opposed to the matters at issue. The Tribunal is satisfied that Mrs BDN had some difficulty understanding and contributing to the matters under discussion.

84. Mrs BDN said that during the reading of the redacted, translated, Reasons for Decision from May 2014, she required some assistance from her solicitor to understand the document.

85. Taking into account her presentation during the hearing as well as the need for assistance at the reading and the assistance provided to Mrs BDN by the family of Mr MPN in her day to day lifestyle, the Tribunal is satisfied, on balance, that due to her age, Mrs BDN is limited in her ability to access, retain and evaluate information over an extended period and to make important lifestyle decisions as a result.

86. Having reached the conclusions outlined in the preceding paragraphs, the Tribunal is satisfied that, whilst she is remarkably able for a person of her age, due to limitations related to her advanced age, Mrs BDN meets the definition as set out in the Guardianship Act as a person in need of a guardian.

Should the Tribunal make a further guardianship order and if so, what order should be made?

87. The Tribunal must consider all of the following matters set out in s 14(2) of the Guardianship Act before exercising its discretion to make a further guardianship order:

1. the views (if any) of:

1. the person, and

2. the person's spouse, and

3. the person's carer and

2. the importance of preserving the person's existing family relationships, and

3. the importance of preserving the person's particular cultural and linguistic environments, and

4. the practicability of services being provided to the person without the need for the making of such an order.

88. These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Guardianship Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).

89. The Reasons for Decision of the Tribunal upon making the order on 27 May 2014 indicate that the Tribunal was of the view that there was a need to appoint a guardian to make decisions about Mrs BDN’s access to Mrs TFX and her family, including the family of Mrs GBE, as well as her services and to advocate for her. The Tribunal’s Reasons for Decision include the following (at page 24):

…the Tribunal is satisfied that it would be in [Mrs BDN]’s best interests for an independent party to be appointed as guardian to make decisions about services, in particular an independent interpreting service or financial counsellor, so that [Mrs BDN] can be fully apprised of the real issue in dispute. The Tribunal is not satisfied that [Mrs BDN] is fully informed about these matters or about her potential future exposure. The Tribunal is also satisfied that an independent party should be appointed to advocate for her in respect of her dealings with the [the family of Mrs GBE] and [the family of Mr MPN] and consideration should be given to the appointment of an independent family mediator to assist [Mrs BDN] in making decisions about access to the family of [Mrs GBE].

The role of the Public Guardian under the order made on 27 May 2014

90. On 21 November 2014, the Tribunal reviewed the guardianship order made on 27 May 2014. In a report to the Tribunal prepared for that review, Sean Hoskings, Principal Guardian, Office of the Public Guardian, provides information to the following effect:

1. The Public Guardian had experienced difficulties in contacting Mrs BDN and Mr MPN. The door to Mrs BDN's house was not answered when the guardian visited and attempts to contact Mr MPN were not returned.

2. The Public Guardian was of the view that the only viable means of giving effect to the order was to facilitate a meeting between the family of Mrs GBE and the family of Mr MPN through an independent mediator.

3. A referral was made to a relationship support services provider and a Ms W of that office was to organise a mediation session. Mrs TFX consented to participation in the meeting and arrangements were in train to invite Mrs BDN to a mediation meeting where she would be assisted by an interpreter.

4. No decisions had been requested or made under the access function. However, the capacity of the Public Guardian to effect any access decision would rely on Mrs BDN’s views and her willingness to engage in such decisions. The Public Guardian is unable to effect potential access decisions without the cooperation of the person under guardianship and would not attempt to do so. Accordingly, the utility of the access function was questioned.

5. A similar issue to that outlined in respect of access applies with respect to services and advocacy. The success of the referral to the relationship support services provider would depend on Mrs BDN’s willingness to attend mediation. Mrs BDN may have made incorrect assumptions about the family of Mrs GBE, but to repair the relationship Mrs BDN would need to be able and willing to participate in mediation and be open to receiving information about the possible causes of breakdown in the family relationships.

6. The Public Guardian was of the view that a further guardianship order was unlikely to [affect] any change in the situation for Mrs BDN and her family.

91. Mr Sean Hoskings gave oral evidence at the hearing conducted on 18 May 2017 which was broadly similar to that contained in the written report canvassed above. During his oral evidence additional information and views were provided to the following effect:

1. Mr Hoskings opined that Mrs BDN was not responsive to the attempts of the Public Guardian to contact her and provide services and that this was because she refused to deal with external services providers proposed by bureaucrats whom she did not know.

2. In response to Mr Hoskings’s comments, Mrs BDN made a statement in words to the effect of:

Yes, I did, true. I have my family, they have always looked after me and it has been enough.

3. On behalf of Mr MPN, Ms Duncan said that Mr MPN denied receiving any contact from the Public Guardian, and that Mrs OAE had taken Mrs BDN to the relationship support services provider for a mediation appointment.

4. Mr Hoskings expressed the Public Guardian’s scepticism regarding the possible implementation of the guardianship order given Mrs BDN’s strong views and the “strong and intractable family dissent”.

5. Whilst the function of services and advocacy was provided to assist to bring Mrs BDN to an understanding of the issues and to assist her to accept mediation, Mr Hoskings said that the guardian’s ability to implement any decisions made under those functions was hampered by Mrs BDN’s resistance and the failure to establish even basic communication with her.

