BJK v Public Guardian

Civil and Administrative Tribunal

New South Wales

Case Name:	BJK v Public Guardian
Medium Neutral Citation:	[2015] NSWCATAD 60
Hearing Date(s):	2 and 3 December 2014
Decision Date:	31 March 2015
Before:	J Lucy, Senior member
Decision:	The respondent’s decision is affirmed.
Catchwords:	Application for review of decision of Public Guardian – Standing to seek review – Person whose interests are adversely affected – Meaning of “interests” – Application of principles in s 4 of Guardianship Act 1987 to decision about residence – Whether son’s welfare and interests better served by living in current accommodation with father or moving to mother’s home
Legislation Cited:	Guardianship Act 1987 (NSW) Guardianship Regulation 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	IO v Public Guardian [2004] NSWADT 111 XJ v Public Guardian [2006] NSWADT 327 Bull v Attorney-General (NSW) (1913) 17 CLR 370 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 Briginshaw v Briginshaw (1938) 60 CLR 336
Category:	Principal judgment
Parties:	BJK (Uncle of person under guardianship) (Applicant) BVH (Mother of person under guardianship) (Joined party) Public Guardian (Respondent) BVG (Father of person under guardianship) (Joined party)
Representation:	BJK (Applicant in person) BVG (Joined party in person) BVH (Joined party in person) Crown Solicitor (Respondent)
File Number(s):	1410309
Publication Restriction:	Publication restrictions apply under s 65 of Civil and Administrative Tribunal Act 2013 (NSW)

REASONS FOR DECISION

The person under guardianship, who I will refer to in these reasons as “the son”, is a 20 year old man with Down Syndrome and autism. He lives on the Central Coast with his father and younger brother, and visits his mother who lives in Sydney. The Public Guardian has been appointed as his guardian in respect of certain matters.
The issue in these proceedings is whether the Public Guardian’s decision, that the son continue to live with his father, is the correct and preferable decision. The son’s mother and her brother contend that the correct and preferable decision is that the son should live with the mother.

NON-PUBLICATION of NAMES

Pursuant to s 65(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW), there is a prohibition against publishing the names of certain persons to whom proceedings relate, if the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). 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 (Civil and Administrative Tribunal Act 2013, s 65(2)).
The term “community welfare legislation” includes the Guardianship Act 1987 (NSW) (see Community Services (Complaints, Reviews and Monitoring) Act 1993, s 4). These proceedings are for a decision for the purposes of the Guardianship Act 1987.
Whilst the prohibition in s 65 does not apply to an official report of the proceedings (see s 65(3)), I have avoided referring to many persons by name in these reasons. Instead, I have referred to the person under guardianship, various witnesses and other persons by reference to their relationships to each other, so as to preserve their anonymity.

BACKGROUND

The son’s parents (“the parents”) separated in June 2002. The parents were, at the time, living on the Central Coast. After the separation, the son and his younger brother (“the brother”) lived for most of the time with the son’s mother (“the mother”), but also spent time with the son’s father (“the father”).
In November 2007, the mother moved to Sydney. The son and the brother resided with the mother in Sydney, spending alternate weekends and some holiday time with their father.
After the mother had moved, the father applied to the Federal Magistrates Court for an order that the son and the brother reside with him. That application was successful.
In July 2008, the son and the brother commenced living with the father. The son started at a high school on the Central Coast in the same month, within a special unit. The son and the brother continued to visit the mother.
In 2012, when the son turned 18 years old, the mother applied for the appointment of a guardian for the son and also applied to be his guardian. In January 2013, the Guardianship Tribunal appointed the Public Guardian to be the son’s guardian to the extent necessary to carry out certain functions, including deciding where the son may reside and making decisions about access.
In January 2013, Ms Marie Mercer, as delegate of the Public Guardian, decided that the son was to permanently reside with the father. The mother was given access to the son at certain times.
In 2013, the son finished high school and commenced a process of transitioning to a program for young adults with disabilities known as post-school options.
In May 2013, the mother made a submission to the Public Guardian, requesting that the son live with her.
In January 2014, Ms Mercer, who is a Principal Guardian with the Public Guardian, visited the son in the mother’s home with the brother present, and also visited the son in the father’s home. In the same month, this Tribunal renewed the guardianship order for twelve months.
On 30 April 2014, Ms Mercer, as delegate of the Public Guardian, made a new decision that the son was to continue to live with the father.
On 1 May 2014, the mother and her brother (“the uncle”) separately contacted the Public Guardian to request reasons for the decision about the son’s residence. Ms Mercer prepared reasons for decision and provided them to the uncle, the mother and the father on 12 May 2014.
On 22 May 2014, the uncle requested an internal review of the Public Guardian’s decision. On 12 June 2014, the Public Guardian affirmed the original decision on review.
On 17 June 2014, the uncle applied for a review of the Public Guardian’s decision in this Tribunal.
On 16 September 2014, the Tribunal made an order joining the father and mother as parties to the proceedings. It also directed them both to undergo a family assessment by a psychologist. The Crown Solicitor engaged Ms Renee Napier, a clinical psychologist, to conduct a family assessment on behalf of the Public Guardian.
The father and the son participated in the family assessment.
On 20 October 2014, the uncle wrote to the Tribunal’s Registrar to advise her that the mother would not be participating in the family assessment. He said in the letter that he had advised the mother not to participate in the assessment after reviewing the Crown Solicitor’s instructions to the psychologist because he believed the report could not be prepared with impartiality. The reasons for this belief included the uncle’s view that the Public Guardian was biased against the mother, that the psychologist was a client of the Public Guardian and that the psychologist had been provided with the Public Guardian’s reasons for decision. He also contended that the psychologist engaged to write the report, Ms Napier, had no expertise relating to intellectual disabilities or autism.

RELEVANT LEGISLATION

Section 4 of the Guardianship Act 1987 provides for principles which persons exercising functions under that Act must observe. It provides as follows:
4 General principles
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.
Certain persons are entitled to seek review in this Tribunal of decisions made by the Public Guardian. Section 80A of the Guardianship Act 1987 provides:
80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian
(1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that:
(a) is made in connection with the exercise of the Public Guardian’s functions under this Act as a guardian, and
(b) is of a class of decision prescribed by the regulations for the purposes of this section.
(2) An application under this section may be made by:
(a) the person to whom the decision relates, or
(b) the spouse of the person, or
(c) the person who has the care of the person to whom the decision relates, or
(d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.
The Guardianship Regulation 2010 (NSW) provides in clause 17, that, for the purposes of s 80A(1)(b) of the Guardianship Act 1987, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian’s functions under that Act as a guardian are prescribed.

