BRN

[2015] NSWCATGD 43

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

BRN [2015] NSWCATGD 43

Hearing dates:

25 November 2015

Date of orders:

25 November 2015

Decision date:

25 November 2015

Jurisdiction:

Guardianship Division

Before:

J Currie, Senior Member (Legal)
S Taylor, Senior Member (Professional)
D Sword, General Member (Community)

Decision:

Application for financial management order dismissed under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW), on the ground that it considered the proceedings to be misconceived and lacking in substance.

Application for guardianship order dismissed.

Catchwords:

REVOCATION OR VARIATION OF FINANCIAL MANAGEMENT ORDER – whether application should be summarily dismissed – multiple applications for review by same applicant – whether proceedings frivolous or vexatious – no change in circumstance or new facts – application misconceived and lacking in substance – dismissed

 

GUARDIANSHIP – person subject of the application alcoholic – whether incapacity fluctuating condition – assistance from family – application dismissed

  PRACTICE AND PROCEDURE – applicant decided to leave hearing – whether Tribunal should continue in her absence – best interests – regard to written submissions

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), s 55(1)(b)
Guardianship Act 1987 (NSW), ss 3, 3(2), 14(2), 25O, 25P(1), 25P(2) Div 2, Pt 3A
Interpretation Act 1987 (NSW), s 21C

Cases Cited:

IF v IG [2004] NSWADTAP 3

Category:

Principal judgment

Parties:

To the application for revocation or variation of the financial management order:

 

Mr BRN (subject person)
Ms KAQ (appointed financial manager)
Ms HBT (applicant)
The NSW Trustee and Guardian

 

To the guardianship application:

  Mr BRN (subject person)
Ms HBT (applicant)
Ms KAQ (person have the care of Mr BRN)
The Public Guardian

Representation:

NIL

File Number(s):

54279

Publication restriction:

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

REASONS FOR DECISION

APPLICATION FOR REVOCATION OR VARIATION OF A FINANCIAL MANAGEMENT ORDER AND GUARDIANSHIP APPLICATION

What the Tribunal decided

Financial Management

1. The Tribunal decided to dismiss the application under s 55 of the Civil and Administrative Tribunal Act 2013 (NSW), on the ground that it considered the proceedings to be misconceived and lacking in substance. The Tribunal also noted that had it not dismissed the application on that ground, it would have refused to conduct a review of the financial management order under s 25O of the Guardianship Act 1987 (NSW), as it was of the opinion that the application did not disclose grounds that warrant a review and that the Tribunal has previously reviewed the order.

Guardianship

2. The Tribunal decided to dismiss the guardianship application.

Background

3. Mr BRN is a 42-year-old man who lives in private rental accommodation in Regional NSW. He has chronic alcoholism and is reported to have alcohol-related brain damage. He is currently being case-managed by a community mental health service provider in Regional NSW.

4. Mr BRN has three siblings. They are Ms KAQ, Mrs DMT and Mr HWN. Ms KAQ and Mrs DMT live in Regional NSW and Mr HWN lives in Victoria.

5. Ms HBT described herself in previous proceedings before the Tribunal as a friend of Mr BRN. In the current proceedings she described herself as Mr BRN’s “partner”, but Mr BRN denied that she was his partner.

6. There have been a number of proceedings concerning Mr BRN in the Guardianship Tribunal and the Guardianship Division of this Tribunal. On 31 October 2013 the Guardianship Tribunal made a financial management order for Mr BRN, appointing his sister Ms KAQ as his financial manager, subject to the authority and direction of NSW Trustee and Guardian. On 14 February 2014 this Tribunal made a guardianship order for Mr BRN, appointing his sisters Ms KAQ and Mrs DMT as his joint guardians and his brother Mr HWN as his alternate guardian for six months, with the decision-making functions of health care, medical and dental consent, and services. On 14 August 2014 the Tribunal reviewed that order and allowed it to lapse.