92. In giving his oral evidence, Mr Hoskings was hampered by the lack of access to records of the Public Guardian’s contact with Mrs BDN. Accordingly, upon adjourning the hearing on 18 May 2017, the Tribunal issued directions to the Public Guardian to provide a detailed report regarding the dates and nature of attempted contact by the Public Guardian and others in pursuance of the order made on 27 May 2014.

93. A Public Guardian’s report to the Tribunal dated 8 September 2017 provides the following chart of activity:

21/8/14 – telephoned [Mrs TFX] – call not returned

22/9/14 – telephoned [Mr MPN] – call not returned (there is reference in file notes to discussions with [the relationship support services provider] indicating that that a number of calls made to [Mr MPN] between September 2014 and October 2014 were not returned).

23/10/14 – telephoned [the relationship support services provider] to organise a family meeting – left a message.

27/10/14 – telephone [the relationship support services provider] – left a message

27/10/14 – telephone discussion with [the relationship support services provider] regarding organising a family meeting.

27/10/14 – telephone [Mrs TFX] to discuss family meeting – left message

30/10/14 – telephone discussion with [Mrs TFX] regarding preparations for family meeting.

14/11/14 – attempted to visit [Mrs BDN] in [Regional NSW] – she did not answer the door. Officers remained at the home for approximately 20 minutes and walked around the building. Phoned [Mrs BDN]’s doctor who advised that the officers would need to wait until [Mr MPN] was available later in the day. However officers had to leave to make other scheduled visits.

18/11/14 – telephoned [the relationship support services provider] – left message

19/11/14 – telephoned [the relationship support services provider] – discussed the progress of family mediation

19/11/14 – telephoned [the relationship support services provider] and confirmed contact with [Mrs TFX] and that an assessment had been arranged for 25 November 2014.

94. In the report, the Public Guardian notes that the relationship support services provider were contacted recently and they confirmed that they had contact with Mrs BDN with the assistance of an interpreter but she was deemed unsuitable for family mediation because she became extremely distressed during the assessment and the relationship support services provider did not believe that she would be able to participate in the proposed family mediation.

95. Mr Graeme Smith is the Public Guardian and he gave oral evidence during the hearing. His evidence was to the following effect:

1. There was a delay of some months from the date when the order was made to the date of first attempting to contact Mrs TFX because Mrs BDN’s matter had not been allocated to a guardian because it was not considered to be a priority.

2. In his view, actioning the matter earlier would not have resulted in more efforts to carry out the order as the primary aim was to establish family mediation and the organisation enlisted to attempt that task determined that Mrs BDN was not suitable for mediation.

3. Public Guardian officers travel to Regional NSW approximately three times per year. If, on a visit, Mrs BDN could not be contacted at home, it was unlikely that the officers could return on another day because they would need to move to the next town scheduled for visits.

4. In respect of any current need for an order:

1. According to Mrs BDN’s medical practitioner, she has access to adequate services.

2. There has been no contact from any person suggesting a need for advocacy on behalf of Mrs BDN.

3. Attempts to facilitate access arrangements had been unsuccessful. The relationship support services provider had described Mrs BDN as being distressed and highly emotional and as saying that did not want to participate and she was found to be unsuitable for mediation.

Information provided by the NSW Trustee and Guardian

96. As noted in the reasons for adjourning the hearing on 18 May 2017, on that day, shortly after the commencement of the hearing the Tribunal received a copy of an email dated 18 May 2017 from Alexis Whiter of the NSWTG. The email referred to issues related to the management of Mrs BDN’s financial affairs and included statements to the effect that:

1. Mr MPN had removed all available funds from a joint partnership account and had refused to return Mrs BDN’s share. This matter had been referred to the legal section of the NSWTG.

2. Payments that would otherwise be made from that account were being deducted from rent received from the units owned jointly by Mrs BDN, Mrs OAE, and Mr MPN with the result that Mrs BDN’s income was reduced.

3. Mr MPN was authorising repairs and legal work on behalf of Mrs BDN despite legal advice from the NSWTG that he should cease doing so.

4. Mr EJN had been requested to enter a lease in respect of the apartment in which he lives and which is owned jointly by Mr MPN, Mrs OAE, and Mrs BDN and to commence paying rent but had not done so.

5. The NSWTG had commenced action to have Mr EJN evicted from the premises.

6. The NSWTG was considering what were the best options to increase Mrs BDN’s cash flow. Options included a reverse mortgage over her home, the sale of the home or the forced sale of the units.

7. The NSWTG was considering appointing an authorised visitor to attend Mrs BDN and to provide advice about what might need to happen.

97. Upon adjourning the hearing on 18 May 2017, the Tribunal requested that the NSWTG provide a copy of any report it received from an authorised visitor.

98. In a report to the Tribunal dated 14 September 2017, Ms Karla Jones, a Principal Client Services Officer with the NSWTG, provides information to the following effect:

1. A large sum of money was withdrawn from the account of the partnership that formerly comprised Mrs BDN, Mr MPN, and Mrs OAE. Mrs BDN’s share of those funds had been paid to the NSWTG and was held in Mrs BDN’s trust account.

2. The issue about Mr EJN paying rent on the apartment in which he lives has been resolved and on 8 August 2017, the NSWTG was advised that Mr EJN had signed a lease backdated to March 2017 and was now paying rent.

3. Mrs BDN received a rental income of approximately $1,100 per month in addition to an “overseas pension” of $785.29 per fortnight.