Standing to seek review

I raised at the commencement of the hearing the question of whether the uncle had standing, under s 80A of the Guardianship Act 1987, to make an application for review of the Public Guardian’s decision about residence. His entitlement to do so depends on him being a person whose interests are, in the Tribunal’s opinion, adversely affected by the Public Guardian’s decision (see s 80A(2)(d)).
The uncle described his interests as including his strong level of care and sense of responsibility to his nephew. He said his nephew was close to him and that his nephew’s interests were his interests. He told the Tribunal that he was the next person in line if something happened to the mother or the father. He also said he would see his nephew more often if the application were successful because the uncle would be more likely to see his nephew when he came to visit the mother. The uncle lives in Queensland but gave evidence that he visits the mother when he comes to Sydney.
None of the parties submitted that the uncle did not have standing.
The Guardianship Act1987 is remedial or beneficial legislation and should be interpreted so as “to give the fullest relief which the fair meaning of its language will allow”: see XJ v Public Guardian [2006] NSWADT 327 at [11], citing Bull v Attorney-General (NSW) (1913) 17 CLR 370, Isaacs J at 384. In particular, it should be interpreted so as to facilitate the making of applications for review of the Public Guardian’s decisions, if this is allowed by the “fair meaning” of s 80A.
The terms “interest” and “interests” are used in a number of different contexts in the Guardianship Act 1987, which generally support a broad construction of the term (see s 3E(1), 4(a), 6K(2)(b), 16(2A), 17(1)(b), 21A(2), 25G(c), 25P(2), 25U(4), 44(3), 45(3), 45AA, 46A(4) and 80A(d)). Section 4(a) of that Act provides, for example, that the welfare and interests of persons who have disabilities are to be given paramount consideration. In this context, the word “interests” is to be construed broadly, referring to a range of interests, including personal, financial, physical and familial interests, consistently with the protective purposes of the Act.
The term “interest” is used in another context in s 44 of the Act, for the purpose of determining standing. Section 44 provides for applications to be made to the Tribunal for consent to the carrying out of medical or dental treatment. Section 44(3) provides that the Tribunal is not required to consider an application relating to a patient if it is not satisfied that the applicant has a sufficient interest in the health and well-being of the patient. Again, the context suggests that the word “interest” is to be interpreted broadly, so that an applicant with a sufficient interest might include a friend of the patient or a relative who cares for the patient.
Consistently with the ways in which the terms “interest” and “interests” are used elsewhere in the Guardianship Act 1987, and with the beneficial and protective nature of the legislation, the word “interests” in section 80A(2)(d) is to be interpreted broadly. It extends to what might be termed personal or psychological interests in a person’s welfare. This construction of the provision is consistent with the approach taken by the former Administrative Decisions Tribunal in IO v Public Guardian [2004] NSWADT 111 at [26]-[29]. In that case it was held that a daughter’s “interest in preserving and strengthening her relationship with her mother” was adversely affected by a decision to relocate her mother, and that the daughter therefore had standing to make an application for a review of that decision under s 80A(2)(d) of the Guardianship Act 1987.
The uncle’s interests are adversely affected by the Public Guardian’s decision in a number of ways. First, the decision means that he will be unable to see or contact his nephew as frequently as he otherwise would be able to do. This will affect the closeness of his relationship to his nephew and his ability to have input into his nephew’s development and welfare. Secondly, given that he perceives nephew to be inadequately cared for by his father and that he cares deeply for the nephew and his sister, his interests in maintaining and promoting his sister’s and nephew’s wellbeing are adversely affected by the decision that the son reside with his father.
For these reasons, the Tribunal is satisfied that the uncle’s interests are adversely affected by the Public Guardian’s decision and that he has standing to bring these proceedings under s 80A(2)(d) of the Guardianship Act 1987. It follows that the Tribunal has jurisdiction to hear his application.

EVIDENCE AND SUBMISSIONS

There was a substantial amount of material filed in the proceedings by the uncle, the mother, the father and the Public Guardian. Several witnesses also gave oral evidence at the hearing.

Evidence of the Mother

The mother made a statement in the proceedings. Her evidence was that the son functioned at the level of a 2 to 4 year old and that his support needs are moderate to high.
The mother annexed to her statement the 88 page submission she had made to the Public Guardian for her son to live with her. The reasons she gave in that submission included the following:
(a)the son has a right to be kept safe and protected and nothing adequate has been implemented by the father, despite concerns the mother had raised;
(b)she did not want the son to be a victim of any form of abuse and it was therefore necessary to implement anything possible to protect the son;
(c)the son had not settled into school so it would be beneficial for him to have a fresh start and there was evidence that the son could manage quite dramatic changes;
(d)the mother knew the son’s health and medical information and educational information better than anyone else;
(e)there were more choices and greater opportunities in Sydney for the son now and well into his future;
(f)the son and his sister are very close and the son only spent time with his sister whilst he was in the mother’s care because the sister refuses to see the father;
(g)the mother was the son’s primary carer until the order that he lived with his father;
(h)the mother had concerns for the son’s safety due to a number of incidents. One of these was that the father allowed the son to go to the end of a jetty without adult supervision. She said that the father had lost his license for driving under the influence five times and that he was a heavy drinker and smoked around the children;
(i)the mother and the son had a close and comfortable relationship. The son was familiar with the mother’s home and was involved in outings and events when he was in care;
(j)if the son were to live with the mother, the son would be able to continue his friendships with people on the Central Coast when he spent time with the father;
(k)the mother had nothing to gain financially by having the son in her care.
The mother annexed to her submission a number of references and supporting documents. One of these was an unsigned statement apparently made by her daughter, the son’s sister (“the sister”) in 2012, with a further email from the sister dated January 2013, confirming that the earlier statement was true. The sister stated that the mother had better parenting techniques and that the father’s parenting was irresponsible. She also described the father as a heavy smoker and a mild alcoholic.
The mother’s evidence is that the daughter has had very little contact with her father since August 2008.
The mother also annexed a document written by a Ms Wright, a school learning support officer at the public school the son attended from 2000 to 2007. It had been prepared for the purposes of proceedings in the Guardianship Tribunal in April 2012. Ms Wright said that she was distressed at the changes in the son since he had been in the father’s custody. She described an occasion on which she drew pictures of two houses and under one she drew the mother and under the other she drew the father. She explained to the son that one was the house Mummy lived in and the other was the house Daddy lived in. She then asked the son to point to the house the son wanted to live in and he pointed to the mother’s house.
The mother gave evidence that there were three programs within a 6.3 km radius of her home that would be suitable for the son if he were to live with her. She said she had taken the son to each of these programs and he had happily wandered around the grounds in each place. She provided some information about each day program provider.
The mother also gave oral evidence at the hearing. She said that the father regularly visited, and drank alcohol at, the end of his street near a tree he referred to as the “yum yum tree”, whilst he had the care of the son. The mother said that she was aware that, when the father went down to the yum yum tree, he left the son at home with his brother. She said that the brother is fifteen, that he goes into his room, puts his earphones on and does not hear anything. The mother was concerned that the son was isolated in his own room and unsafe.
The mother said the relationship between the son and his sister had been “tight” for the last four years. The sister, who is now an adult, lives seven minutes from the mother’s home, according to the mother’s evidence.
The mother expressed the opinion that the son was good at handling change. Under cross-examination, the mother acknowledged that it would be a big change for the son to move from the Central Coast but said she would assist with the transition.

Evidence of the Uncle

The uncle made a statement in the proceedings. The statement contained a mixture of allegations, in the nature of submissions, and evidence.
The uncle expressed the opinion that the Public Guardian was biased towards the father. He alleged that the father was vindictive towards the mother and relied upon a statement by the sister written in July 2012, as well as other documents. The uncle alleged that the father had a vested interest in keeping the son due to the fact that he received a carer’s pension.

The uncle’s statement contains a great deal of information about and documentation of the interactions between the father and the mother, their communications with the Public Guardian and other matters.
The uncle annexed to his statement a number of documents, including:
(1)copies of apprehended violence orders against the father (one protecting his daughter dated March 2009 and one protecting the mother dated 2006);
(2)a document entitled “Letter of support for [the mother] in relation to accommodation arrangements for [the son]” written by the father’s ex-girlfriend (“the ex-girlfriend”) and dated 3 October 2014;
(3)criminal records of the father and the mother;
(4)a copy of a driver’s licence showing the father’s photograph but in another name, said to be a fake driver’s licence, which expired in 1997;
(5)copies of income tax assessments from the Australian Taxation Office in the name on the driver’s licence which was claimed to be fake, for the financial years ending 1989 and 1990;
(6)one page which the uncle claimed came from an affidavit by the father produced to the Family Court, and one page which the uncle said came from an affidavit by the father produced to the Guardianship Tribunal;
(7)a page which is apparently printed out from the internet, showing that a 375ml can of UDL Vodka and Passionfruit is equivalent to 1.2 standard drinks, and another internet printout stating that men can generally consume two standard drinks in the first hour to stay under .05.
The ex-girlfriend’s “letter of support” is discussed below under the heading “Evidence of father’s ex-girlfriend”.
The NSW “court history convictions” report shows that the father has used a number of different names. The offences of which he has been convicted in New South Wales include a number of offences as a child such as steal motor vehicle and driving unlicensed; indecent behaviour (urinating in the street) (1975); receiving (1978); prescribed concentration of alcohol (.06) (presumably drink driving) (1982); higher range prescribed concentration of alcohol (.210) and drive whilst disqualified (1983); middle range prescribed concentration of alcohol, disqualified driver, state false name and make false statement (1983); mid PCA (1992); larceny (1998); drive whilst disqualified (two occasions in 2007 and one occasion in 2008); and contravene prohibition or restriction in AVO (2013 and 2014).
The mother’s NSW criminal record, as produced by the uncle, consisted of a conviction for stealing in 1989.