7. In April 2015, NSW Trustee and Guardian applied to the Tribunal to review the appointment of Ms KAQ as her brother’s financial manager. The main concern related to Ms KAQ’s failure to lodge the 2013/14 accounts. That application was heard on 26 June 2015. At the hearing, NSW Trustee and Guardian did not press its case for Ms KAQ to be replaced and indicated that it accepted her explanation for the technical failure to submit the accounts. On that occasion, Mr BRN strongly supported the retention of his sister Ms KAQ as his financial manager. The Tribunal decided to confirm the appointment of Ms KAQ.

8. Then two applications were made by Ms HBT. The first was on 31 August 2015 when Ms HBT made an application for the appointment of a guardian for Mr BRN. The second was an application received by the Tribunal on 29 September 2015. This was a further application for review of the financial management order, seeking to replace Ms KAQ as financial manager.

9. The application for replacement of financial manager was heard on 12 October 2015; that is, approximately six weeks prior to the present hearing. At that hearing the Tribunal confirmed the current financial management order; that is, Ms KAQ was confirmed as financial manager. The Tribunal also adjourned the hearing of Ms HBT’s guardianship application.

10. Ms HBT subsequently indicated to the Tribunal Case Officer responsible for this matter that she was considering either lodging an appeal against the Tribunal’s orders made on 12 October 2015 or lodging a further application for review of the financial management order. On 20 November 2015, that is, 5 days prior to the present hearing, the Tribunal received from Ms HBT an application to review or to revoke the financial management order. Ms HBT’s application made it clear that she sought revocation of the order on the grounds that that would be in the best interests of Mr BRN, on the basis that she would take over responsibility for managing Mr BRN’s affairs.

11. The purpose of the Tribunal’s proceedings at Regional NSW on 25 November 2015 was therefore to consider Ms HBT’s application to review or revoke the financial management order and to consider the guardianship application which had been made by Ms HBT and adjourned on 12 October 2015.

Parties and witnesses

12. The Appendix to these Reasons identifies the parties to each of the two applications and the witnesses who participated in the hearing. [Appendix removed for publication]

ISSUES FOR DETERMINATION BY THE TRIBUNAL

A. Application concerning the financial management order

Preliminary issues: should the application be dismissed under s 55 of the Civil and Administrative Tribunal Act and should the Tribunal refuse to review the financial management order under s 25O of the Guardianship Act?

13. The Tribunal undertook a preliminary consideration of the application made by Ms HBT and her accompanying written submissions. These documents sought revocation of the financial management order and sought the replacement of Ms KAQ as financial manager, notwithstanding that only approximately six weeks had expired since the Tribunal’s confirmation of the financial management order and the appointment of Ms KAQ.

14. The Tribunal concluded from its preliminary examination that there was a real issue as to whether or not the application should be dismissed under s 55 of the Civil and Administrative Tribunal Act and whether or not the Tribunal should exercise its discretion under s 25O of the Guardianship Act to refuse to conduct the review. In the Tribunal’s view Ms HBT should be invited to make oral submissions at the hearing to address this issue.

15. Section 55 of the Civil and Administrative Tribunal Act provides relevantly as follows:

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

…(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

16. Section 25O of the Guardianship Act provides relevantly as follows:

...the Tribunal may refuse to review the financial management order on an application under section 25 R, if:

(a) in the opinion of the Tribunal, the application does not disclose grounds that warrant a review, or

(b) the Tribunal has previously reviewed the order.

17. It followed that there were preliminary issues which required determination prior to the consideration of any other issues. They were whether the Tribunal considered that the application should be dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act and whether it should refuse to review the financial management order under s 25O of the Guardianship Act.

Substantive issues to be determined if the preliminary issues are resolved in the negative

18. This was an application for revocation of a financial management order, under Division 2 of Part 3A of the Guardianship Act. When the Tribunal deals with such an application, it is required to review the financial management order. Under s 25P(1) of the Act the Tribunal, having reviewed the order, must vary, revoke or confirm it. However, under s 25P(2), the Tribunal may revoke the order only if it is satisfied that the protected person is capable of managing his or her affairs, or it considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her own affairs).

19. Accordingly, the issues which had to be decided by the Tribunal were:

• Is Mr BRN capable of managing his affairs?