4. The NSWTG was in the process of arranging for an authorised visitor to meet with Mrs BDN.

5. Mrs BDN has sufficient liquid funds to meet her current outgoings for approximately two years. Mr EJN advised the NSWTG that he and his brother were willing to assist to make up any shortfall in Mrs BDN’s budget and this matter was to be discussed in the near future.

The views of the parties

99. In respect of the relationship support services provider matter, Mrs TFX gave the following evidence:

1. In about October 2014, she had a discussion with Sean Hoskings who said, in effect, that he had tried to contact Mrs BDN but had been unable to do so and that he had tried to contact Mr MPN, but that he was not co-operating. Mr Hoskings offered to attempt to arrange mediation through the relationship support services provider.

2. She attended a session with Ms W of the relationship support services provider and had a number of telephone conversations with her. Sometime after January 2015, Ms W told her that Mrs BDN had attended a meeting and had become upset. Ms W had difficulty explaining to Mrs BDN why she was there and Mrs BDN became upset and was complaining about how terrible it was and Ms W stopped the meeting. Mrs TFX comments that she did not know if any member of the family of Mr MPN was at that meeting, but if so, their presence would have obstructed the process.

100. Mrs TFX stated in an affidavit that she “never expected” that the Public Guardian would or could force Mrs BDN “to do or think anything” but hoped that the guardian would “make a reasonable attempt to help her understand what has happened”. In Mrs TFX’s opinion, the Public Guardian had failed in that task.

101. Mrs TFX said in evidence that except in a very limited way, she has not sought contact with, or visited, Mrs BDN since the initiation of the matter out of respect for Mrs BDN's expressed wishes and also because on a prior occasion police were called when Mr DQE visited Mrs BDN.

102. Mr Gayler made submissions the following effect on behalf of Mrs TFX:

1. Since the Tribunal made its order on 27 May 2014 there has been no change in the circumstances related to the issue of access between Mrs BDN and Mrs TFX.

2. It is in Mrs BDN’s best interests to have a relationship with Mrs TFX and her family, as there was previously a close and longstanding relationship between Mrs BDN and the family of Mrs GBE.

3. The family of Mr MPN orchestrated the cessation of the relationship between Mrs BDN and Mrs TFX and her family. Making a guardianship order would contribute to family relationships and would assist Mrs BDN to have appropriate and proper family relationships.

4. Mrs BDN’s lack of desire to reconcile with Mrs TFX must be viewed in the light of the misinformation or lack of information given to her and her failure to understand the nature of the matters that are adverse to Mr MPN and his family.

5. The Public Guardian had made no reasonable effort to implement the order made on 27 May 2014. To do so would have required the Public Guardian to speak with Mrs BDN in circumstances where she was fully informed of all relevant matters, including the Reasons for Decision of the Tribunal upon making the orders in May 2014. A written approach should have been made in addition to the failed attempt to visit Mrs BDN.

6. Whilst Mrs BDN has expressed the view that she does not want a guardian to be appointed, her view should be assessed in light of the issues raised in past hearings, including:

1. That up until 2013 Mrs BDN and Mrs TFX and her family had a loving relationship;

2. Mrs BDN does not properly understand the reasons for the decision to make the order in 2014 and does not understand the relevant facts and circumstances including the matters raised in respect of the probity of Mr MPN and members of his family.

3. Mrs BDN has not been provided with independent legal advice due to an historical connection between Mrs BDN’s current lawyers and the late-Mr MPN and the role played by the family of Mr MPN in communicating between Mrs BDN and her legal representatives.

7. A guardian should be appointed to ensure that Mrs BDN was apprised of the real issues in dispute.

8. The fact that no progress was made with a referral to the relationship support services provider, mediation does not prove that a guardianship order is without utility. The Public Guardian had not made reasonable attempts to fulfil the role under the guardianship order made on 27 May 2017. It is unclear if Mrs BDN attended a meeting with the relationship support services provider with one or more of the family of Mr MPN or with the assistance of an independent interpreter.

9. The Tribunal was of the view in 2014 that a guardianship order was necessary. Mrs BDN is now four years older than she was then and there may be other matters that require decisions to be made. In this respect:

1. The Public Guardian and the NSWTG had experienced difficulty in contacting Mrs BDN, which indicates that the lines of communication with her are restricted even if others are not attempting to limit her contact with family members.

2. The NSWTG was of the view that there was merit in having Mrs BDN seen by an authorised visitor which could result in a need to make decisions about services.

3. Taking into account the matters raised in the report of the NSWTG dated 18 May 2017, Mrs BDN’s accommodation was a live issue at the time of the hearing.

10. Mrs BDN had said that the matters would be difficult to resolve because of “all the worries” that she (presumably the applicant) had given to Mr MPN. Mrs TFX expressed the hope that if her grandmother was properly informed about the matters that resulted in her bringing the initial application, their relationship might be restored.

103. As detailed above, following a direction made by the Tribunal when the matter was adjourned on 18 May 2017, a version of the Reasons for Decision of the Tribunal for the order made on 27 May 2014 was prepared in the Italian language and was provided to Mrs BDN as well as read to her by a translator over Skype.

104. As detailed above, on behalf of Mrs TFX, Mr Gayler submitted that the reading of the translation over Skype and without Mrs TFX being present was not in accordance with the Tribunal’s directions and was not sufficient to amount to the proposed reading of the translated document and he sought an adjournment of the hearing so that the document could be re-read to Mrs BDN.