Evidence of father’s ex-girlfriend

The father’s ex-girlfriend wrote a letter dated 17 June 2012 which was tendered by the father. At the time it was written, the ex-girlfriend was still the father’s girlfriend. The letter was prepared for the purposes of guardianship proceedings concerning the son.
The ex-girlfriend wrote in the letter that her relationship with the father had begun in January 2012. The ex-girlfriend said she witnessed firsthand the love and affection between the son and his father and said she had never seen any neglect or abuse towards the son. She said that there were a lot of people in the Central Coast area who knew and had an interest in the son.
As referred to above, the ex-girlfriend wrote another letter, which she provided to the mother and uncle, on 3 October 2014. In this letter, the ex-girlfriend stated that the father continually denigrated the mother. She said that the father became verbally abusive towards her towards the end of their relationship, from about mid-2013. The relationship ended in November 2013.
The ex-girlfriend stated that she had obtained an interim apprehended violence order against the father which he breached by calling her on one occasion and sending her flowers. She stated that she obtained a final apprehended violence order against the father in April 2014.
She described the letter she had written for the Guardianship Tribunal as being “purely based on what [the father] had told [her] about [the mother] without any evidence” and said that the father helped her to write the letter.
The ex-girlfriend also stated that she started to have concerns relating to the father’s alcohol consumption and excessive smoking around the children as the relationship progressed. She said that, at the father’s house, the son was always alone in his bedroom with the door shut, whereas at the mother’s house, the son spent time in the lounge and living areas and around other people.
The father’s ex-girlfriend also gave evidence at the hearing for the uncle and the mother. She said she had made contact with the mother a few months ago and had decided to make a statement to help the son.
The ex-girlfriend said that she had seen the son about three times with the mother and that the son was more relaxed with the mother and that he was loud and boisterous with the father.
Under cross examination, the ex-girlfriend said she had not referred to the father’s alcohol consumption and smoking in the letter she wrote in 2012 because the father had helped with that letter. By contrast, the ex-girlfriend said she made the current statement at home without the help of the mother. She denied that she was making the statement in order to get back at the father. The ex-girlfriend said she had grown to love the son and wanted to stand up for him.

Evidence of occupational therapist

The uncle and mother obtained a joint report from an occupational therapist, Ms Lauren Cleary, and a speech pathologist, Ms Jacqueline Boyd. The report did not refer to any expert code of conduct.
The report noted that the son and the mother attended the clinic for an appointment and that, while waiting, they communicated with each other through words and Makaton (being a form of signing). The therapists observed that the son appeared very relaxed and comfortable with his mother.
The therapists reported that the son communicated effectively in a variety of ways throughout the assessment, using a combination of Makaton and signs, verbal communication and some gestures.
The therapists observed that the son and mother demonstrated a strong and positive connection with one another. They said that the son engaged easily and naturally with his mother on all occasions when she initiated interactions. The mother demonstrated a strong and committed awareness of the son needs throughout the assessment. They observed that all three of the potential places mother has visited and been in contact with for post-schooling options appeared to be sufficient centres to meet the son current needs and further develop and enhance his skills.
Ms Cleary gave oral evidence in the Tribunal. She said that she had worked with children and families with autism for about 12 years and with adults up to the age of 21.
Ms Cleary said that she felt the son would cope “okay” with the transition to Sydney as long as he had adult support from someone who could deal with his needs.
Under cross examination, Ms Cleary agreed that she had not visited or independently checked the places the mother had proposed as suitable post-school options and that she had formed her view about them on the basis of the information provided by the mother. She also agreed that it did not appear that the son was currently suffering from abuse or neglect.

Evidence of the Father

The father provided written evidence to the Tribunal. The father admitted to having a criminal record as alleged by the mother and uncle and to having been subject to apprehended violence orders. He said, however, that the occasions on which he lost his licence for drink-driving were all before the son was born, being 22 years ago for one of those occasions and 30 years ago for the other three. He also admitted to having a fake driver’s licence in 1987 and a tax file number under a different name. He said he has not used it in years. He also said that the mother had a criminal record in Queensland which had not been produced.
The father said he ended the relationship with his ex-girlfriend and suggested that she was being vengeful or malicious by making her statement.
In response to the criticism of the mother and uncle that he did not use much signing, he said that he and the son are able to communicate better verbally.
The father gave evidence that the mother had international students staying in her home on a regular basis. He expressed concerns about the mother’s home stay students because, in his view, they were strangers living in the house with the son and brother. He said he believed she had new overseas students living there every few months.
The father stated that the son had three long-standing friends, who also had Down syndrome, and who resided on the Central Coast. He also said that there was a good bond between the son and the brother and to separate them would not help to maintain that bond.
The father said that the son had settled into the post-school options program, doing a number of different activities, including swimming, lawn bowls, tenpin bowling, cooking and athletics. He also gave evidence about leisure activities he engaged in with the son such as walking the dog to the beach, swimming and sailing.
The father said that the son is well known in the Central Coast region by many locals and that the area is safe. He expressed concerns about the son living in the inner-city. He said that the son does not adjust well to change and that his progression from high school to the post-school options program was aided by the gradual transition that he made.
The father said that the allegations made against him by the mother and the uncle about his past history of driving offences and apprehended violence orders did not bear upon how he cared for the son, the security the son has, the safety of his local environment and family environment or the stimulation the son is gaining from the activities he and the son enjoyed. The father also expressed a concern that if the mother were to have residence, she would make it very difficult for the father to see the son, given the mother’s hostility towards him.
In response to the allegation that he is an alcoholic, the father said he is a moderate drinker and had been so for many years. He said he was unable to drink too much as he had a full upper denture and tended to gag after a few drinks. The father acknowledged that he often went down to the yum yum tree and had a couple of vodka and orange “UDL” cans there (being the acronym for United Distillers Ltd). He said the tree is in full sight of the house. He reported that the son sometimes came with him but, if the son stayed home, he only had two drinks and stayed there no longer than 40 minutes.
The father said he gave up smoking in March 2014, after joining the University of New South Wales program for quitting.
The father gave evidence at hearing. In evidence in chief, he said that the relationship between the son and the brother was very strong. He also said that he had experience working and caring for people with disabilities. This included working as a high school teacher in special units in schools for teenagers with disabilities.
Under cross-examination, the uncle asked the father about discrepancies between an affidavit which the uncle said the father had provided to the Family Court in November 2011 and an unsigned copy of the affidavit the uncle said the father had provided to the Guardianship Tribunal in July 2012. The discrepancies were in relation to a statement of the father’s assets and liabilities. The uncle claimed that the father had represented the affidavit as being a copy of the document provided to the Family Court and that, apart from the statement of assets and liabilities, it was identical.
The page of the affidavit said to be filed in the Family Court states that the father has a 50% shareholding in a company valued at $130,000 and that he has one debt of $138,000 and another of $48,000. It also states that the other shareholder in the company holds his 50% shareholding in trust for the father. The page of the affidavit said to be provided to the Guardianship Tribunal omits these assets and debts, and instead states that he has a business worth $260,000.
The father accepted that the pages provided by the uncle were from an affidavit he had filed in proceedings in the Federal Magistrates Court (not the Family Court) and another which he had filed in the Guardianship Tribunal. He explained the discrepancies between the two affidavits as being due to the circumstance that the affidavit provided to the Guardianship Tribunal was a draft of the affidavit filed in court which was included to show that Tribunal that the mother and the father had matters pending in the Federal Magistrates Court and that the Tribunal should therefore “be held off”. The father explained that the reason for excluding the debts which appeared in the draft affidavit from the filed affidavit was that the law changed and the time a debtor could pursue a debt was changed from seven years to five years. He said that he did not include these debts because they were “no longer being chased” and that, when applying for a bank loan, he “found out that these debts were now gone”.
The uncle and mother provided copies of bank statements of the father. The bank statements were in the father’s name in trust for the daughter, the son and his brother. However, it appeared from the statements that the father used the account as his everyday banking account.
The uncle and mother also provided a table of information apparently extracted from the bank statements showing the father’s expenditure at the local cellars which was also a convenience store. It is not clear how the father’s bank statements came into the possession of the uncle and mother.
Under cross examination, the father agreed that the purchases were from a cellars which is also a convenience store. He said it was about 70 metres from the house and across the road from the yum yum tree.
The uncle pointed to purchases which appeared on the statements in the amount of $4.99, which the father agreed was the cost of a can of UDL and the cost of a gin and tonic.
There were some errors in the table. For example, on 23 July 2013, the table records that there were three purchases at $4.99, whereas the bank statement shows that there were two purchases for that amount, and a credit for that amount.
The uncle took the father to particular dates in 2013 on which he had made three, five, seven and nine purchases at $4.99 respectively. The father said he may have bought someone else a drink, but provided no other explanation for the purchases of multiple drinks.

