BDO v Public Guardian

[2015] NSWCATAD 152

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	BDO v Public Guardian [2015] NSWCATAD 152
Hearing dates:	28 March 2014; 2, 4, 8, 9, 11, 18, 22, 29, 30 July 2014; 3, 4, 5, 6, 10, 11, 12, 13, 17, 18, 19, 20 February 2015
Decision date:	17 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision of the Public Guardian that the son be accommodated in the USA under the care of his mother and his stepfather is set aside.  In substitution for this decision, the Tribunal orders that the son be accommodated in Australia in a purpose built home to include self-contained quarters for the father, with a separate entrance, and self-contained quarters for the mother, with a separate entrance. The Tribunal further orders that services for the son be provided by an external care agency and include a care co-ordinator, who is unrelated to the son, to liaise with the mother and the father.
Catchwords:	GUARDIANSHIP - Review of decision as to accommodation - Application of principles in s 4 of Guardianship Act 1987 – Financial viability of proposals – Welfare and interests of the person under guardianship - Role of the administrator in merits review proceedings.
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Guardianship Regulations 2005
Cases Cited:	Commissioner of Police, NSW Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24 Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1 Quinn v Minister of Young Community Services (1986) 5 NSWLR 716 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13;
Category:	Principal judgment
Parties:	BDO (Father of person under guardianship) (Applicant) CBY (Mother of person under guardianship) (Joined party) Public Guardian (Respondent) B Ramjan (Guardian Ad Litem)
Representation:	Counsel: G Jauncey (Applicant) G Moore (Respondent) M Higgins (for the Guardian Ad Litem)   Solicitors: Ellie Rahme & Associates (Applicant) Crown Solicitors Office (Respondent) Rowley & Associates (Guardian Ad Litem) CBY (Joined party in person)
File Number(s):	133374
Publication restriction:	Section 126 of the Administrative Decisions Tribunal Act 1997 applies.

Reasons for decision

Introduction

1. This is a case about a young, severely disabled man and where he should be accommodated. In these reasons, I will refer to this young man, who is under the guardianship of the Public Guardian as ‘the son.’ Currently, the son is residing in a residential care facility (‘the care facility’) in NSW. In 2013, a decision was made by the Public Guardian (and confirmed on internal review) that the son should instead be accommodated with his mother (‘the mother’) in the United States of America (‘USA’). The issue in these proceedings is whether this decision is the correct and preferable decision. The man’s father (‘the father’), who is the applicant in this case, is of the view that the son should live with him in Sydney. There was no objection to the mother’s application to be joined as a party in these proceedings. Subsequently, a Guardian Ad Litem, Ms Ramjan, was appointed to represent the son’s interests.

Relevant legislation and jurisdiction of this Tribunal

2. The father applied for review of the Public Guardian’s decision to the Administrative Decisions Tribunal (NSW) on 17 December 2013. The Administrative Decisions Tribunal was abolished when this tribunal, the NSW Civil and Administrative Tribunal (‘NCAT’) was established on 1 January 2014. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 No 2, these proceedings are now proceedings before the NSW Civil and Administrative Tribunal.

3. For this purpose and under cl 7(3), NCAT has and may exercise all the functions which the Administrative Decisions Tribunal previously had. The applicable legislation is that which would have applied if the NCAT legislation had not been enacted. Consequently, the Administrative Decisions Tribunal Act 1997 as in force at 31 December 2013 is applicable to this matter.

4. Section 80A of the Guardianship Act 1987 ('the Guardianship Act') provides that an application may be made to this Tribunal (and previously, to the Administrative Decisions Tribunal) for a review of a decision of the Public Guardian that is made in connection with the exercise of the Public Guardian's functions under the Guardianship Act as a guardian, and is of a class of decision prescribed by the Regulations.

5. Regulation 17 of the Guardianship Regulations 2005 provides that all decisions of the Public Guardian made in connection with the exercise of its functions are prescribed for the purposes of section 80A of the Guardianship Act. Hence the decision made by the Public Guardian in this case is a decision in respect of which an application may be made for review to the Tribunal.

6. Applicants who may apply to the Tribunal under s80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision' (s80A(2)(d)).

7. The father is the person to whom the decision relates so he is able to make an application to the Tribunal.

8. In conducting the review, it is the role of this Tribunal to conduct a merits review to determine whether the Public Guardian's decision that the son be accommodated in the USA with his mother is the correct and preferable one having regard to the material before the Tribunal including any relevant factual material and any applicable written or unwritten law. (section 63 of the Administrative Decisions Tribunal Act 1997). In making its decision, the Tribunal is to have regard to the principles set out in section 4 of the Guardianship Act.

9. Section 4 of the Guardianship Act provides for the following eight principles which persons exercising functions under that Act must observe, Section 4 provides as follows:

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.

Non- publication of names

10. Pursuant to s126 of the Administrative Decisions Tribunal Act, there is a prohibition against publishing the names of certain persons to whom proceedings relate, if the proceedings are in relation to a reviewable decision made under the Guardianship Act 1987. Those persons include a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings. This is such a case.

11. In these reasons, I have not referred to a number of people by name. Rather than naming them, I have instead referred to them by reference to their relationships to each other.

Parties to this application for review

12. There are four parties to the application for review: the father, who is the applicant in the matter, the Public Guardian, who is the respondent, the mother, who was joined as a party, and Ms Ramjan, who was appointed as Guardian Ad Litem to represent the interests of the son.

Background

13. The father and the mother are the divorced parents of the son who was born in the USA and who is now 34 years old. After his parents' separation, the son was raised by his mother in the USA and had regular contact with his father who also lived in the USA before he later moved to Australia. In 1998, the son travelled to Australia, went back to the USA in 1999 and returned to Australia in 2000. Whilst living in Australia, the son suffered a severe traumatic brain injury after a work-related accident in 2002. As a result of the accident, the son has significant cognitive impairments and physical impairments, including spastic quadriplegia. He has a limited ability to communicate and requires 24 hour care.