105. In respect of the submissions regarding the regarding the reading of the translated material, The Tribunal concluded, in effect, that there was no evidence that reading the material by Skype was less effective than an alternative mode of delivery and also refused the application for an adjournment to enable to the re-reading of the material.

106. Mr Gayler submitted on behalf of Mrs TFX that Mrs BDN’s responses when asked what she had understood from the reading of the redacted Reasons for Decision indicate that she did not properly understand what the document had said.

Evidence of and Submissions on behalf of (the late) Mr MPN and Mrs OAE

107. Oral and written evidence and submissions by the late-Mr MPN and Mrs OAE were to the following effect:

1. In respect of suggestions that Mrs BDN’s legal representative might have been influenced by Mr MPN, Mr MPN stated that Mrs BDN’s solicitors had acted for him for many years prior to 2013 but Ms O’Mahony had never represented him. He had never attended a legal conference between Mrs BDN and Walsh & Blair and was aware that his son, Mr EJN, took Mrs BDN to her solicitor appointments.

2. When it made the initial order the Tribunal was satisfied that there was no need for a guardian to make decisions for Mrs BDN about her accommodation, health care or medical and dental treatment.

3. No complaint has been made to the effect that Mrs BDN’s welfare is neglected. There is no current need to appoint a guardian as Mrs BDN has made an enduring guardianship appointment. The appointment was of Mr MPN as the guardian and of Mrs OAE, Mr EJN, and Mr EWN as the substitute guardians. Mrs BDN’s enduring guardians are able to undertake all that is necessary to ensure her continued welfare and ability til vie independently.

4. The Tribunal should take into account the totality of litigation over recent years commencing in 2013 when Mrs BDN was aged 97 and continuing now that she has attained the age of 100 and the effect of that litigation on Mrs BDN.

5. The hearings have been oppressive to Mr MPN and Mrs OAE. They have not been able to be dealt with and brought to finality expeditiously, inexpensively, and justly and there has been a high-level of antagonism towards the late-Mr MPN.

6. The referral to the relationship support services provider was delayed because Mrs BDN was hospitalised early in December 2014 and because of the holidays that followed her discharge. In February 2014, Mr MPN, Mrs OAE, Mr EJN, and Mr EWN took Mrs BDN to see two counsellors from the relationship support services provider but Mrs BDN chose not to proceed with any mediation.

7. Mr MPN had not failed to cooperate with the Public Guardian. He had cooperated with the NSWTG and had been available to the Public Guardian. He had been aware of the Public Guardian contacting Mrs OAE on one occasion only.

8. Mrs OAE has no desire to isolate Mrs BDN from others and Mrs BDN is able to use a telephone herself and does so to telephone family members.

9. If the Public Guardian were re-appointed to make decisions about Mrs BDN’s access to others, it is not likely that Mrs BDN would change her views about what she wants or whom she wants to see.

10. There is no issue about Mrs BDN’s lack of access to others. Mr MPN used [to] ring her three times a day and now Mrs OAE telephones her three times a day, at breakfast and lunchtime, and at 6:00pm. Mrs BDN has a visit from her brother on Thursday afternoon and she is also visited by nuns.

11. Mrs BDN is fit and able and does not require 24-hour supervision. She sees her doctor regularly and there is no need for a substitute decision maker regarding her health care or her medical and dental treatment.

12. According to the evidence of Mr Graeme Smith, a Public Guardian would only visit Mrs BDN three times per year. The Guardian would need to access her using her network of supports and these are available without the intervention of the Public Guardian.

13. In respect of the principles set out in s 4 of the Guardianship Act:

1. The guardianship order made by the Tribunal in May 2014 had not improved or benefitted Mrs BDN’s quality of life or well- being.

2. It would not be in the best interests of Mrs BDN for a Public Guardian to be appointed as such a person would not know Mrs BDN, would not speak her language and is likely to have difficulty contacting her as was described by Sean Hosking.

3. Mrs BDN should be afforded freedom of choice and her freedom of action should be limited as little as possible. She indicated her choice regarding guardianship by making enduring guardianship appointments in 2006 and again in 2015.

4. Mrs BDN lives a normal life in the community and is assisted by her enduring guardians.

5. Mrs BDN’s views as expressed at each hearing of the Tribunal have been that she wanted Mr MPN and his family to make decisions for her.

6. In respect of the maintenance of family relationships, there is no evidence that Mrs TFX or her family have made attempts to have contact with Mrs BDN, other than by way of applications to the Tribunal. There is nothing stopping Mrs TFX from visiting Mrs BDN.

Evidence of and Submissions on behalf of Mrs BDN

108. The following matters were put by, for and on behalf of Mrs BDN

1. In an affidavit sworn on 10 April 2017 Mrs BDN states that:

1. Since the commencement of the proceedings she has had trouble sleeping and has been under a lot of stress.

2. She has continually said that she wants these matters finished.

3. She is aware of the suggestions that she does not understand the proceedings, however, she does understand the proceedings.

4. She is aware that the Tribunal found that her son had not managed her affairs properly and does not agree. She has never had an issue with the way he managed her affairs.

5. In respect of Mrs TFX, she used words to the following effect:

my position has not changed since my 2015 Statements. I still do not want anything to do with her after being put through almost four years of litigation

If a Public Guardian was appointed again I will still have nothing to do with my granddaughter as I would tell them that I want nothing to do with granddaughter.

My granddaughter has upset me greatly by bringing all these applications and

I just want to be left alone.