• Would it be in the best interests of Mr BRN for the existing financial management order to be revoked?

• If there are insufficient grounds to revoke the existing financial order to be revoked, should any variations be made to it?

Guardianship application

20. The questions which had to be decided by the Tribunal were:

• Is Mr BRN someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions?

• Should the Tribunal make a guardianship order?

• If an order is to be made, who should be the guardian and what functions and authorities should the guardian have?

• How long should the guardianship order last?

THE TRIBUNAL’S CONSIDERATION AND DETERMINATION OF THE ISSUES

FINANCIAL MANAGEMENT

Preliminary issues: should the application be dismissed under s 55 of the Civil and Administrative Tribunal Act and should the Tribunal refuse to review the financial management order under s 25O of the Guardianship Act?

21. The Tribunal explained to the parties the operation and effect of s 55 of the Civil and Administrative Tribunal Act and s 25O of the Guardianship Act.

The views of the applicant, Ms HBT

22. The Tribunal asked Ms HBT, the applicant, to explain her application and the justification for the Tribunal hearing it, by informing the Tribunal what she alleged to have changed in the period since the Tribunal’s orders on 12 October 2015 in relation to the management of Mr BRN’s affairs under the existing financial management order.

23. In response, Ms HBT referred initially to many of the issues which had been raised prior to the Tribunal’s orders of 12 October 2015 and considered at its hearing of that date and, in some cases, at previous hearings. These included matters which she set out in a statement received by the Tribunal on 31 August 2015 and matters referred to in the Tribunal’s Reasons for Decision of 14 February 2014 and 26 June 2015.

24. When reminded that she would have to demonstrate that there had been some change to Mr BRN’s position, or to the way in which his financial affairs were being managed under the current order, Ms HBT asserted that she was now managing his financial affairs through Centrelink and that was a substantial change. Mr BRN denied that this was so, and asserted that he did not complete the necessary paperwork for Centrelink to allow this to happen. The Tribunal notes that it has not been established that Ms HBT had any authority to deal with Centrelink. Ms HBT then altered her contention to say that the change consisted of the fact that Mr BRN had lodged some application paperwork with Centrelink.

25. Ms HBT also asserted that new developments included the fact that she had taken Mr BRN to a new doctor for a prescription of Valium and that he had recommenced drinking. When pressed, Ms HBT was unable to expand on how these developments had affected the way in which Mr BRN’s financial affairs were being managed under the current order.

26. Ms HBT also invited the Tribunal to read and rely on her written submissions. The Tribunal had read and examined all the written material made available by Ms HBT. It was unable to locate within that material any evidence (whether or not corroborated) or any assertion of substance and relevance which had not been raised prior to the existing order being made, or which affected or related directly to the way in which Mr BRN’s financial affairs were being managed under the current order. The Tribunal advised Ms HBT of these conclusions.

27. Ms HBT then contended that the operation of the current financial management order meant that money was not readily available to Mr BRN for him and for Ms HBT herself as his partner to allow them to participate in certain activities. The Tribunal noted that in a written statement sent by email to the Tribunal on 8 November 2015 Ms HBT had asserted as follows:

While [Mr BRN] cannot make decisions, it is clearly to our betterment if I manage his finances.

28. Ms HBT was asked to explain how it might be to her benefit if she were given the authority to manage Mr BRN’s finances. She was initially evasive but then conceded that she would include as a benefit the trips which she and Mr BRN had in the past taken together. She added that she had lost the ability to buy Mr BRN gifts, although she subsequently conceded that the gifts were purchased from her own money and she would in those circumstances sometimes ask Ms KAQ as financial manager for a refund.

Mr BRN’s own views

29. Mr BRN told the Tribunal that nothing had changed during the last six weeks since the Tribunal’s last order. He said he was very satisfied that his sister, Ms KAQ, was acting as his financial manager and he believed that that was the best solution for him. He added that he had made this same assertion at each of the last three hearings and he could not understand why he had to keep returning to the Tribunal to re-assert it. Mr BRN also stated that he did not believe that he was eligible for the disability support pension and did not wish to apply for it. Ms HBT had acted on her own initiative in that regard, and without authority, so far as he was concerned.