14. In 2003, the father was appointed as the son’s guardian, with his mother as the alternative guardian. The father was also appointed as the son’s financial manager. In October 2003, the son was discharged from hospital into rented premises shared with his father. From 2003 to March 2008, Global Disability and Health Care Services Pty Ltd (‘Global’) provided care services for the son. In February 2008, the director of Global, Mr McDermott, gave a month’s notice of his decision to terminate the care arrangement.

15. Following lengthy court proceedings, in 2008, the son was awarded in excess of $15 million by way of damages. The assessment was made on the basis that the son had a life expectancy of 54 years.

16. In April 2008, Drake Medox Nursing Agency (‘Drake’) replaced Global as the care providers for the son and continued to provide care for the son until 8 August 2009 when the father set up his own care service (‘the father’s care service’) for the son. This service provided care to the son until the beginning of 2011.

17. The son’s guardianship order lapsed in July 2010. In December 2010, the mother applied for guardianship of her son. She also sought to review the father’s appointment as financial manager for the son. On 13 January 2011, the Public Guardian replaced the father and mother as the son’s guardian and the NSW Trustee and Guardian (‘NSWTAG’) replaced the father as financial manager for the son.

18. From January 2011, the Public Guardian engaged Global to provide care for the son who was still residing in rental accommodation with his father. In October 2011, the Public Guardian made a decision limiting the father’s access to the son while Global were caring for him and in January 2012, the Public Guardian made a decision to move the son to full-time accommodation in a residential care facility (‘the care facility’). Global continued to provide some weekend care for the son until April 2012.

19. On 15 August 2013, the Public Guardian decided that the son would be accommodated in the USA under the care of the mother. This decision was confirmed on internal review on 14 November 2013. This is the decision now under review, which was stayed on 20 December 2013.

Preliminary matters

20. As set out above, the mother made application to be joined as a party to these proceedings. There was no objection to her application. Given that the decision before me relates to whether or not her son should be accommodated with her, I was satisfied that her joinder was necessary to the determination of all matters in dispute in the proceedings, in accordance with sections 67(2)(d) and 67(4) of the Administrative Decisions Tribunal Act 1997. On this basis, I granted her application to be joined as a party to the proceedings.

21. Following submissions from the other parties to the proceedings, I appointed Ms Ramjan as Guardian Ad Litem to represent the interests of the son in accordance with section 71(4) of the Administrative Decisions Tribunal Act 1997. I found the appointment of a separate representative for the son to be essential because of the significant life-changing decision under consideration for the son where there is a disagreement between his parents as to the appropriateness of the decision.

22. A chronology of events, as agreed between the Public Guardian, the father and the mother was provided to the Tribunal as was a list of agreed issues.

23. Early in the proceedings, the father sought a ruling from the Tribunal that the Public Guardian’s role in the proceedings should be limited to advising the Tribunal as to its practices and procedures. The Public Guardian and the father each provided submissions in relation to this issue. The father submitted that as a party to the proceedings, the mother was a contradictor to the father’s case. On this basis, the father submitted that the Public Guardian’s role should be limited to advising the Tribunal as to its practices and procedures in accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.

24. In accordance with the decision of the President of the Tribunal, Wright J, and Senior Member Walker, in Commissioner of Police, NSW Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24, I found that the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 do not generally apply to merits review proceedings.

25. I did not find this case to be in the class of special or unusual case where the Hardiman principle should apply. It is the role of this Tribunal to make the correct and preferable decision on the basis of all the evidence available at the time of the review (section 63 of the Administrative Decisions Tribunal Act 1997). To make such a decision, I found that I would benefit from the assistance of the Public Guardian, who has an obligation to act as the model litigant in these proceedings. On this basis, I refused the application by the father to limit the role of the Public Guardian to advising me as to its practices and procedures. (see Commissioner of Police, NSW Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24)

Agreed issues

26. Early in the proceedings, and prior to the appointment of the Guardian Ad Litem, a list of agreed issues was provided to the Tribunal. The issues identified in the list are as follows:

• Identification of and depth of the son’s wishes;

• The weight that should be given to the son’s wishes;

• The financial viability of each parents’ proposal, and the extent to which each financial plan accords with the son’s best interests including sufficiently providing for the son’s quality of life;

• Whether the Public Guardian has the power to decide that the son be accommodated in a place outside of NSW;

• How and by whom the son’s funds would be managed if he lived in the USA in the state of Georgia including whether that management will accord with the son’s best interests and will provide for his quality of life;

• The nature, quality and extent of the son’s family relationships in Georgia and in the greater USA and Canada, including what support and companionship those family relationships might offer;

• The extent to which each parent has in the past and in recent times been able to liaise, in an appropriate manner, with nursing and other staff who care for the son;

• The impact, if any, of each parent’s behaviour with support staff had on past and current care arrangements;

• The impact, if any, that each parent’s behaviour is anticipated to have on the care arrangements proposed, and whether any risk to the son’s future care arrangements is acceptable;

• The extent to which each parent’s accommodation proposal is in the best interests of the son, with specific reference to each criterion set out in section 4 of the Guardianship Act; and

• Whether the son is fit to the travel to the USA.

Length of proceedings

27. The proceedings in this matter have been both lengthy and complex. There were four parties in a hearing that ran for 22 days and required attending to several interlocutory matters, hearing from seventeen witnesses and considering several volumes of material. The matter was adjourned to allow for the appointment of a Guardian Ad Litem and for an agreed list of issues and witnesses to be provided. Delays were caused by an initial failure to provide relevant material in answer to summonses issued by the Tribunal and by the consequential need to recall certain witnesses. There were some difficulties with the availability of witnesses including those overseas witnesses who were required to give their evidence by telephone. Given the complexity of the issues to be considered, it was important to keep continuity of representation. This required further adjournments to ensure the availability of all parties and their representatives.

RELEVANT EVIDENCE

28. There was a wealth of evidence put forward in this case, both in documentary form and as oral evidence by witnesses who attended the Tribunal either in person or by telephone.