Evidence of Principal Guardian

Ms Mercer, a Principal Guardian with the Public Guardian, made a statement in the proceedings. She set out the steps she took to obtain information to assist with her decision about where the son should live. These included visiting the mother’s home when the son and brother were present and the father’s home when the son and brother were present in January 2014.
Ms Mercer annexed to her statement a copy of the Public Guardian’s reasons for decision about the son’s accommodation. Those reasons state that the son appears comfortable and happy at both his mother’s and his father’s home. She also noted in those reasons that the mother appeared unable to avoid negative comments about the father, including in front of the son, and that it was more likely that the son will be encouraged to have a positive and continuing relationship with his mother whilst living with his father. On the other hand, in her view, it was likely that he would not be encouraged to have a positive and continuing relationship with his father whilst in his mother’s care.
Ms Mercer was cross examined at the hearing, including about whether the mother was in fact openly critical about the father. She remained consistent in her evidence.

Evidence of psychologist

Renee Napier, a clinical psychologist engaged by the Crown Solicitor on behalf of the Public Guardian, provided a family assessment report about the son and the father. Ms Napier stated, in the report, that she had read and agreed to be bound by the Expert Witness Code of Conduct under the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”).
The report stated that the Public Guardian had requested Ms Napier to address the adequacy of living arrangements at the mother’s and father’s houses, the type and amount of care at both houses, the risks associated with the change of accommodation, the son’s wishes regarding residency if possible and a range of other matters.
Ms Napier noted that the assessment was limited by the mother’s unwillingness to participate in the assessment process. She was therefore unable to comment on the mother’s parenting capacity, her relationship with the son, their attachment, the relative suitability of accommodation or any comparison between the two parents.
Ms Napier reported that, when the father came to her for assessment, he was administered the Personality Assessment Inventory after the first interview. She observed that there was strong evidence that the father attempted to portray himself as exceptionally free from the common shortcomings to which most individuals will admit; that is, that he minimised problems that he currently experiences. She concluded that his test responses were so distorted as to be invalid.
Ms Napier noted that the father spoke of his life with the son warmly. He was very proud of the son’s achievements and his likeability. She also commented that father was adamant about his support for the mother. She said that he felt that he was responsible for continuing open communication with her.
Ms Napier made some observations about the son. She said that he was happy and engaged in the process of communicating about the photographs they had brought with them. He indicated through pictures that he was happy about his computer and his bedroom at his father’s house, his brother and the family dog and cat. Both the son and the father indicated that the son loves his post-school options.
Ms Napier observed that the son’s behaviour was largely non-verbal. She described his language efforts as largely unintelligible. Ms Napier observed that the son and father interacted very comfortably and that the son turned towards his father for comfort. She said that they walked from the house hand-in-hand and were clearly affectionate.
Ms Napier reported that, by the father’s own admission, as well as his daughter’s narrative, the father was a poor parent to the daughter when he had custody of her. She commented that he clearly did not pay enough attention to his daughter and did not implement good enough strategies to support her. She reported also that the father had not developed much insight as an adult and particularly in relation to his own failings and flaws. Despite having significant concerns about the father, Ms Napier perceived that he was clearly at his best when in the company of his son. She described their relationship as a close well bonded one and said that the son trusted the father for emotional reassurance.
Ms Napier commented that, despite the son’s very limited communication, he was able to make his opinions clear and there should be no suggestion that his opinion was not heard. He differentiated between the people he loved and those he was less passionate about. He clearly loved his friends and his brother dearly.
Ultimately Ms Napier recommended that, although the father had been less than ideal as a father, he was well bonded to the son and the son was happy, established and secure in his current accommodation. She was of the view that there was no benefit to the son in changing his residence and that any increased access to services would be far outweighed by the demands of those changes. Similarly, any benefit of increased supervision from living with his mother would be outweighed, in Ms Napier’s opinion, by the distress of losing contact with his lifelong friends.

The uncle cross-examined Ms Napier. Under cross-examination, Ms Napier agreed that she was dissatisfied with the adequacy of her recommendations because she had not been provided with an alternative to assess. She also acknowledged that she had felt the need to make a recommendation. Because the mother refused to participate in an assessment, she said she was comparing the son’s current circumstances with unknown circumstances.

Evidence from Post-school options

Mr Glen Renés is the family liaison coordinator at Options Disability Support, a working arm of the Central Coast Post School Options incorporated. Mr Renés made a statement in these proceedings at the request of the Public Guardian in which he said his duties included case management, relationship management, risk assessments and leadership and employee development. He has experience over 30 years in providing support to people living with a disability and their families and carers.
At the time of writing his statement, he had met the father but not the mother. He gave evidence that the son had limited verbal communication. He had the ability to understand simple instructions but required time to comprehend the information and act upon the instructions.
Mr Renés expressed the view that, if the son were to move to Sydney, there would need to be a comprehensive transition plan developed within an identified timeframe. He reported that the son was settling at Options Disability Support. He also expressed the opinion that it would assist the son to maintain his current lifestyle, including having access to the different programs offered by Options Disability Support.
Mr Renés gave evidence at the hearing. He said that, since making his statement, he had also met the mother. He acknowledged that he did not know the son very well. He said the father and son appeared comfortable with each other and they both respected each other.
He said he had also observed that both the son and the mother respected one another on the occasion he had met the mother. It was Mr Renés’ opinion that the mother understood the son’s developmental needs.
The mother and uncle tendered a report from the coordinator of the post-school options program which the son attends, dated 6 November 2014. That coordinator is a different person from Mr Renés. The report states that the son:
·“needs supervision and support to engage with most of his activities throughout the day”
·“is known to have anxiety and will need support when any changes occur to his regular routine”;
·“requires his food cut up for him” and “requires assistance with personal care after a bowel motion and to wash hands”;
·“will wander away from the site/activity before staff are aware he has left”;
·“has no understanding of road safety and requires staff support to assist at all times when in the community”;
·“requires full supervision, he is friendly with everyone and has no awareness of personal dangers”;
·“has limited verbal communication” and “will answer in 1 or 2 words”; and
·“does not like sudden changes in his routine”.

Submissions of Public Guardian

Mr Dalla Pozza, for the Public Guardian, submitted that the evidence established that the son was happy and content living with the father, that he enjoyed a loving relationship with the father, that the father had considerable experience working with people with a disability, that the son had lived in the area for a very long time, that he partook in activities he enjoyed that he was well supported by post-school options and that he had a close bond with his brother and some friends in the area.
Mr Dalla Pozza submitted that moving the son from his home environment would diminish contact with his brother and father and was likely to cause the son disruption and stress. He said that, were the Tribunal to decide to move the son, the Tribunal would have to be satisfied that there was an appropriate level support for him in Sydney. He submitted that the evidence before the Tribunal was at too high level of generality for the Tribunal to reach that state of satisfaction.
Mr Dalla Pozza turned to the allegation that the father was not a person of good character due to alleged fraud and his criminal record. He said that the father’s character does not need to be beyond reproach. The question is his ability to provide an appropriate level of care for the son. The criminal records did not, in Mr Dalla Pozza’s submission, cast light on that question.
Mr Dalla Pozza said that the ex-girlfriend’s evidence did not assist the Tribunal to determine whether the father was providing a suitable level of care. He said it should be treated with a degree of caution as the ex-girlfriend had only visited the mother on three occasions and that this was not enough to form an informed view. Further, given the acrimonious relationship between the ex-girlfriend and the father, the ex-girlfriend had a motivation to embellish his flaws.

Submissions of Father

The father submitted that he provided a good level of care to the son and said that, over the last two years, there had been no complaints by the Public Guardian about that care.
The father said that, if the son were to reside with the mother, he would be concerned that an ongoing relationship between him and the son would not be facilitated. He said the son was well settled. He lived in a small, slower paced community area with a village atmosphere. This gave him a certain amount of independence which could develop as time went by. The son was actively involved in post-school options and still saw his friends. The father also referred to the close relationship between the son and his brother.
The father said, in relation to the son pointing to an image of the mother’s house when asked to choose where he wanted to live, that the son would say yes to anyone who asked him who he wanted to live with. He said the son did not have capacity to make that decision.