30. Mr BRN said that he did not wish to have Ms HBT managing his financial affairs and that he was very satisfied with his sister Ms KAQ’s actions as his financial manager. He believed that he continued to need a financial manager, and that his interests would best served by having his sister continue in that role.

31. He described his relationship with Ms HBT as: “on and off for four years”. He said that this included a period when the relationship was terminated because Ms HBT had another male partner. He said that his relationship with her was complicated and he did not know how to describe it, but that she was certainly not his partner. When the Tribunal suggested that “occasional friend” might be a better description, Mr BRN agreed that this was so.

The views of Ms KAQ, appointed financial manager

32. Ms KAQ told the Tribunal that she believed she should continue as her brother’s financial manager, that she had complied in all respects with her duties and obligations in that office and that no relevant fact or circumstance had changed in the period of approximately six weeks since the Tribunal’s previous orders. Ms KAQ indicated that she believed that she was fully compliant with the authorities and directions of NSW Trustee and Guardian.

The views of Mr HWN, brother of Mr BRN

33. Mr HWN confirmed that he could think of no fact or circumstance which had changed in the six weeks since the Tribunal’s last orders relating to the management of his brother, Mr BRN’s affairs. Mr HWN said that he believed that management of his brother’s affairs by their sister Ms KAQ was progressing satisfactorily. He asserted that Mr BRN’s problems were brought about entirely by his consumption of alcohol, not by the existence of a financial management order, or the way in which Ms KAQ was acting as financial manager, which he believed to be proper.

The Tribunal’s determination of this issue and dismissal of the application

34. The Tribunal accepted the evidence and contentions of Mr BRN as being well-considered, reliable, and persuasive. It also accepted the views and contentions of his siblings, being the existing financial manager, Ms KAQ, and his brother, Mr HWN, as reliable and persuasive. The Tribunal found that the applicant Ms HBT, although given every reasonable opportunity to do so, had been unable to demonstrate any fact or circumstances relating to Mr BRN’s affairs, or the operation of the existing financial management order which had changed in the period of approximately six weeks since the Tribunal’s last orders which had effectively confirmed the authority of Ms KAQ as financial manager, as made on 12 October 2015.

35. The Tribunal noted that prior to the hearing, Ms HBT had indicated her intention either to make the current application or to lodge an appeal against the orders made on 12 October 2015. Ms HBT had ample opportunity to make such an appeal. The Tribunal Case Officer gave her adequate information on the process of lodging an appeal, but she has not lodged an appeal. The doctrine of res judicata (that is, the doctrine that a judicial or tribunal decision is operative and conclusive until reversed, for example on appeal) has clear application on these facts. There can be no re-hearing in the absence of new facts or issues.

36. The Tribunal therefore regards the application is misconceived and lacking in substance.

37. It follows that the application will be dismissed under s 55 of the Civil and Administrative Tribunal Act.

38. The Tribunal also records that had it not found that the action was misconceived and lacking in substance and on that basis should be dismissed, it would have exercised its discretion under s 25O of the Guardianship Act to refuse to review the financial management order. This is because in the opinion of the Tribunal the application does not disclose grounds that warrant a review and additionally because the Tribunal has previously reviewed the order. The latest review was a mere six weeks before this hearing and, as discussed above, the applicant Ms HBT had been unable to demonstrate any fact or circumstances relating to Mr BRN’s affairs or the operation of the existing financial management order, which had changed in the period since the Tribunal’s last orders.

39. The Tribunal noted that the other parties to the proceedings, and in particular, Mr BRN himself and Ms KAQ appear to have been put to considerable time and trouble to respond to the current application. In a letter of submission to the Tribunal dated 7 October 2015 (that is, prior to the last hearing), Ms KAQ, who is a Mental Health Clinician at the Community Mental Health Centre in Regional NSW, ended with the following plea:

I beg the Guardianship Tribunal to look at how [Ms HBT] can be stopped from applying relentlessly, for Guardianship not only over [Mr BRN], but other people, she has tried to gain Guardianship over as well. This has taken its toll on all of our family, not to mention [Mr BRN]’s well-being.