2. On behalf of Mrs BDN, Ms O’Mahony provided a copy of a letter dated 26 May 2015 addressed to her from the relationship support services provider which states that:

On the 2nd February 2015 [Mrs BDN] attended our offices to participate in a pre-mediation assessment with the support of the Telephone Interpreter Service. The assessment was terminated shortly after it commenced as [Mrs BDN] appeared to become quite upset and indicated that she did not want to do mediation.

3. During the hearing when asked if she attends her solicitor by herself, Mrs BDN said, in effect, that she is accompanied by Mrs OAE because of her poor understanding of English. Mrs OAE agreed that she drives Mrs BDN to those appointments but denied that she attends the interviews. Ms O’Mahony said that she interviews Mrs BDN alone with the assistance of a telephone interpreter.

4. Ms O’Mahony submitted on behalf of Mrs BDN that:

1. When the Tribunal appointed the Public Guardian in 2014 it was seeking to facilitate reconciliation between Mrs BDN and Mrs TFX and her family. However, the order and the hearings have strained the relationship. Mrs BDN does not want to participate in mediation or to reconcile with Mrs TFX.

2. In an affidavit dated 5 June 2015, Mrs BDN states that if the Public Guardian was appointed, she would say that she has had enough” and did not want to know more about the matter “including any mediation with my granddaughter”. Mrs BDN reaffirmed this view in the affidavit sworn on 10 April 2017.

3. If Mrs BDN does not wish to reconcile with Mrs TFX, that is her decision. An order seeking to bring about a reconciliation has the effect of attempting to restrict her freedoms of action and freedom of decision.

4. Mrs BDN and Mrs TFX have not had a relationship for some years and therefore there is no relationship to be preserved.

5. The Tribunal should place weight on the views of the Public Guardian as expressed at the review hearing in 2014, which were to the effect that a family dispute or disagreement was not an appropriate matter for their involvement.

6. Mrs BDN’s view as expressed on a number of occasions has been to the effect that she does not want a guardian appointed. In particular:

1. The Reasons for Decision of the Tribunal for the decision on 27 May 2014 state that Mrs BDN “expressed the strong view, on several occasions, that she did not want a guardianship order…and wanted things to continue as they had”.

2. The transcript of the proceedings held on 21 November 2014 indicates that Mrs BDN said, “I want this to end because I’m tired of it. I’m the boss…This has been going on for 19 months and for 19 months they have never asked about me or called”.

3. In a statutory declaration dated 23 March 2015, Mrs BDN said “I do not want people apart from my son and daughter in law looking after me and making decisions for me. I do not want someone I have never met taking (sic) decisions for me…”.

7. Mrs BDN has expressed her stress, agitation, and anxiety as result of the proceedings and it is in her best interests for the guardianship order to lapse so that she can be left alone, as she has asked.

8. It is not in the best interests of a 100-year-old person to experience stress resulting from the appointment of a Public Guardian against her wishes.

9. There is no need to appoint a guardian in respect of Mrs BDN’s accommodation, health care or medical treatment as she has appointed enduring guardians should she require a substitute decision maker regarding those matters.

10. Whilst the report of the NSWTG dated 18 May 2017 indicated that Mrs BDN could have a liquidity problem that might necessitate dealings with her home, the most recent report did not raise this as an issue and noted that discussions were to take place with Mr EWN and Mr EJN in respect of their offer to assist with any liquidity problem faced by Mrs BDN.

11. Whilst it was suggested that a guardian might be appointed to explain matters to Mrs BDN, she has been to each of the hearings, with an interpreter present and has had legal representation at proceedings. It is submitted on behalf of Mrs BDN that she does understand the issues but does not accept the concerns raised by Mrs TFX nor accept the findings in relation to Mr MPN’s management of her financial affairs. Mrs BDN is entitled to her own view on these matters and it would be against public policy if a guardian were appointed to ‘make’ her accept the views of Mrs TFX or the findings of the Tribunal regarding the later Mr MPN.

12. In any case, Mrs BDN had said during the current hearing that if Mrs TFX knocked on the door she would answer the knock. There was no need for a substitute decision maker to make decisions about Mrs BDN’s access to others.

Conclusion of the Tribunal

Mrs BDN’s understanding of the matters that resulted in the initial orders

109. In respect of Mrs BDN’s current level of understanding of the matters that resulted in the initiation of the proceedings and the decision of the Tribunal made on 27 May 2014:

1. It was submitted on behalf of Mrs TFX that Mrs BDN has not been provided with independent legal advice due to an historical connection between her legal representatives and Mr MPN and the role played by the family of Mr MPN in communicating between Mrs BDN and her lawyers. In respect of these submissions:

1. The Tribunal accepts the evidence that Ms O’Mahony has never acted for Mr MPN, though Walsh & Blair have done so. The Tribunal is of the view that there is insufficient evidence to support the submission that Mrs BDN’s legal representative is compromised.

2. The Tribunal notes conflicting evidence between Mrs OAE and Mrs BDN regarding the former’s attendance at conferences with Ms O’Mahony, and Ms O’Mahony’s statement that she sees Mrs BDN alone with the help of a telephone interpreter. The Tribunal reaches no conclusions on this matter, but is of the view that it would not be unusual for a non-English speaker of Mrs BDN’s age to be accompanied by a family member to a legal conference and draws no inferences from this possibility.

3. The Tribunal accepts Ms O’Mahony’s evidence that she explained to Mrs BDN, in summary form, the reasons for the decision of the Tribunal in May 2014.