Submissions of the Uncle

The uncle said that there was no logic supporting Ms Napier’s recommendation that the son live with the father. He pointed out that Ms Napier had admitted that she had no comparison to make and that she felt the need to make a recommendation. In those circumstances, it was inevitable that she would recommend that the son live with the father. He also submitted that Ms Napier had not demonstrated any qualification in respect of autism or developmental delay.
The uncle said that there was reason to be sceptical about what the father said, given the outcome of his psychological testing. He suggested that this would extend to anything further the father said.
The uncle submitted that the father had provided different versions of an affidavit to the Family Court and the Guardianship Tribunal to suit his own purposes. He said that the version provided to the Family Court represented that the father was in a poor financial position which suited him when seeking a monetary settlement, and the version provided to the Guardianship Tribunal represented that he was in a sound financial position for the purposes of seeking guardianship.
In relation to the evidence of the occupational therapist, the uncle said that, given her experience of autism and developmental delay, her report should be relied upon.
The uncle said that the exercise done by Ms Wright, the learning support officer at the son’s primary school, whereby the son pointed to the picture of his mother’s house in response to a question about where he wished to live, showed that the son clearly wanted to live with his mother.
In relation to the ex-girlfriend’s evidence, the uncle said it had not been shown that she was motivated by resentment. Her evidence should therefore be trusted.
The uncle said that Ms Mercer had only 30 minutes each week per client and that she followed the path of least resistance. The father was the primary source of information for the making of her decision. The uncle said that Ms Mercer did not make an objective assessment and overlooked the strength of the mother.

Submission of the Mother

The mother submitted that she had cared for the son since birth and had been positive, enthusiastic and motivated to do all she could to give the son the best future possible. She said that the son would always have a close relationship with the father and the brother. The mother also submitted that, if the son came into her care, it would be easier for him to maintain contact with the extended family, especially his sister and uncle. She denied she hated the father and said she was only concerned for the son.

Assessment of Expert Evidence

As stated earlier, Ms Napier agreed to be bound by the UCPR expert code of conduct prior to writing her report, while Ms Cleary did not agree to be bound by any expert code of conduct prior to expressing the opinions on which the uncle and the mother rely. The expert code which applies in the Tribunal is set out in NCAT Procedural Direction 3.
The code of conduct set out in NCAT Procedural Direction 3 is based on the UCPR Code (see cl 2). The Procedural Direction does not apply to “evidence obtained from treating doctors, other health professionals or hospitals” (cl 7). As a clinical psychologist, Ms Napier is a professional who works in the mental health arena. In my view, she is a health professional. Ms Cleary is an occupational therapist and is also, in my view, a health professional. If this is the case, NCAT Procedural Direction 3 does not apply to their evidence.
The question of whether Ms Cleary and Ms Napier are “health professionals” to whom the Procedural Direction does not apply was not raised at hearing and the parties did not make submissions on it. For the abundance of caution, Ms Cleary, Ms Napier and the parties relying on the evidence of each are excused from compliance with NCAT Procedural Direction 3 pursuant to clause 3, in case I am wrong and it does apply to that evidence.
Even though the UCPR expert code of conduct would not otherwise apply to Ms Napier, the fact that she has agreed to be bound by that code is relevant to the weight to be attributed to her evidence. Clause 2 of the expert witness code of conduct in Sch 7 to the UCPR provides that an expert witness has an overriding to assist the court impartially on matters relevant to the expert’s area of expertise (cf NCAT Procedural Direction 3, cl 11). Clause 2(2) of Sch 7 to the UCPR and cl 11 of NCAT Procedural Direction 3 provide that an expert’s paramount duty is to the court or tribunal and not to a party. If a party agrees to be bound by provisions such as these, the Tribunal may have greater confidence that the expert has prepared a report impartially.
The Tribunal is not bound by the rules of evidence (Civil and Administrative Tribunal Act 2013 (NSW), s 38(2)), but those rules may nevertheless be of assistance in determining what is probative and what is not. At common law, in order to be admissible, an expert’s opinion must be wholly or substantially based on the witness’s expert knowledge; the facts on which it is based must form a proper foundation for it; and the scientific or other intellectual basis of the conclusions reached must be demonstrated (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305; Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43).

Ms Napier’s evidence

The uncle contended that the Tribunal should not rely on Ms Napier’s evidence because she has no qualifications to deal with young adults with autism.
Ms Napier has described her qualifications as being a registered clinical psychologist, a member of the Australian Psychological Society’s college of Clinical Psychology and College of Forensic Psychology and as having a Master’s degree in clinical psychology. Ms Napier does not attest to having any qualifications in dealing with young adults with autism, or to having any expertise in this area.
To the extent that Ms Napier’s report addressed the application of the Personality Assessment Inventory to the father and made observations about the father’s psychological profile, his parenting capability and his relationship with the son, Ms Napier was, in my view, expressing opinions within her field of expertise. Her observations that the son appeared happy about certain features of his current living arrangements and that his behaviour was largely non-verbal are not so much expressions of expert opinion as general observations. The Tribunal also has regard to this evidence.
The Tribunal gives less weight to Ms Napier’s view that there was no benefit to the son in changing his residence and that any increased access to services or to increased supervision would be outweighed by the demands of the changes and the distress of losing contact with friends. Ms Napier’s expertise in psychology places her in a better position to form an opinion about the effect of the move on the son than a member of the general population, but I do not give her opinion as much weight as I would give to it if she had attested to having experience or expertise in relation to intellectual disabilities.
Further, Ms Napier has not fully explained the intellectual basis of the conclusions she reached. That is, she has not explained in her report why she is of the view that the benefits to the son of moving would be outweighed by the disadvantages.
It is also significant that, as the uncle contested and Ms Napier largely accepted, Ms Napier’s ability to make a recommendation as to where the son should live was significantly compromised by the mother’s decision not to participate in the family assessment. Her recommendation that the son stay in his current residence was limited by an inability to administer psychological testing to the mother or visit the mother’s residence.

Ms Cleary’s evidence

Ms Cleary’s evidence must be probative for the Tribunal to place any weight on it (see, for example, Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, Crennan and Bell JJ at [124]). I take into account Ms Cleary’s evidence that she observed the mother and son interacting positively and that the mother and son communicated effectively together using Makaton. I give little weight, however, to Ms Cleary’s opinion that the move from the Central Coast to Sydney would be “okay” for the son, as long as the son had support from an adult who could deal with his needs.
Ms Cleary’s field of expertise, being occupational therapy, does not form a proper foundation for Ms Cleary’s opinion about the general effect of the relocation on the son. Ms Cleary’s experience dealing with children and young adults with autism may provide some basis for her opinion about how the son would react to a change of location, but Ms Cleary did not demonstrate the intellectual basis of the conclusion she reached. For example, she did not give any evidence as to whether she had experience of autistic children or young adults moving from one location to another or as to why she thought, in this instance, the son would cope with the move. She does not, of course, claim to have any expertise in psychology.

Application of principles

I am required to observe the principles in s 4 of the Guardianship Act 1987 when making my decision, because I am exercising functions under that Act. The functions I am exercising are those involved in the review of a decision of the Public Guardian on an application made under s 80A of the Guardianship Act 1987. In reviewing that decision, I am “standing in the shoes” of the Public Guardian who exercises functions pursuant to an order of this Tribunal made under Part 3 of the Act. The Public Guardian’s functions include those conferred or imposed on the Public Guardian under the Guardianship Act 1987 (Guardianship Act 1987, s 77(3)).