29. The documentary evidence before me is contained in volumes I and II of those materials provided by the Public Guardian in accordance with s58 of the Administrative Decisions Tribunal Act (‘the section 58 materials’) and in exhibits marked 1 to 57.

30. Whilst I have considered all of this material, a summary of the relevant evidence contained in the material is set out below.

Section 58 materials

31. These documents include:

• the decision of the Public Guardian dated 15 August 2013 that the son be accommodated in the USA with his mother;

• the internal review of the decision dated 14 November 2013, which upheld the original decision that the son be accommodated in the USA with the mother. The summary of reasons for the decision states that:

The decision has been upheld because [the mother] has submitted a proposal that sustainably promotes [the son’s] health and welfare whilst according with his wishes to leave his current care facility and reside with her.

• Care plans for the son, including a care manual & instructions for carers prepared for the son by Access Brain Injury Services in September 2011;

• Medical reports for the son;

• Occupational therapy and communication access reports for the son;

• Guardianship orders made for the son;

• Letters written by the son prior to his accident;

• A final apprehended violence order dated 2 March 2012 made against the father for the protection of the mother;

• Correspondence from the father’s former wife in relation to discussions with the son prior to his accident;

• Correspondence by the father and mother in relation to the son’s care;

• Running notes and letters from care providers in relation to the son’s care;

• Financial reports for the son;

• 2013 Speech Pathology Yes/No Consistency Assessment Report prepared for the son, assessed by Angela Vass.

Exhibits

32. There are 57 exhibits in this matter and I have considered each of them in reaching my decision. Below is a summary of relevant aspects of several of these exhibits. Other exhibits are referred to during the summary of evidence provided by witnesses in these proceedings.

Supreme Court Proceedings (Exhibit 55)

33. In a 2008 decision by the Supreme Court of NSW, the son was awarded damages in excess of $15 million following an action against the son’s former employer and associated contractors. The father and mother were each awarded damages in excess of $200 000.

34. In his findings, the judge referred to medical reports for the father which assessed him as suffering Post-Traumatic Stress Disorder following his son’s accident. The father’s prognosis for recovery from Post-Traumatic Stress Disorder was said to be poor.

35. To avoid identification of the parties in these proceedings, rather than setting out the citation of the 2008 decision by the Supreme Court of NSW, I will simply refer to it as the Supreme Court decision of 2008.

Dolman Bateman opinion 19 June 2013 (Exhibit 7)

36. Ms Fiona Bateman is a forensic accountant. Upon request of the applicant, she provided an opinion on the budget provided to the Public Guardian by the mother in relation to her application for her son to live with her in the USA.

36. In her report, Ms Bateman queries the accuracy of the budget on the basis that it does not allow for any comforts or discretionary spending for the son, allows only $13.15 per day for meals, does not include medical costs, does not allow for accommodation costs apart from utility costs for $3900 or associated costs. She also expressed concern that the value of the Australian dollar may decrease thereby causing a reduction in the value of the son’s funds.

37. According to Ms Bateman

[The mother] has advised me at the Guardianship Tribunal in July 2012 that once [the son] is in the USA that she intends to apply to have his funds transferred to her, for her to control. It is of concern that she has previously been made a bankrupt and would not be able to perform this complex duty.

I believe the budget put forward by [the mother] is too simplistic and excludes many costs. I have concerns about its ability to cover [the son’s] actual needs and provide all the care that he requires.

Report by Baker & McKenzie regarding Special US Federal Income Tax Matters (Exhibit 44)

39. This report advises that as a US citizen and regardless of where he lives, the son is required to annually file federal income tax returns and pay US federal income tax on his worldwide income. Taxable income can be largely offset by medical expense deductions.

40. According to the report, although the US federal tax treatment should not change based on the son’s residence:

the superannuation fund provides an added layer of complexity because its tax treatment in the United States is not clear…Generally the superannuation fund may be treated as either a non-grantor trust or an employer funded pension plan.

Finally the state of Georgia does impose an income tax on its residents’ worldwide income at a rate of 6% which would not be applicable if [the son] remained in Australia. Similar to the federal income tax, the Georgia income tax can be largely offset by medical expense deductions. The Georgia state income tax should be a deductible expense in calculating [the son’s] U.S. federal income tax liability.

Recording and transcript of Ms Ramjan’s interview with the son on 3 June 2014 (Exhibits 28 & 29)

41. On 3 June 2014, Ms Ramjan had an interview with the son in which she asked him questions about where he wished to reside and with whom. To communicate with the son, Ms Ramjan used a combination of thumb signals and eye-blinking. Her interview was recorded and transcribed.

Tender bundle (Exhibit 46)

42. By agreement, a tender bundle was provided to the Tribunal containing material from the following people and organisations:

• Ramsay Health Care Australia;

• Access Brian Injury Services;

• Royal Rehab;

• Northern Sydney Local Health District;

• The Hills Private Hospital;

• Global Disability & Health Care Services;

• Lighthouse Health Group;

• Dr Helen Clarke;

• Public Guardian.

43. The bundle includes documents outlining allegations of inappropriate and aggressive behaviour by the father towards carers, the intimidation of new staff by the father and his partner and aggressive behaviour by the father’s partner towards the mother.

44. In a note by one of the son’s carers, she states that she was advised that:

If [the father] continues to be a pain they will either remove him or [the son] from the house. If [the son] goes to a facility it is not to be disclosed to [the mother] or [the father].

45. Complaints about the mother and her difficult management style are contained in an unsigned typewritten letter to the father by one of the son’s carers. The carer in question has denied writing the letter.

46. Running sheet entries list instances of difficulties experienced by Global carers in 2011 in dealing with both the mother and the father.

Immigration records (Exhibits 30, 35 & 36 )

47. Immigration records produced to the Tribunal include the son’s application for permanent residence in Australia and the mother’s application for permanent residence in Australia, which she subsequently withdrew.