2. As indicated in the section of these Reasons dealing with Mrs BDN’s capacity, taking into account the totality of Mrs BDN’s comments, the Tribunal is of the view that Mrs BDN has been brought to general understanding of the nature of the matters raised by Mrs TFX even though she has not demonstrated a thorough understanding of all of the matters.

3. Mrs BDN continues to refuse to accept the adverse findings against Mr MPN. As noted in the section of these Reasons dealing with Mrs BDN’s capacity, the Tribunal is not able to reach a conclusion about the cause of Mrs BDN’s stance on this matter. It has been submitted on behalf of Mrs TFX that the family of Mr MPN has influenced Mrs BDN in her views. The Tribunal accepts that the family of Mr MPN has close contact with Mrs BDN and it is likely that the matters raised against the family of Mr MPN have been discussed. However, Mrs BDN has now been given an opportunity to hear alternative views.

4. Mrs BDN is now 100 years old and Mr MPN, to whom she has remained steadfastly loyal, is now dead. Mrs BDN is entitled to her views.

5. In any case, the Tribunal has no evidence that reiteration of the matters will increase Mrs BDN’s understanding of the detail of the allegations against the late-Mr MPN and his family, or that it would be likely to change her view about those matters.

6. The Tribunal is not satisfied that it is necessary to appoint a guardian to make a decision about facilitating processes by which these matters can again be brought Mrs BDN’s attention.

7. Mrs BDN’s evidence was to the effect that she does not want external service providers involved in her life. Taking into account her views on that matter, her strongly held loyalty to Mr MPN and her previous exposure to the translated redacted Reasons for Decision the Tribunal is not satisfied that it is necessary, or in her best interests, to appoint a guardian to make a decision about services such as a financial counsellor to explain her financial situation.

8. Further, given Mrs BDN’s strongly expressed views about external intervention and her loyalty to Mr MPN the Tribunal is of the view that repeated attempts to bring her to full understanding of her the historical financial matters could be distressing to her and would not be conducive to her emotional welfare.

9. Mrs BDN’s affairs are managed by the NSWTG. Whilst the report from the NSWTG dated 18 May 2017 indicated that it might have been necessary to deal with Mrs BDN’s home to provide her with sufficient liquid funds, the report from the NSWTG dated 14 September 2017 indicates that Mrs BDN has sufficient liquid funds for two years and that discussions were to be had with Mr EWN and Mr EJN regarding any liquidity problem. Whilst the Tribunal is of the view that generally it is in the best interests of a person to understand his or her financial affairs, in the case of Mrs BDN, taking into account her age and the matters canvassed in the preceding sub- paragraphs, as well as the fact that her affairs are being managed on her behalf, the Tribunal is not satisfied that her best interests in this respect are such as to outweigh the likely adverse effect on her emotional welfare of attempts to impose a financial counsellor or similar service provider on her.

Mrs BDN’s access to others

110. The Tribunal is satisfied on the evidence that Mrs BDN does not lack access to others in the community and that she is visited by her brother and members of the family of Mr MPN and is provided with social and community contacts through them.

111. The Reasons for Decision of the Tribunal that made the order in May 2014 refer to the belief of the Tribunal on that occasion that Mrs BDN did not understand certain important matters regarding her finances and that this influenced her thinking about Mrs TFX’s family and the applications then before the Tribunal.

112. Mrs TFX has expressed the view that nothing has changed in respect of her relationship with Mrs BDN since the order was made in 2014 and has expressed the a hope that if her grandmother was properly informed about the matters that resulted in her bringing the initial application, their relationship might be restored.

113. The Tribunal was satisfied that it would generally be in the best interests of Mrs BDN to have a relationship with the family of her late daughter, being Mrs TFX and her family, as well as the family of her late-son, if that relationship could be resumed without undue stress to Mrs BDN.

114. When the Tribunal made the guardianship order in May 2014 the appointment of the Public Guardian with functions of access, advocacy, and services was made, in part, to promote the reconciliation of Mrs BDN’s relationship with Mrs TFX and her family. The Public Guardian arranged for the involvement of the relationship support services provider, but there was no associated attempt under the order to have matters that resulted in bringing the initial application explained to Mrs BDN.

110. The Tribunal is of the view that the matter of access involves issues around Mrs BDN’s understanding of the matters adverse to Mr MPN and his family as well as matters related to Mrs BDN’s current feelings about Mrs TFX and her family.

111. In respect of those access issues related to Mrs BDN’s understanding of the issues, taking into account the matters canvassed previously in these Reasons, the Tribunal reaches the following conclusions:

1. As has been indicated in these Reasons, it was agreed by the parties that a jointly formulated version of the reasons for the original decision, including the Tribunal’s views about the matters alleged against Mr MPN, be prepared and provided to and read to and by Mrs BDN.

2. Whilst submissions were made on behalf of Mrs TFX that the circumstances of the reading of the document were inadequate, as set out in the section of these Reasons dealing with the reading of the document, the Tribunal is satisfied that a reasonable effort has been made to apprise Mrs BDN of the matters addressed in the May 2014 decision.

3. Taking into account the totality of her comments regarding these matters, the Tribunal is satisfied that Mrs BDN has a general understanding about those matters but she has not demonstrated that she has a detailed understanding of the specific matters. She maintains a positive view about Mr MPN and his family and their actions and a negative view about the bringing of the applications.