The views of persons who have disabilities should be taken into consideration (s 4(d))

The parties did not attempt to obtain the son’s views about his preferred residence in any reliable way. The lack of information about the son’s views was also a matter remarked upon by the officer of the Public Guardian who conducted the internal review of Ms Mercer’s decision about residence.
I give no weight to the evidence of Ms Wright, insofar as it is relied upon as indicative of the son’s views. Firstly, it has not been demonstrated that Ms Wright has the expertise to administer psychological or other tests designed to elicit the views of young persons suffering from autism or Down syndrome. Secondly, even if the “test” were reliable, it was administered in 2012 and the son may have changed his mind about where he wishes to live since then. Thirdly, Ms Wright did not make a statement for the purposes of these proceedings, was not made available for cross examination and did not give oral evidence. Fourthly, the “test” does not appear to me to provide a sound basis for obtaining the son’s views. It may be, for example, that the son perceived Ms Wright to be closer to the mother than to the father, and wished to please her. It may be that he had no real understanding of what he was being asked.
There was no evidence from an expert with qualifications or experience in dealing with persons with autism and/or Down syndrome as to the son’s ability to understand abstract concepts or to express a view about where he should live. This is regrettable.
When I asked the parties for their opinions as to whether the son was able to express such a view, they all initially said he did not have the capacity to do so, but the mother then claimed that he did. This appeared to be in order to support her claim that the evidence of Ms Wright provided a reliable indication of where the son wished to live. The opinion is not easy to reconcile with the mother’s written statement that the son functions at a level of a two to four year old.
The report from the coordinator of the post-school options program, dated 6 November 2014, indicates that the son has limited verbal communication and will answer questions in one or two words. Mr Renés also gave evidence that the son has limited verbal communication, that he has the ability to understand simple instructions if he is given time to comprehend them, that he becomes agitated at times, and that he sometimes appears to become overwhelmed by the environment. This evidence was not challenged.
Ms Mercer wrote, in the written reasons for her decision, that the son was “unable to provide an informed view and observation has been given consideration”. Ms Mercer has visited the son on a number of occasions since early 2013.
Ms Napier observed in her report that the son was “very largely non-verbal” and that “his language efforts were largely unintelligible”.
The observations of Ms Cleary and Ms Boyd in their report were that the son could communicate in a variety of ways including through signs and verbal communications. They noted that he could “clearly communicate basic needs, wants and interests”. They also referred to the mother modifying questions so that the son could comprehend them and to the son being able to answer “simple questions”. They did not directly address the question of whether the son could understand or communicate abstract ideas, but their report suggests it is likely he could not.
A file note provided by the Public Guardian dated 15 April 2013 indicates that an officer from the Public Guardian’s office asked the son questions such as “Which is better, visiting Mum with [your brother] or visiting Mum on your own” and that the son did not appear to understand a two-part question.
The Guardianship Tribunal, in its reasons for decision dated 15 January 2013, considered that, due to the son’s communication difficulties, it was difficult to ascertain what his wishes might be.
From the material before the Tribunal, I am satisfied that the son does not have capacity to express a view as to whether he would prefer to live at his mother’s or his father’s home. To the extent that his wishes can be ascertained from his behaviour, the evidence indicates that he is happy in both his mother’s and his father’s presence, and in both homes.

The freedom of decision and freedom of action of persons who have disabilities should be restricted as little as possible (s 4(b))

The evidence establishes that both parents encourage the son’s freedom of decision and freedom of action where possible. As was submitted on behalf of the Public Guardian, Mr Renés’ evidence indicates that the post-school options program the son is involved in aims to develop a person-centred plan. It also seeks to develop skills in its clients which would better enable them to make their own decisions.
Due to the son’s involvement in the post-school options program, this principle slightly favours the son remaining with the father. The Tribunal notes that there may be programs in Sydney which would also facilitate the son’s freedom of decision and freedom of action. However, at this stage, there is uncertainty surrounding the program the son would attend if he were in his mother’s care.

Persons who have disabilities should be encouraged, as far as possible, to live a normal life in the community (s 4(c))

This principle does not favour the son living with either parent. The evidence indicates that the son lives a normal life in the community, insofar as is possible, when living with his father. The mother has also given evidence that she involves the son in social events and other activities when he is with her. I am satisfied that he would be encouraged, as far as possible, to live a normal life in the community with either parent.

The importance of preserving the family relationships and the cultural and linguistic environments of persons who have disabilities should be recognised (s 4(e))

The son’s relationship with his brother would be maintained whether he lived with the mother or father, as the son would visit the brother if he lived with the mother. However, the son’s current close relationship with his brother, as a member of the same household, would be disrupted if he were to live with the mother. The mother referred to the possibility of the brother moving to Sydney but there was no evidence of a definite plan to that effect.
The son’s relationship with his sister would be preserved irrespective of the parent with whom the son lived, but he would be able to develop that relationship further if he lived with the mother. The mother’s evidence was that the sister lives a short distance from her home.
Ms Mercer, in her reasons for decision, indicated that the mother’s expressed views of the father were of intense hatred and that the father did not communicate his views of the mother in a negative manner. The mother gave evidence that she did not hate the father. Ms Mercer was cross examined about her evidence that the mother was openly critical of the father and maintained her position that this was the case. She explained that by “openly” she meant in front of the son.
A file note written by Ms Mercer in January 2013 records that, during a telephone conversation, the mother was “irate whilst discussing her ex-husband. She spoke relentlessly about family members and everyone’s hate for her ex-husband.” A file note Ms Mercer made of a meeting with the mother and son in January 2013 also records the mother “reverting to negativity” in front of her son. Ms Mercer wrote in her reasons for decision that, on first meeting the mother in the company of the son, she requested that the meeting proceed without any negative discussion of the father, but had to end the meeting when, despite Ms Mercer’s intervention, the mother would not desist from “negative, emotional outbursts about her ex husband”.
I am satisfied from the evidence that, even if the mother does not hate the father, she speaks negatively about the father in front of the son.
The ex-girlfriend alleged that the father continually denigrated the mother, but did not say whether this occurred in front of the son. The father accepted that he had been critical of the mother on occasion, but denied that he continually denigrated her. Ms Mercer’s evidence was that, when she had visited the father, he had not spoken critically of the mother in front of the son and had in fact made positive comments about her.
The evidence does not establish that the father speaks negatively about the mother in the son’s presence.
I agree with Ms Mercer’s assessment that it is in the interest of the son’s ongoing positive relationships with both parents that the son continue to live with the father.

Persons who have disabilities should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs (s 4(f))

The post-school options program which the son currently attends encourages him to be self-reliant, as far as possible, in relation to his personal and domestic affairs. The mother provided evidence of similar programs which the son could attend in Sydney, but this evidence is at a high level of generality. It is not possible to know whether, if the son were to live with the mother, a program in Sydney would encourage the son to be self-reliant to the same extent. However, I am satisfied that both parents encourage the son to be self-reliant where possible.
The evidence establishes that the mother uses Makaton with the father more frequently than the father. The father agrees he does not use it much, because he says he can communicate with the son without it. The use of Makaton may assist the son to be more self-reliant in matters relating to his personal or domestic affairs, because it allows him to communicate his needs more effectively.

Persons who have disabilities should be protected from neglect, abuse and exploitation (s 4(g))

The mother alleged that the son was at risk of abuse in the father’s care. There was no evidence to support that allegation. There is, in my view, some risk of abuse posed by the international students residing with the mother. It is not possible to assess the degree of risk on the evidence before me and I do not give this significant weight.
The mother alleged that the father neglects the son. There was evidence, discussed below, that the father leaves the son for a period of 40 minutes or so while he has alcoholic drinks at the end of the street. I am not satisfied that this constitutes neglect, abuse or exploitation.

The community should be encouraged to apply and promote the principles in s 4 of the Guardianship Act 1987 (s 4(h))

This principle is not relevant to my decision.

The welfare and interests of persons who have disabilities should be given paramount consideration (s 4(a))

This principle requires me to consider, very broadly, whether the welfare and interests of the son would be better advanced by maintaining his current living arrangements, or by deciding that he live with the mother. This principle is to be given “paramount consideration” so I have considered it last.
I accept the evidence of Ms Cleary, Ms Mercer, Mr Renés and the mother herself that the mother and son interact positively with each other and that the son appears happy in the mother’s company. I also accept the evidence of Ms Mercer, Ms Napier and Mr Renés and the father that the father and the son are happy and comfortable together.
I agree with the submission of Mr Dalla Pozza that the ex-girlfriend’s evidence should be treated with caution, essentially for the reasons he gave. The ex-girlfriend said she had only visited the mother’s home three times when the son was there, providing only a limited opportunity for observation of their interactions. In addition, she provided evidence to the Guardianship Tribunal which left out significant information about the father’s alcohol consumption and smoking, and which had been partly prepared by the father. Whilst the letter she provided to the Guardianship Tribunal was not sworn evidence, she nevertheless provided evidence to assist the father which concealed from the Tribunal matters relevant to its decision. Further, her perspective is likely to be affected by the acrimonious relationship she now has with the father.
Accordingly, while I do not entirely discount the ex-girlfriend’s evidence, I give little weight to her evidence that the son is relaxed with the mother and more boisterous with the father. Even if her perception is accurate, this may merely reflect different ways in which the son relates to different genders.
The evidence thus indicates that the son has a good relationship with both parents and, to the extent that his welfare and interests are promoted by having a good relationship with the parent with whom he resides, I consider that this would occur in both homes.