Advice from NSWTAG: financial viability of proposals (Exhibits 1, 41 & 47)

48. Advice from the NSWTAG dated 8 May 2013 considers the viability of the father’s proposal that the son reside with him in Australia and calculates that in the case of the son renting a property, total annual expenses of $530 030 and in the case of the son purchasing a property, capital expenditure of $900 000.00. In each case, the NSWTAG advises that ‘depletion is not a concern’ and supports ‘both accommodation and care proposal including either leasing or buying a property as affordable.’

49. Further advice from the NSWTAG dated 8 May 2013 considers the proposal by the mother that the son reside with her in the USA. The advice allows for annual expenses of USD466 000 which are equivalent to AUD452,430 and a capital expenditure of USD736 500 which is equivalent to AUD715 000.

50. Based on the proposed budget and using the AUD/USD exchange rate at the time of calculation, the NSWTAG supported the proposed budget as affordable, whilst highlighting the following risks:

• It does not allow for any variation, discretionary or entertainment expenses other than $1800 per annum for Pay TV and $2400 per annum for clothing;

• It cannot be determined whether medical expenses included in the proposed budget will meet the client’s current and future needs;

• It does not consider currency risk;

• It does not consider the son’s tax position as a citizen residing in the USA.

Witnesses

The mother

51. The mother is an American citizen who lives in the USA. The son is her only child. She and the father divorced when the son was seven years old. She was granted custody of the son with the father spending alternate weekends and holidays with the son. She described a close relationship with her son and when she and her current husband married in 1999, the son spent the year living with them. She agreed that her son had later moved out of home but stated that he would return to the family home to do his washing. She denied having any significant arguments with her son in 1999 and 2000 and disputed the suggestion that her son did not get on with her husband. She was aware her son had applied for permanent residence in Australia prior to his accident but didn’t believe he had decided to make Australia his permanent home.

52. She described her continuous and substantial involvement in her son’s life following his accident. She agrees that her son remembers his pre-accident life well but disagrees that he has more problems remembering his post-accident life.

53. When the son lived with the father in rental premises between 2004 and 2011, the mother stayed at the house for periods ranging from three months to eight months. Following her son’s accident, she applied to become a permanent resident of Australia but was forced to withdraw her application when her son was placed in the care facility and she no longer had a place of residence in Australia. This, she had been advised, would have resulted in the refusal of her application.

54. Since her son has been living in the care facility, her stays in Australia have been shorter because she has to pay for private accommodation. Since her son has been in the care facility, she has noticed a major decrease in her son’s movements and ability to move in general. She describes the care facility as being more like a nursing home than a rehabilitation facility and describes her son’s care there as being inferior to the care she and the father had given him in the rental premises.

55. According to the mother, the care facility:

has programs in place..but nothing like the programs [the father] and I had in place..when he was under our care. [Our son] is capable of doing much more.

56. She agreed that Drake had provided good care to the son. She also agreed that the father had provided good care to the son whilst they were living in the rental premises and that she had no objections when the father decided to set up his own care company. She agreed it would be cheaper and was aware that the father would employ relatives as carers. As her visa does not provide her with working rights, the mother is not allowed to receive any payment for caring for her son.

57. She agreed that until the Public Guardian became involved in the son’s care, the father’s care company had provided excellent services for him. She was concerned, however, that the father had paid himself a salary: she doesn’t believe that family members should be paid to care for the son.

58. In her statement, the mother sets out details of her proposal to have her son accommodated with her and her husband in the USA, highlighting her intention to provide her son with stimulation, enjoyment and education.

59. The proposal allows for her son to be flown to the USA in a medical plane and spend two weeks in a rehabilitation facility to enable a plan to be made for his care. Pending the construction of a house for the son, which the mother estimates would take four to five months, the son would be accommodated in a transitional living centre. The mother and her husband would contribute to the construction of a house for the son which would then be owned by the three of them, in proportion to the individual contributions made to the purchase.

60. Her son has the following family members living in the United States: his maternal grandmother; an aunt, an uncle and a number of cousins. The extended family of the mother’s husband live near to the mother and her husband. The son’s brother (the elder son of the father) lives with his family in Canada. It is the mother’s wish that her son’s brother (‘the brother’) play a large role in his life. She has even discussed the brother becoming the primary carer should the mother and her husband predecease the son. She agreed that there had been no internet contact or no interaction between the brothers for at least five years. She also agreed up until the accident, there had been little contact between the brothers.

61. In oral evidence, she agreed that the ability of the brother to care for her son had not been tested, and that, despite his best will, he may not be capable of doing so. She agreed that her mother is over eighty and lives four to five hours’ drive away. She anticipated that her husband’s family would help with the son’s care.

62. In relation to the son’s financial situation should he relocate to the United States, the mother stated:

I am aware that all of [my son’s] medical expenses in the United States will be tax deductible. This will significantly reduce his taxable income..I am also investigating whether [the son] will be entitled to benefits for people with disabilities, including Medicaid and what private health insurance would cost.

63. She confirmed that she had been subject to bankruptcy proceedings due to her overdraft on credit and inability to make her credit card payments. She agreed that she had sought advice in relation to the possible transfer of the son’s money to the United States and the role of the conservator under the relevant state law. She denied an intention to apply to be her son’s financial manager.

64. In terms of her son’s care, she has the following concerns about the father:

• He is negative and controlling which made carers scared of him and led to the rental premises becoming a very stressful environment for the son;

• As the son’s financial manager, he failed to make good decisions in relation to the son’s care. It was for this reason the mother applied to have the father removed as the son’s financial manager;

• He refused to allow the mother’s husband to stay in the rental premises when he was in Australia and was verbally abusive to the mother;

• He threatened her in around December 2011 which resulted in an apprehended violence order being taken out against the father;

• He will only do things his way and doesn’t like to listen to other suggestions. For this reason, problems began to emerge when a case manager was appointed for the son.

65. In relation to the father’s family, she agreed that one of the son’s uncles had worked with him before the accident. She also agreed that the son’s paternal uncle (‘the uncle’) had worked as the son’s carer and would visit him after his accident. She agreed that the son’s cousin (‘the cousin’) would visit weekly between 2011 and 2012. She was unable to say whether the cousin had continued to make monthly trips to visit the son in the care facility. Whilst she used to get on well with the father’s family, she told the Tribunal that since she has applied to take the son home, she has been treated very badly.