4. The Tribunal is not able to reach a conclusion as to why Mrs BDN persists in her maintaining her position regarding Mr MPN. Whilst it has been asserted on behalf of Mrs TFX that Mrs BDN’s position on this matter results from her not being provided with the facts, the Tribunal is not satisfied that her position is one that could be modified by the repeated presentation of factual material or views of others as opposed to a position resulting from her emotional attachment to Mr MPN and his family.

5. An appointed guardian could make a decision about the advisability of pursuing this matter. However, the evidence of the Public Guardian is to the effect that under the previous order the Public Guardian was unsuccessful in gaining access to Mrs BDN and that if reappointed, visits by the Public Guardian to Regional NSW are likely to be only on a quarterly basis and if Mrs BDN was not seen on the day of the visit it is unlikely that an alternative arrangement could be implemented. The Public Guardian was also of the view that Mrs BDN was opposed to the intervention of a government bureaucrat into her lifestyle. During the hearing Mrs BDN repeatedly opposed the involvement of the “the government” in her life.

6. The Tribunal is of the view that taking into account Mrs BDN’s strong opposition to the involvement of a government agency and to the renewal of an order, and the experience of the Public Guardian, a guardian would be unlikely to be in a position to adequately assess the circumstances relating to her views about Mr MPN and his family as those views affect her relationship with Mrs TFX to evaluate and implement strategies to address those matters.

7. The Tribunal is also of the view that it is more likely than not that continued attempts to have Mrs BDN reach an objective appreciation of the matters that resulted in the application is not conducive to her emotional welfare taking into account her age, the closeness of her relationship with the late-Mr MPN, the length of time over which she has held her views, the recency of the death of the late-Mr MPN, the length of time over which these matters have been subject to hearings and the stress that she and her legal representative have indicated that she is experiencing as a result of the hearings and ongoing issues associate with the hearings.

8. The Tribunal is satisfied that Mrs BDN has been provided with a reasonable opportunity to be apprised of the reasons for bringing the initial application, and of the decision of the Tribunal in May 2014. As outlined above, the Tribunal is not satisfied that repeated attempts to bring her to a better understanding of those matters are warranted or would be in her best interests or conducive to her emotional welfare. Nor is the Tribunal satisfied that these are matters that a guardian, and in particular the Public Guardian, would be in position to reassess over the period of a guardianship order. Having reached these conclusions, the Tribunal is of the view that it is not in keeping with the principles set out in s 4 of the Guardianship Act to pursue attempts to have Mrs BDN change her position on these matters.

117. Taking into account the conclusions outlined in the preceding sub-paragraphs, the Tribunal is not satisfied that there is a need to appoint a guardian to make decisions around increased attempts to apprise Mrs BDN of the matters that resulted in her bringing the initial application or that to do so would increase the possibility of a resumption of the relationship between Mrs BDN and the family of Mrs GBE.

118. In respect of those access issues related to Mrs BDN’s current feelings about contact with the Mrs TFX and her family, the Tribunal reaches the following conclusions:

1. Taking into account the totality of her comments, the Tribunal is satisfied that to the extent that Mrs BDN has expressed her disinclination to resume relationships with Mrs TFX and her family, Mrs BDN’s comments indicate that as well as her views about the bringing of the matters before the Tribunal, she is also resisting the reconciliation of her relationship with Mrs TFX and her family because they have not maintained contact with her since the commencement of the proceedings. The Tribunal does not dismiss Mrs TFX’s explanations for the lack of contact, but is of the view that to the extent that this matter is affecting Mrs BDN’s stance, it is not a situation for which resolution requires the appointment of a guardian. In this respect:

1. Whilst at times Mrs BDN expressed a disinclination to have contact with Mrs TFX, she also said words to the effect that if Mrs TFX knocked on her door, she would answer the door and speak to her, though their relationship could never be the same as before because of the effect of the Tribunal proceedings.

2. There is no objective barrier to Mrs TFX and her family visiting Mrs BDN.

3. As is indicated in the reports and evidence of the Public Guardian, a Public Guardian would not make, or attempt to enforce access arrangements on, Mrs BDN if she were opposed to the arrangement.

4. An attempt to facilitate contact using mediation has been unsuccessful and the Tribunal accepts the view of the independent relationship support services provider that Mrs BDN is not suited to mediation around this matter. Since that decision was made there have been ongoing Tribunal hearings about which Mrs BDN has expressed opposition and for which, rightly or wrongly, she blames Mrs TFX.

5. Mrs BDN has expressed strong opposition to the involvement of any government body and is likely to view any such appointment in a negative light. To the extent that Mrs BDN is willing to have contact with Mrs TFX, that can be achieved without the involvement of the Public Guardian.

119. The Tribunal is satisfied that issues pertaining the relationship between Mrs BDN and Mrs TFX and her family are different now from when the order was made, in particular because attempts to remedy the relationship using mediation and the independent translation and reading of the redacted Reasons for Decision have failed to achieve reconciliation.

120. When the initial order was made in May 2014 the relationship breakdown between Mrs BDN and Mrs TFX and her family was relatively recent. However, a number of years have passed with very little contact between the family members and Mrs BDN’s repeated comments were to the effect that she resented the lack of contact attempted by Mrs TFX and her family. The Tribunal is of the view that the appointment of a guardian with an access function would not address this issue.

121. As indicated by the Public Guardian, a decision made to facilitate access by others to Mrs BDN would only be made with the support of Mrs BDN. If Mrs BDN were willing to have contact with Mrs TFX and her family, there would be no need for a guardian to make an access decision.