Dishonesty of the father

There is a question as to whether the father’s history of criminal convictions and dishonest and/or fraudulent behaviour favour a decision that the son live with the mother.
The father has a number of offences involving dishonesty, including for stealing, larceny and giving a false name to a police officer. The most recent of these was about seventeen years ago, in 1998. He also admitted to having a fake driver’s licence in 1987 (it appears to have expired in 1997 from the photocopy of it) and a tax file number under a different name at the same time. The purpose of the tax file number under his alias was, according to his own evidence, so that he did not have to be taxed 48 cents in the dollar for his second job.
There are also more recent events relied upon by the uncle and the mother which are said to indicate dishonesty. As indicated above, the uncle pointed to discrepancies between an unsigned affidavit provided to the Guardianship Tribunal in 2012 and a filed version of the affidavit which had earlier been provided to the Federal Magistrates Court in 2011. The father’s explanation for the differences between the two (concerning a change in the limitation period for pursuing debts) was not directly challenged by the uncle.
The father’s explanation for providing an unsigned version of the affidavit to the Guardianship Tribunal, which differed from the earlier filed version, was that it was merely filed in that tribunal to demonstrate there were pending proceedings elsewhere. This does not explain why he filed a draft instead of the original, unless he means he was careless as to which version he filed because, given the purpose of the affidavit, it did not matter. There was no other evidence as to the purpose of the father’s affidavit in the tribunal or the use to which it was put. It is possible that he deliberately provided to the Guardianship Tribunal a different version of the affidavit from the affidavit sworn in the Federal Magistrates Court, removing certain debts from his statement of assets and liabilities, in order to support his position in the Guardianship Tribunal proceedings, as the uncle alleges.
I cannot, however, be satisfied that the father fraudulently tendered the draft affidavit, or did so intending to mislead the Guardianship Tribunal, on the basis of inexact proofs, indefinite testimony or indirect references: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 per Dixon J. Having regard to the gravity of the allegations, there is insufficient evidence for me to be reasonably satisfied that the father filed the draft affidavit with an intention of misleading the Guardianship Tribunal.
The offences involving dishonesty and the fraudulent activities to which he has admitted are relevant to the father’s credit and, to some extent, to the question of whether it is in the son’s interests to reside with the father.
The father’s criminal history and his use of a driver’s licence and tax file number obtained under a false name, show that the father has been willing to use deception to obtain a benefit for himself, particularly when the deception is of a person or entity in authority. Although the relevant incidents occurred some years ago, there is a sufficient number of the incidents to indicate a pattern of dishonest behaviour. Ms Napier’s evidence that the father attempted to portray himself as exceptionally free from the common shortcomings to which most individuals will admit when undergoing psychological testing is another indicator that his evidence is not entirely reliable. For these reasons, the Tribunal approaches the father’s evidence with a degree of caution.
Mr Dalla Pozza submitted that the father’s character does not need to be beyond reproach, the critical question being the father’s ability to provide an appropriate level of care. While this is largely true, there are ways in which a lack of good character may affect the question of whether it is in the son’s best interests to live with him. For example, the father may conceal relevant matters from the Public Guardian and/or mother, if they do not reflect favourably upon him, and this may lead to decisions being made by others about the son’s residence or care which are not in his best interests.

Mother’s criminal history

The mother has been convicted of an offence of stealing in the late 1980s. The details of the offence are unclear. The father asserts that she has a criminal record in Queensland but no details of this have been provided.
I give the mother’s criminal history little weight, given that there is only evidence of a single offence which occurred over twenty five years ago. There is no indication that this would affect her care for the son.

Evidence of father’s drinking and smoking

I am satisfied from the evidence that the father no longer smokes. In addition to the father’s evidence to this effect, Ms Mercer stated that she did not smell smoke when she visited his house. This was not seriously challenged.
The father has a number of convictions for drink driving offences, and for driving whilst disqualified. There is other evidence relied upon by the uncle and mother to establish that the father still drinks excessively.
I give little weight to the evidence of the sister (that is, the father’s daughter) that the father is a “mild alcoholic,” which was provided by the mother, for a number of reasons. The evidence is of her experience prior to mid-2008, so is not current. The latest document relied on from the sister was written in January 2013. Secondly, she has not provided a signed statement, nor has she been made available for cross examination. Thirdly, while the sister may be in a position to comment on how much alcohol her father consumed daily prior to mid-2008, she is not qualified to express a view as to whether he was an alcoholic at that time.
The evidence of the ex-girlfriend that she had concerns as to the father’s alcohol consumption must be treated with caution, for reasons given above. The ex-girlfriend did not mention the father’s alcohol consumption in her statement made in June 2012. In addition, her evidence is that her relationship with the father ended in November 2013, and the father gave evidence that he drinks less since stopping smoking in early 2014.
The mother did not give any explanation for her assertion that the father drinks heavily. It appears to be based on past experience or hearsay, as she does not claim to spend any time with the father at the father’s current residence. Accordingly, I do not give any weight to that evidence.
There is evidence of the father’s expenditure from bank statements, which the father agreed showed his purchases of cans of alcoholic drink. However, it has not been shown that the son was in the father’s care at the relevant times. Each of the occasions on which the father agreed that he had made 5, 7 and 9 purchases at $4.99 was a Friday. It is therefore possible that the son was with the mother at those times. It is also possible that the father bought one or more drinks for other people, as he claimed. The bank statements are from 2013 and, as mentioned above, the father gave evidence that he has been drinking less since giving up smoking in March 2014. Whilst the evidence indicates that the father probably did drink more than two or three drinks per night at times in 2013, it does not establish that he does so regularly when the son is in his care now.
I am not satisfied that the father drinks to excess when he has the care of the son.

Alleged inadequate supervision of the son by the father

The mother claims that the father regularly leaves the son unsupervised, or under the supervision of his adolescent brother.
One of the events the mother refers to in support of this claim is an incident in which she says the father allowed the son to go to the end of a jetty with his brother but without adult supervision. She said there was a DVD of this incident but did not provide it to the Tribunal. She provided an account of what allegedly occurred on the video and a transcript of the DVD.
The father states in his evidence that he and the ex-girlfriend were at the other end of the wharf, then walked to the part on which the son was lying.
The evidence provided to the Tribunal is not sufficient for me to conclude that the father provided inadequate supervision of the son on this occasion.
The mother also gave evidence that the father has frequently left the son in the care of the brother, since the brother was nine years old. She did not provide any explanation of why she believed this. The father denied leaving the son in the brother’s care when he was nine years old. There is insufficient evidence to satisfy me that this occurred.
The uncle cross examined the father about regularly leaving the son at home when he went to have a drink at the yum yum tree. The father gave evidence that the tree was in full sight of the house; that is, that he could see the balcony and driveway of his house from the yum yum tree. The uncle showed the father photos which the father agreed were photos of the yum yum tree and the view from that tree to his house. The yum yum tree does not appear in the photograph which is said to depict the view from that tree. In the photograph looking back to the father’s house, there is a superimposed text box with the words “[father’s] house, up this driveway” with an arrow. It is not very clear where the arrow is pointing, but further photographs provide a clearer picture of the driveway.
If the photograph accurately depicts the view from the yum yum tree, it appears that there is a very limited view of the father’s driveway and balcony from that tree.
The father said that he only went to the yum yum tree for a drink once the son was settled after having afternoon tea, and that he stayed no longer than 40 minutes. He also said the brother “kept an eye” on the son while the father was out of the house and that the brother could call the father on his mobile at any time. It is clear from the photographs, and from the evidence, that the yum yum tree is a short distance from the father’s house.
There was no expert evidence, and very little lay evidence, as to the degree of supervision which the son requires. However, the report from the post-school options coordinator indicates that the son needs a high level of supervision when attending that program, including assistance with personal care after a bowel motion and to wash hands. That coordinator also reported that the son has no understanding of road safety and no awareness of personal dangers. The father gave evidence that the son sometimes walked to and from the yum yum tree by himself, whilst also saying that it was a quiet street.
There is a lack of detailed evidence before me about the level of supervision needed by the son in his home environment and in the street near his home. However, on the material before me, I am persuaded that the welfare and interests of the son would be better served by a greater degree of supervision than the father currently provides.
It is of concern that the son is permitted to walk to and from the yum yum tree unattended, even though the father said that either he watched the son or a person at the cellars watched him. It is hard to see how either would know to watch the son if he left the house without warning while the father was at the yum yum tree and the brother was in his room. Even if they were watching him, there may be little they could do at a distance if a car approached and the son walked on to the road in front of the car. The question of the son’s safety walking to and from the yum yum tree was not, however, explored to any great extent in cross examination, or at all. There was little evidence as to the circumstances or frequency in which this occurred.