66. This has extended to her treatment by the father’s partner, who had been employed as a carer for the son. The mother had been unhappy with her performance because she would fall asleep when rostered on for nightshift.

67. According to the mother, the father’s partner:

doesn’t like me being around. It’s a terrible feeling. I’ve done everything. I’m his mother. It was like I was an intruder.

David Paul Pollan

68. Mr Pollan is an attorney in Georgia, United States, who specialises in ageing and special needs law. In reports prepared for these proceedings, he considers the following issues:

• whether the son would be eligible for Medicare and/or Medicaid in the USA;

• whether the son would be eligible for private health insurance in the USA, particularly in light of his pre-existing conditions;

• whether the son would be eligible for social security benefits under US law;

• how hospitalisation and other costs would be funded if the son were living in Georgia, USA;

• the relevance of guardianship law and conservatorship law in Georgia, USA.

USA Medicare entitlement

69. In his written advice, Mr Pollan anticipated that the son:

will eventually have Medicare entitlement the sooner of either the death of his mother, father or step-father, or 24 months after either his mother, father or stepfather begin receiving either Social Security retirement or disability benefits on their individual benefit’s records.

70. In light of the son’s work history, Mr Pollan told the Tribunal that the son was unlikely to currently be insured for Medicare. He confirmed his advice that there is a possibility that if a parent, which may include a step-parent, is a recipient of a benefit, the child can also take that status. He was unsure whether the son would be eligible for Medicare on the basis of his step-father’s entitlement to social security. He was unsure whether any such entitlement would be lost should the mother and stepfather ever divorce. He confirmed that any entitlement to Medicare would be limited to providing the son with 100 days of rehabilitation.

USA Medicaid entitlement

71. Because the son is a citizen of the USA, Mr Pollan believes he would qualify for Medicaid and that he would be able to meet the level of care requirements for his participation in a Medicaid waiver program called the Independent Care Waiver (ICWP).

72. According to Mr Pollan:

If the son’s gross income is more than $2163 per month, a type of income trust called a ‘Qualified Income Trust’ (QIT) is available so that a portion of his gross income more than $2163 each month can be disregarded. For each month we seek Medicaid, we would transfer at least that portion of his gross income cap to the income trust account. In this way, he would meet the income eligibility requirements.

73. Under the state law of Georgia, a special needs trust could be established to enable a portion of the son’s gross income to be disregarded, thereby ensuring his eligibility for Medicare. Any monies left in the special needs trust at the time of the son’s death would be reimbursed to the state of Georgia, up to the amount of medical assistance paid out on his behalf for his long-term care. If the trust is fully depleted at the end of the son’s life, there is no payback to Georgia. After repayment to the state, the trust assets that remain are then payable to the remainder of the beneficiaries.

74. According to a fee schedule attached to Mr Pollan’s report, costs associated with the administration of a special needs trust would depend on the amount of the account asset value, with 1. 5% being charged on the first USD1 000 000 of the account asset value, 1.30% for the next USD1 000 000, 1% for the next USD3 000 000. The fee would be negotiable for accounts over USD5 000 000. An annual minimum fee of USD5000 would be charged to each account.

Eligibility for private insurance

75. With the passage and implementation of the US Affordable Care Act, which prohibits health insurance companies from discriminating on the basis of pre-existing conditions, it is Mr Pollan’s view that the son would be eligible for private health insurance in the USA. He could be enrolled during the next open enrolment period to enable his subsequent coverage.

76. It would be Mr Pollan’s advice that the son obtain private insurance to minimise the amount of money required to be reimbursed to the state of Georgia upon the death of the son.

Care in the event of hospitalisation

77. According to Mr Pollan, if the son were living at home in Georgia and needed to be urgently hospitalised, his costs would be paid by both private health insurance and Medicaid who, as the payer of last resort, would reimburse for any amounts not covered by private health insurance.

78. In oral evidence before the Tribunal, Mr Pollan advised that that he has some clients who require 24 hours per day care. It is his experience that this is not available in a community setting in Georgia but is limited to nursing home care or hospital care.

Eligibility for social security benefits

79. Mr Pollan did not think that the son would qualify for social security benefits on the basis of the stepfather’s benefits record because the son was not living with the stepfather or financially dependent upon him at the relevant time. If he were eligible for social security benefits on the basis of his stepfather’s benefits record, the benefits would terminate if his mother and the stepfather were to divorce.

80. Assuming the father were insured for retirement or disability benefits through his employment record, Mr Pollan expressed the opinion that the son may be eligible for dependent’s benefits if the father were entitled to receive benefits and the son were dependent on the father at the time his application is filed. As the son would be entitled to these benefits while resident in Australia, Mr Pollan advised the son to apply for dependant’s benefits immediately.

Guardianship & conservatorship law in Georgia, USA

81. A guardian is a person appointed by the court to make decisions, including consent to medical treatment, personal care and place of residence for their adult ward, being an adult who is unable to make important and responsible decisions as a result of an incapacity.

82. A conservator is the legal representative appointed by the Court to make financial decisions and administer the monies/property of the adult ward under the supervision and oversight of the court.

83. In oral evidence before the Tribunal, Mr Pollan stated that given the size of the son’s estate and the expenses involved in its management, it would be a mistake to appoint a conservator for his estate. A better option would be to set up a boutique trust to manage the son’s funds.

84. He agreed that the mother had spoken of her intention to apply for guardianship for her son. When asked whether the mother had also indicated an intention to apply for conservatorship, Mr Pollan stated that he didn't know many lawyers who would recommend conservators:

I don't remember discussing conservators over property, I probably suggested a limited conservator with the funds being put into a trust administered by a professional trustee, which would therefore eliminate the need for a conservateur…..I am sure I did discuss setting up of a trust, I am very sure of this".

85. The applicant asked Mr Pollan whether a judge would be likely to approve of a scheme whereby the mother and her husband would contribute to the cost of building a house for the son and take part of the property title, with the balance being held in the son’s name.