122. The Tribunal accepts the evidence given during the hearing that others, such as Mrs BDN’s brother, access her at her home and that she uses her telephone to contact people. There appears to be no bar to others accessing Mrs BDN.

123. Taking into account the matters raised in the preceding paragraphs, the Tribunal is not satisfied that appointing a guardian is necessary to facilitate access to Mrs BDN, including access by Mrs TFX and her family.

Accommodation

124. In submissions on behalf of Mrs TFX, Mr Gayler submitted that the report of the NSWTG in May 2017 raises the prospect of a need for an accommodation decision to be made for Mrs BDN. In respect of this matter:

1. The report of the NSWTG dated 18 May 2017 suggested that it might be necessary to deal with Mrs BDN’s house or the home units in which she has shared ownership in order to provide her with sufficient liquid funds. However, the report dated 14 September 2017 establishes that Mrs BDN has sufficient funds for two years and that there are contingency plans if she needs more funds. The Tribunal is of the view that the more recent report does not support the submission that there is a need for a guardian to make an accommodation decision due to Mrs BDN’s lack of funds.

2. The NSWTG has proposed appointing an authorised visitor for Mrs BDN. However, the Tribunal is of the view that the possible future appointment of an authorised visitor, and the possibility of recommendations being made by that person, are not sufficient reasons to conclude that there is a need to appoint a guardian with an accommodation function.

Other Services

125. The order made on 27 May 2014 appointed the Public Guardian to make decisions about Mrs BDN’s services. As canvassed above, these services included the possible appointment of a financial counsellor or advisor to explain Mrs BDN’s financial position to her and mediation services to assist her to resume her relationship with Mrs TFX and her family. The Tribunal has dealt with those matters in preceding paragraphs of its Conclusions.

126. On behalf of Mrs TFX, Mr Gayler made submissions to the effect that there is a general difficulty for others contacting Mrs BDN, as evidenced by difficulties experienced by both the NSWTG and the Public Guardian, and that there was a need to appoint a guardian to put in place measures to assist in this matter. However, as indicated by the Public Guardian and by Mrs BDN’s evidence to the Tribunal, Mrs BDN is opposed to the involvement of any government agency in her affairs. Any service agency would need to arrange access to Mrs BDN through her support network and the Tribunal is satisfied that the support network is able to make arrangements for her services.

127. Mr Gayler submitted on behalf of Mrs TFX that the report of the authorised visitor might reveal a need for additional services. However, the Tribunal is not satisfied that the possible appointment of an authorised visitor and the possible making of suggestions by the visitor about services is a sufficient basis on which to appoint a guardian to make services decisions for Mrs BDN.

128. The evidence of the late-Mr MPN and of Mrs OAE that Mrs BDN receives services on a formal and informal basis and family and community members are in frequent contact with her was not challenged and the Tribunal accepts that evidence. Taking into account these matters the Tribunal is satisfied that there is no need to appoint a guardian to make decisions about Mrs BDN’s services.

Health Care and Medical and Dental decisions

129. There was no evidence and no submission to the effect that Mrs BDN required an alternative decision maker regarding her health care or her medical and dental treatment.

130. Mrs BDN and Mrs OAE indicated that the latter takes Mrs BDN to visits with her doctor. This evidence was not challenged. Mrs OAE is appointed as substitute enduring guardian under an appointment of which the enduring guardian is now deceased. The Tribunal is satisfied that in view of this appointment, and the lack of any evidence of concerns about Mrs BDN’s health and medical affairs, it is not necessary to appoint a guardian to provide any necessary substitute consents to medical and dental treatment. The Tribunal notes that there is a foreshadowed application to review the enduring guardianship appointment. If necessary the role of substitute medical consent can be reviewed at the hearing of that application.

Advocacy

131. The order made on 27 May 2014 appointed the Public Guardian to advocate for Mrs BDN, and in particular regarding the relationships between the family of Mrs GBE and the family of Mr MPN. Issues about family relationships have been dealt with above and as indicated the Tribunal is of the view that here is no need for a guardian to intervene in respect of those relationships. As indicated by the evidence of the Public Guardian, any attempts to facilitate Mrs BDN’s access to others would only be made by the Public Guardian in accordance with her wishes. Taking these matters into account, the Tribunal is not satisfied that advocacy on behalf of Mrs BDN by a guardian would enhance the likelihood of Mrs BDN’s reconciliation with Mrs TFX and her family.

132. There was no other evidence before the Tribunal of the need for Mrs BDN to be appointed an advocate and no advocacy was requested of the Public Guardian during the currency of the order being reviewed.

133. In respect of any advocacy required regarding her financial affairs, Mrs BDN remains subject to a financial management order and her affairs are managed by the NSWTG. Therefore, the Tribunal is satisfied that there is no need to appoint a guardian to advocate on behalf of Mrs BDN regarding her financial affairs.

The order of the Tribunal

134. Taking into account the conclusions detailed in the preceding sections of these Reasons, the Tribunal is satisfied that there are no decisions that are required for Mrs BDN that require the appointment of a substitute decision maker. Therefore the Tribunal was of the view that the guardianship order made on 27 May 2014 should be allowed to lapse and ordered accordingly.

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Amendment – s 63, Civil and Administrative Tribunal Act 2013 (NSW)

2 July 2018

Paragraph 62, line 6 is amended by the insertion of the word “not” so that the phrase reads “it was not conducive …”

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 06 July 2018