Whilst the presence of the brother at the home may provide a level of supervision for the son, it is inappropriate to rely on a child to supervise the son. As the mother submitted, the brother may be in his bedroom with the door shut and the music turned up, and may not know what the son is doing.
The evidence does not establish that leaving the son at home with the brother for forty minutes at a time, when the father is a short distance away, exposes the son to a high degree of risk. However, it would be in the interests of the son’s safety and wellbeing, given his inability to care effectively for himself, for the father to exercise a greater degree of supervision.
My conclusion that the father’s supervision of the son is inadequate is consistent with his earlier behaviour in relation to the sister. The sister reported that he did not supervise her adequately when she was a teenager in his care. The father acknowledged that this was the case when speaking to Ms Napier.
There was no evidence to indicate that the mother does not provide an adequate level of supervision whilst the son is in her care, or that she leaves him unattended for periods of time.
The son’s welfare and interests are best served by living with a parent who provides adequate supervision. The evidence indicates that the mother provides a better level of supervision of the son than the father.

Home stay students

It is not contested that the mother has home stay students living at her home. This provides her with a source of income.
The mother gave evidence that, if the Public Guardian “had a problem” with her home stay students, she would “get rid of them”.
The presence of a changing population of home stay students in the home is not conducive to a stable environment for the son. It also exposes him to some degree of risk of abuse, in that he is a vulnerable person due to his disability, and there are constantly other persons in the home. In response to a question from Ms Mercer about whether the students were screened, the mother replied that “[t]he students and their families go through various checks before being eligible to study in Australia”. There was no indication of what those checks consisted of.
The mother’s evidence that she is prepared to “get rid of” the students does not assist, as there is no way of requiring her to do this, and there would be nothing to stop her from having students live in the home after a decision to grant her residence had been made.
In the Tribunal’s view, it is not in the son’s best interests to live in an environment where there are two or more home stay students in the mother’s home, who stay for a period of months, at any one time.

Parents’ experience with people with disabilities

The father gave evidence that he had professional experience working with people with disabilities. The mother also gave evidence about her knowledge of the son’s needs as a person with a disability, and her experience looking after him as his primary carer until 2008. Mr Renés expressed the view that the mother understands the son’s developmental needs. The evidence also establishes that the mother uses Makaton with the son.
I am satisfied that both parents have an understanding of the needs of people with disabilities. This factor does not favour either parent.

Effect of change of residence

There was evidence from Mr Renés and the father, which I accept, that the son is well settled in his post-school options program and is involved in a number of stimulating activities in that program. Ms Mercer provided a file note from February 2014 in which she commented on a visit to the post-school options program in which the son was involved in a drama program and “appeared happy”.
The mother provided some information about the programs the son could be involved in if he were living with her in Sydney. As was submitted for the Public Guardian, the information was at a high level of generality.
I find that the son has friends on the Central Coast who he sees from time to time, and that he knows and is known by a lot of the locals. The ex-girlfriend gave evidence that the father did not facilitate the son seeing his friends, and the mother also contended that this was the case. However, in the letter the ex-girlfriend wrote for use in the Guardianship Tribunal, she said there were a lot of people in the Central Coast area who knew and had an interest in the son. Further, the ex-girlfriend did not live with the father, so only saw what happened part of the time. The father gave evidence that the son does have contact with his friends.
I accept the mother’s evidence that, if the son lived with the mother, the mother would ensure that he continued to see his friends on the Central Coast. However, he would see the people in that community who know him less frequently, and would have to adjust to the change from being part of a small community in which he is well-known to living in the inner city where he is not so well-known.
The son is settled in his current residence. A change of residence is very likely to be disruptive. Even though he is familiar with his mother’s home, he would need to start in a new program, and would have to adjust to new permanent living arrangements. He would have to adjust to living in the inner city, having lived for almost his entire life in a small community outside of the city. He would also have to learn to adjust to living away from his brother and father, with whom he has been residing since 2008. This would be a significant change for him.
The father’s evidence was that the son does not adjust well to change and that his progression from high school to the post-school options program was aided by the gradual transition that he made. The mother’s evidence was to the contrary; that the son was good at handling change.
Ms Napier’s evidence was that the demands of the changes and the distress of losing contact with friends would outweigh any benefits of the move. Whilst Ms Napier does not claim to have expertise or experience in treating people with intellectual disabilities, I give her opinion that the move would be distressing and demanding for the son some weight, as her expertise as a clinical psychologist provides some basis for it. My reasons for not placing more weight on it are outlined above. I also take into account her opinion that the son is happy in his current residence.
I give Ms Cleary’s opinion that the move would be “okay” for the son less weight, for reasons given above.
Mr Renés’ opinion was that it would be beneficial to the son to maintain his current lifestyle, and that the son would need a comprehensive transition plan developed within an identified timeframe, if he were to move to Sydney.
The report from the coordinator of the post-school options program (a different member of staff) states that the son is known to have anxiety, will need support when any changes occur to his regular routine and that he does not like sudden changes in his routine. This report was prepared as part of the normal procedures of the post-school options program, not for evidence in these proceedings. There is no reason to doubt its accuracy.
The evidence that the son finds changes to his routine stressful is more persuasive that the evidence to the contrary. A change of residence would involve very significant changes to the son’s routines and living arrangements which would be stressful and demanding for the son. His welfare and interests would be adversely affected by such a change.

Conclusion as to son’s welfare and interests

The evidence that the father leaves the son at home with his brother for 40 minutes at a time while drinking at the end of the street is of some concern. This is not, as I have found, in the son’s interests or conducive to his welfare. However, the evidence does not establish that the degree of risk to which the son is exposed in this situation is high.
It is not in the son’s interests to live with a parent with the father’s history of fraud and dishonesty, or with his lack of insight into his own failings, because it indicates that the father may not communicate truthfully or accurately about the son’s situation to persons such as the Public Guardian or the mother. This may mean that certain matters concerning the son are not disclosed. However, the numerous accounts of him appearing happy and comfortable with the father suggest that they have a good relationship and that he is generally well looked after.
The son is happy in his current residence, his current community and his current post-school options program and a change would be very disruptive for him. There is evidence that he experiences anxiety when subject to change and does not deal with change well. I am persuaded that a move to Sydney would be very stressful for the son, in a number of different ways.
On balance, I am satisfied that the son’s interests and welfare are better served by remaining with the father than by a change of residence to live with the mother.

Balancing of Principles

Having considered the application of the principles in s 4 of the Guardianship Act 1987, I find that, taken as a whole, they favour the son maintaining his current residence. I have given paramount consideration to the son’s welfare and interests and, for the reasons above, they are best served by him living with the father. It is also more likely that this decision will preserve family relationships, in that the father is less likely to be critical of the mother in the son’s presence than the reverse.
The main disadvantages of the decision are that the son will not have the benefit of the better supervision his mother offers, and will not be encouraged to use Makaton to the same degree. These considerations are not to be dismissed lightly. However, in the Tribunal’s view, these factors are not sufficient to outweigh the considerable disadvantages to the son in moving away from a home in which he is happy and settled, a community in which he has lived for most of his life and a day program in which he is also happy and settled.
For these reasons, I affirm the Public Guardian’s decision.

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

[2015] NSWCATAD 60

31 March 2015