85. Mr Pollan replied that:

It depends whether the son has access to Medicaid. If there is a trust with Medicaid and the Social Security Administration and Georgia's Department of Community Health, then the purchase of the home would be reviewed. Any expenditure from a trust must be for the sole benefit of the trustee. This means the purchase could be defeated if it were not done for market price. If it were done through a conservateur, the judge would check that [the son’s] financial intents and interests had been protected."

87. In answer to the question whether a judge might allow an arrangement where the son pays for the accommodation while the mother and stepfather are living there, Mr Pollan said:

Sometimes parents are compensated as care givers and sometimes in lieu of payment they can get free rent.

Steven Yuhas

88. Mr Yuhas is a rehabilitation consultant with a USA based case management service that assists catastrophically injured patients. He was contacted by the mother to assist in the development of a medical care plan with treating physicians and a preliminary medical cost projection in anticipation of the son’s return to live in the United States.

89. A 2012 medical cost projection prepared by Mr Yuhas includes:

• care costs for medical specialists;

• medications;

• medical equipment and supplies;

• aids for independent function;

• health and strength maintenance;

• facility care at the proposed evaluation centre;

• facility care at the proposed rehabilitation hospital;

• transportation to the United States by medical aeroplane;

• home care; and

• handicap accessible van.

90. In oral evidence before the Tribunal, Mr Yuhas agreed that his cost projection did not include the cost of a ‘sitter’ with the son during his period at the evaluation centre where a treatment plan would be organised to prepare for the son’s transfer.

91. When asked whether such a treatment plan was simply re-inventing the wheel, given that the son had already been under medical care and assessment at his current care facility, Mr Yuhas stated that

to receive ongoing care, he needs to be re-evaluated and referrals are needed for the United States…It is an opportunity to see him and evaluate him for his needs.

Dr Stuart Browne

92. Dr Stuart Browne is a medical practitioner, specialising in rehabilitation, who has had regular involvement with the son since 2004. Dr Browne told the Tribunal that he had no concerns in relation to the level of care received by the son at the care facility although he agreed that since the son’s transfer, there had been more complaints about his care, including an incident of sunburn.

93. In relation to the son's current memory, he told the Tribunal that the son 'possibly has a greater awareness of day-to-day events. New memories are always the problem. Old memories are often retained.' He confirmed that 'old memories' are pre-injury memories which, as a general principle, are retained more than post-injury memories.

94. Dr Browne was reluctant to answer questions about the son's views on where he wished to be accommodated, stating that

I deliberately tried to avoid asking the question. I don't want to take sides and wish to have a relationship with both his mother and his father.

95. In relation to the son's wishes, he agreed that they were reasonably reliable for day-to-day issues, such as whether he felt hungry. He couldn't recall communicating with the son using an eye-blinking method, which is a method of communication he does not support. He agreed that the son's means of communication by thumb signals was reliable for day-to-day activities, taking into account his mood, which could be difficult to assess, and assuming he was not fatigued. He agreed that the son might not answer a question truthfully in order to stop further questions from being asked.

96. He agreed that both parents had given strong support to the son over the past ten years and were both strong advocates of their son. He had been advised of visits by the father’s family to the son at his current care facility and agreed that it was of benefit to the son to have a good relationship with his family. He thought it possible for the son to form new relationships without old memories. If the son had bad old memories, he thought it might be more difficult to establish good new relationships and might instead cause him distress.

97. He also stated that there were 'quite a few mumblings' about the father’s temper and his relationship with the son's carers. He agreed that the father had always demanded the highest care for the son, has high expertise in relation to the needs of the son's trained carers and demanded a high standard of skin care for the son. He agreed that the father became frustrated when the son’s needs were not met. He agreed that both parents are strong advocates for their son.

98. In a letter to Dr Bodil Broeng-Neilson dated 30 October 2012, Dr Browne writes as follows:

[The son’s] communication with his ‘thumbs up’ sign was inconsistent during my examination. He indicated he wanted to live with his mother in the USA, but similarly said he wanted to remain in Australia with his father. He said he preferred living in his previous place to his current accommodation. He denies pain and depression, although I do not feel he interacts as frequently as he did previously.

99. Dr Browne agreed that it was impossible for him to know if the son could understand the consequences of the words 'to live' or 'to go' to 'to see' when asked a question about his accommodation and living arrangements. When the son stated that he wished to live with his father, Dr Browne agreed that he didn’t know whether the son understood that this would mean not living with his mother. He agreed that he hadn't explored the extent to which the son understands what ‘living’ means. He agreed that he did not know how the son interpreted any of the symbols used by Ms Vass in her testing of the son to elicit his views of his accommodation and living arrangements. He is of the view that the son’s answers are more reliable with simple questions and agreed that the son put his thumbs up when asked whether he had had an argument with his step-father prior to leaving for Australia.

The brother

100. ‘The brother’ as he will be called in this decision is the son of the father and half-brother to the son, who is six years his junior. He was born in the USA and lives with his wife and three young children in Canada.

101. In his statement, he stated that his parents separated when he was very young ‘due to physical and verbal abuse between the two.’ He was fourteen years old when he first ‘came to know’ his father. At the time, his brother (the son) was eight years old. From that point he regularly spent time with his father, the mother and the son.

102. When the brother commenced university, he stopped communicating with the father. As a result, he stopped having contact with his brother. In 1996, he tried to locate his brother, without success.

103. The brother’s wife visited the son in 2002 after his accident and in 2006, the brother travelled to Australia to visit the son. He travelled to Australia again in 2008. In evidence before the Tribunal, he agreed that he did not have a relationship with his father between 1994 and 2006 and that prior to his brother’s accident, he probably hadn’t seen him since 1994. He agreed that he hadn’t kept in touch with his brother in the time between his visits to Australia in 2006 and 2008.

104. He confirmed that his father had told him that he had 'set up a scheme to look after [the son] and to profit from it.' He told the Tribunal that his father was trying to work out how to manage the carers as 'he needed a way to pay his brother if he was going to bring his brother into it.'