40. Ms KAQ reiterated those sentiments at the current hearing.

41. Following discussion of these matters with the parties at the conclusion of the hearing of this application, the Tribunal noted that, in light of the dismissal of the application on the above grounds, Mr BRN and Ms KAQ would consider an application for costs in respect of the application.

GUARDIANSHIP APPLICATION

Preliminary issue: Is Ms HBT the spouse of Mr BRN?

42. At the commencement of the hearing, Ms HBT asserted that she was the “partner” of Mr BRN. The Tribunal therefore believed it proper to consider whether Ms HBT, who is already a party to the proceedings by virtue of being the applicant, should in addition be considered the spouse of Mr BRN.

43. The meaning of the term “spouse” is set out in s 3 of the Guardianship Act. It means a husband or wife or a de facto partner of the person concerned. The term “de facto partner” is further defined in s 21C of the Interpretation Act 1987 (NSW). That section provides relevantly that for the purposes of any Act or instrument a person is in a “de facto relationship” if:

1. they have a relationship as a couple living together; and

2. they are not married to one another or related by family.

44. It will be noted that an important element of the relationship is the fact that the people concerned have a relationship as a couple living together. Mr BRN and Ms HBT do not live together, as a couple or otherwise. As the Tribunal understands it, they have never done so. At the hearing, Mr BRN was at pains to emphasise that, however else it should be described, his relationship with Ms HBT was not that of a “partner”.

45. The Tribunal found Mr BRN’s evidence to be frank, consistent, and reliable. It found much of Ms HBT’s evidence to be prevaricative in many instances. For those reasons the Tribunal preferred the account of these matters given by Mr BRN to the version given by Ms HBT and on that basis it found that Ms HBT is not the spouse of Mr BRN for the purposes of the Guardianship Act in relation to this application.

Continuation of the hearing in the absence of the applicant, Ms HBT

46. The Tribunal commenced its consideration of the guardianship application with an explanation to the participants of the issues which needed to be decided. After this explanation had commenced, and after the Tribunal had announced its decision in relation to the financial management order and costs matters had been canvassed, Ms HBT announced that she was leaving the hearing. She thereupon left the hearing room and, so far as the Tribunal could ascertain, left the premises at which the hearing was being held. She provided no explanation for her actions.

47. Normally it is important for the applicant to participate in the hearing of any application. However, where the hearing of an application has commenced, as here, and the applicant then decides to absent himself or herself, it is a matter for the Tribunal to determine whether the welfare and interests of the subject person, here, Mr BRN, would best be satisfied by continuing in the absence of the applicant, or alternatively adjourning the hearing to another date so that attempts might be made to have the applicant continue their participation.

48. The Tribunal was satisfied that the bringing of this guardianship application raised issues which, in fairness to Mr BRN as the subject person, should be determined as soon as possible and that his welfare and interests would best be preserved and protected by proceeding with the hearing in the absence of Ms HBT.

49. Additionally it was only fair that these matters should be determined at this hearing, given the number of occasions on which Mr BRN had been required to respond to guardianship or financial management applications, most of them initiated by Ms HBT.

50. An additional factor in this case was the fact that Ms HBT had provided lengthy and detailed written submissions to the Tribunal prior to the hearing to supplement her applications. The written submissions lodged by her in support of the application for review of the financial management order contained material relevant to her guardianship application. To that extent, Ms HBT’s views had been expressed and her position was known to the Tribunal. Of course, if the hearing proceeded in her absence, she would not have the opportunity to hear the views of the other parties or to respond to them. But she placed herself in that position. She herself had made the decision to leave the hearing before its conclusion.

51. For all these reasons the Tribunal was satisfied that the hearing of the guardianship application should proceed, notwithstanding the absence of the applicant, Ms HBT.

Is Mr BRN someone for whom the Tribunal could make a guardianship order because he has a disability which prevents him from being able to make some important life decisions?