105. The father told him that he was setting up a care service to gain a source of income while caring for the son. When the brother returned to Australia in 2008, he found that his father was drinking to excess and could not co-operate with the son’s carers. Later, his father discussed moving the son to Thailand or Costa Rica. Later again, the father discussed bringing the son to live in the USA. According to the brother, the father agreed that the son’s final settling place should be in the USA - he just didn’t want the son to be with the mother.

106. He agreed that in 2010, his father had looked at properties with a view to relocating to the United States with the son. With this in mind, and as an incentive for the brother to move closer, his father had suggested that some of the son’s funds could be used for the business. He agreed that his father had begged him to look after the son but that he had said he couldn't because of his business. The father subsequently made plans to purchase a house in the USA but did not proceed with the sale. He described his father as having a drinking problem and suffering from depression.

107. The brother agreed that he had no expertise in dealing with the son’s needs although his wife has some limited expertise in the area. He told the Tribunal that the son needs to be near his mother and that it would be nice for [the son] to be near him. He confirmed that it is a 17 hour drive from where he lives to Georgia.

108. He spoke of the benefits of having a relationship with his brother

I'm sure he recognises me…It's more than me. It's his nieces…The girls have an enormous capacity to bond to people. I think his nieces could bond with him…that's the benefit to [him].

109. If the son were to move to Georgia, it was the brother’s intention to visit him four to six times a year.

Nicholas Polimonakis

110. Mr Polimonakis works for Drake, the care agency that had previously looked after the son in 2008 and 2009. Although he had not personally provided care for the son, he told the Tribunal that other staff members described the father as helpful, loving and supportive of the staff and his son. He confirmed that the case notes described the father working alongside and collaborating with staff. The services provided by the father and Drake staff included high needs care, assisting with personal hygiene needs, general supervision and the administration of medicine. He was unsure why Drake services had stopped being provided to the son but stated that it was common for services to be reviewed following a financial settlement being reached.

111. An agreed summary of Drake progress notes regarding visitors and events for the period 1 April 2008 to 10 January 2009 was provided to the Tribunal.

112. The progress notes reveal that during this time:

• the son received visits from his cousins on nine occasions;

• the son used his wheelchair to visit the next-door neighbour;

• the mother and father were both involved with the son’s care and at times both accompanied the son on excursions;

• the step-father visited the son to spend time with him. According to the progress notes, the son enjoyed the visit with his step-father.

113. Mr Polimonakis confirmed that Drake would be happy to provide further services for the son and would require four to five weeks to recruit a team specifically chosen to care for him. A clinical co-ordinator or case manager would be appointed to act as liaison between the various parties. He named Mr Newton as a case manager who had previously provided care to the son and would be happy to provide further services. He confirmed that a care manual could be compiled for the son's care. He was confident that Drake would be able to work both with the Public Guardian and the NSW Trustee and Guardian.

The stepfather

114. The stepfather is 56 years old and has been married to the mother since 1999, when the son lived with them for a year. During this time, the stepfather taught the son to drive a manual car and helped him find his first job. After the son had moved out from their home, he remained in weekly contact

115. The stepfather denied fighting with the son in 2000 prior to his leaving the USA for Australia. Any disagreements with the son were minor. One such disagreement was about efforts made by the son to find a job. As his stepfather, he didn’t think it was his place 'to say you can't do this, you can't do that.'

116. When the son left the USA for Australia, he stayed in weekly contact. The stepfather didn’t believe the son intended to remain in Australia permanently:

he had gone previously and he came back. I thought he'd rebound from place to place for years.

117. Once the son had left for Australia, the stepfather told the Tribunal that the son had been in regular telephone contact.

118. The stepfather described the effect of the son’s accident on his wife. Having been told her son would very probably die, the mother was so distraught the stepfather had to arrange for her flight home. When she lost her job due to her long absences, the stepfather financed all his wife’s subsequent trips to Australia.

119. He himself has travelled to Australia to visit the son on four occasions: twice in 2003, once in 2008 and once in 2011 when he left after two days because the father wouldn’t let him stay in the rented premises he shared with the son.

120. The stepfather conceded that his wife often seemed preoccupied after the son's accident but denied that the marriage had ever been empty. He agreed that his wife was placed under great strain trying to cater to everyone's needs:

If she were there, she should be here; if here, she should be there. She was never in the right place. Either she moves to Australia or [the son] goes to the US.

121. He agreed that he and his wife had discussed moving to Australia: to this end, she had applied for permanent residence.

122. The stepfather believes it would be in the son’s best interests to return to live with his mother in Georgia, where the stepfather has family members living locally with whom he is in regular contact. His sister is a nurse who has undertaken to support the mother and stepfather in their care for the son. He agreed that his nieces and nephews were considerably younger than the son.

123. He told the Tribunal that although his family did not have contact with the son prior to his marriage, they did see each other socially in 1999. He was unsure whether his family had had any contact with the son on his return to the United States in 2000.

124. In 2012, the stepfather’s lower leg was amputated due to an error by the surgeon during a routine knee replacement operation. He now has a prosthetic leg. He remains active and regularly attends the gym. He is able to perform household chores, shops and can drive a car. Despite the amputation of his lower leg, the stepfather was confident he could still assist with lifting the son, as required. He had recently assisted his own mother after a fall.

125. If the son returns to live in the USA, the stepfather anticipates being able to assist him with his physiotherapy, meal preparation and proficiency with computer skills. He also envisages being able to take the son on excursions around the neighbourhood, to the shops, to the beach, to sporting games, concerts and movies.

126. He agreed that the primary contact is between his wife and her son but that when they Skype, he is often in the background on screen. He often plays tricks by sneaking up on his wife while they are Skyping to make the son laugh.

127. In evidence before the Tribunal, the stepfather was unable to correctly state either the month or year of the son’s birth. He was unable to name the son’s favourite sport or favourite television show.

128. The stepfather told the Tribunal that he and his wife would contribute to a house purchased for the son in Georgia and would contribute to utility payments.

129. He confirmed that he and the mother had sought investment advice in the USA in relation to the son’s funds.

Angela Vass

130. Ms Vass is a speech therapist who works in rehabilitation. She is the co-author of a 2013 Speech Pathology Yes/No Consistency Assessment Report for the son. The report concludes that the son has a consistent Yes/No response to auditory comprehension of sentences of varying levels of complexity.

131. Ms Vass arranged a meeting with the son and Dr Sean Hosking, Principal Guardian with the NSW Public Guardian on 5 August 2013 The purpose of the meeting was to try to ascertain the wishes of the son in relation to his accommodation. At the meeting, Ms Vass saw herself as a facilitator whose role was to ask the son where he would prefer to live. The options he was given were as follows:

• Option 1 - as proposed by the mother, namely that he go in an aeroplane to America and that he would reside in a place similar to his current care facility for a period of time. He would then move into a house with his mother and her extended family;

• Option 2 - to move into a home with his father and to be supported in the house with medical care coming in;

• Option 3 - to stay in his current care facility.

132. Ms Vass developed and used a rating tool in order to communicate with the son. A copy of this tool is contained in the s58 documents. The document rating spans from Hate it - Not Really - It's okay - Pretty good - Love it.

133. Pictures representing the three accommodation options were shown to the son who was asked to indicate his view for each option using his thumbs up/thumbs down form of communication as the pictures were slid along the rating scale. Ms Vass told the Tribunal that the son had used the rating scale for a couple of months as a regular part of her therapy sessions with Ms Vass prior to the meeting with Dr Hosking.

134. As a result of the meeting, the son indicated a rating of 'Not really' in relation to the pictorial representation of living with his father or staying in his current care facility and 'Love it' for the option of living with his mother. Ms Vass confirmed that she had twice checked the rating scale with the son. Ms Vass couldn't remember the order in which the options were given to the son.

135. In a subsequent meeting on 14 August 2013, the son was again asked to indicate his accommodation preferences by using the rating tool. On this occasion, he indicated 'Hate it' for staying at his care facility; 'Not really' for living with his father and 'Love it' for living with his mother.

136. Ms Vass took no notes at the meetings. She had no recollection of the son's demeanour at the meetings.

137. In evidence before the Tribunal, Ms Vass agreed that in determining whether the son was able to weigh up options presented to him and understand the consequences of his choices, an assessment of the son’s cognitive functioning would be required. This would require further investigation by specialists practising in the area. She agreed that she had not sought such investigations. She agreed that a high level of cognitive and executive functioning would be required to understand the implications of the term ‘to reside’ and that it was difficult to know if the son had the required level of functioning to understand this.

138. Ms Vass was asked to consider the video of a meeting between the son and the Guardian Ad Litem, Ms Barbara Ramjan, on 30 April 2014, and the notes of the meeting taken by Ms Ramjan. To communicate with the son, Ms Ramjan used eye-blinking and thumbs up/thumbs down signals. According to the transcript provided, the son indicated that:

• he likes his care facility and the staff;

• he likes to see his mother and his father;

• he wanted to stay in Australia;

• he didn’t come to Australia for a holiday, rather he came to stay;

• there had been a fight with his stepfather prior to the son coming to Australia.

139. Ms Vass expressed concerns in relation to the methodology used by Ms Ramjan, particularly that the structure of the interview involved a tested rather than a supportive environment. Ms Vass expressed the view that the questions weren't specific enough for the son to give reliable yes/no answers. She gave the expression 'to see' as an example of this, and commented on the broader concepts of staying in Australia, stating that this needs to be clarified to enable the son to know what yes/no answer to give. She was also concerned by Ms Ramjan's use of eye blinking as a means of communication given the extent of the son’s physical disability and the fact that he may not have voluntary control over his blinking. She herself does not use eye-blinking to communicate with the son.

recommendations

473. I have had the opportunity to hear from witnesses and from the parties at length. The son’s care will be ongoing and require ongoing decisions. Whilst my decision is one of accommodation generally, I have also formulated recommendations that, in light of the wealth of evidence before me, might assist in the ongoing care of the son and the management of any further conflict within the family:

• The son requires self-contained accommodation from which each of his parents can be included and excluded as required.

• Each of the parents needs to have separate self-contained accommodation at close proximity to the son. The accommodation needs to be designed so that the mother and father need never have contact with each other unless this is what they both wish. The accommodation for the parents needs to be large enough to accommodate the father’s partner and the stepfather.

• The mother and the father are both retired. They are both experts in the care of their son. This expertise should be used to the son’s advantage. The manager of the external carer organisation should liaise with each of the parents to determine the extent of the care they can each provide to the son and they should be included in the care roster accordingly. The father’s partner also has expertise in caring for the son and thought could be given to the appropriateness of rostering the husband and his partner on together. Similar thought could be given to including the stepfather on a roster during his visits to Australia.

• Allowances should be made for the inconvenience and difficulties occasioned to the mother in having to travel from the USA to Australia, pending any grant of a permanent or more long-term stay visa.

• The accommodation set aside for the mother during her visits to Australia should be designated as such, to make it clear that she has a place to stay in Australia for the duration of her son’s life.

• The father should be renumerated for any rostered work to care for his son.

• Should the mother’s visa – whether for permanent or temporary stay - provide her with working rights, the mother should also be renumerated for any rostered work to care for her son. Should the mother’s visa not provide her with working rights, consideration should be given to providing her with assistance for her travel and living costs, as appropriate and in accordance with her visa requirements.

ORDERS

474. The decision of the Public Guardian that the son be accommodated in the USA under the care of his mother and his stepfather is set aside.

475. In substitution for this decision, the Tribunal orders that the son be accommodated in Australia in a purpose built home to include self-contained quarters for the father, with a separate entrance, and self-contained quarters for the mother, with a separate entrance. The Tribunal further orders that services for the son be provided by an external care agency and include a care co-ordinator, who is unrelated to the son, to liaise with the mother and the father.

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: 17 July 2015