The legal principles and tests

52. Under the Guardianship Act, the Tribunal may make a guardianship order only for someone who is "a person is need of a guardian." Section 3 of the Guardianship Act defines that phrase to mean:

a person who, because of a disability, is totally or partially incapable of managing his or her person.

53. The concept of "a person who has a disability" is widely defined in s 3(2) to mean a person who is:

1. intellectually, physically, psychologically or sensorily disabled;

2. of advanced age;

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

4. otherwise disabled;

and who, by virtue of that fact, is restricted in one or more major life activities to such an extent that he or she requires supervision or social habitation.

54. Significantly then, the existence of a disability as the concept is widely defined in paragraphs (a) to (d) as cited above is not sufficient of itself to ground the making of a guardianship order. Not everyone who has a disability is prevented by their disability from making important decisions. So, it is also essential, in order for the Tribunal to have any power to consider a guardianship order, that it be established that the disability restricts the subject person in one or more major life activities to such an extent that he or she requires supervision or social habitation. (See for example: IF v IG [2004] NSWADTAP 3 (13 February 2004). This additional step is sometimes referred to as the "capacity" test".

55. The capacity test is commonly applied as at the date of the hearing. The Tribunal must find that the person meets the statutory definition of person in need of a guardian as a pre-condition to engaging in the second step of the process; that is, deciding whether a guardianship order should be made in the particular case, including consideration of the factors in s 14(2) of the Guardianship Act: IF v IG [2004] NSWADTAP 3 (13 February 2004), [25]). So, if the subject person is found not to be "a person in need of a guardian", then the guardianship application must be dismissed.

Medical and clinical reports

56. The written medical and clinical evidence included a health professional report form dated 7 October 2015 from Dr Z, a general practitioner for Mr BRN at a medical centre in Regional NSW. Dr Z had personally known Mr BRN for only two months prior to his report, but it appears that Mr BRN had been a patient of that medical centre since about 2012 and it is clear that Dr Z relied on the centre’s medical records of Mr BRN in completing his report.

57. Dr Z’s report indicated, in answer to the short introductory question, that Mr BRN does have a disability, but there was no description in the report as to the nature of the disability. The section of the report headed “brain injury” was initially completed but then crossed out and initialled by Dr Z, who wrote in the margin: “no brain injury”. In the section of the report in which the professional person is required to state whether the subject person’s disability affects their capacity to make informed decisions about certain matters, the doctor indicated that Mr BRN’s disability did not affect his capacity to make informed decisions about his accommodation, care, services, or health or medical care. However, he reported that the undescribed disability affected Mr BRN’s capacity to make informed decisions about his financial affairs.

58. A further health professional report form, dated 9 October 2015 was received from Mrs Y, an accredited counsellor and currently the drug and alcohol clinician for Mr BRN. Mrs Y has treated Mr BRN for three years and prior to her report last saw him on 2 September 2015, although a colleague also saw Mr BRN on 25 September 2015. In answer to the question as to whether Mr BRN has a disability, Mrs Y responded “no”, but she indicated that he has another disability or medical condition that affects his decision-making capacity, namely a problem with alcohol dependence. She reported that the condition was fluctuating but had improved over the last two years and that Mr BRN had not been hospitalised since Ms KAQ had been his financial manager.

59. Mrs Y responded to the question as to whether Mr BRN’s disability affects his capacity to make informed decisions by asserting that this was so:

only when he is heavily drinking which has only been one serious relapse in the past 12 months … However, he is monitored and interventions occur if this begins.

60. Significantly, Mrs Y, provided the following closing observations:

I am confident that [Mr BRN] is being supported appropriately and thoroughly by his family, especially his sister [Ms KAQ], his new Phams case worker, his drug and alcohol, case worker, some friends and his GP. I believe he has recently made a new commitment to Alcoholics Anonymous meetings.

The views of the applicant, Ms HBT

61. In her written submissions supporting her application for review of the financial management order and in her evidence in the course of the hearing of that review, Ms HBT made much of her qualifications. In her guardianship application received by the Tribunal on 7 September 2015, Ms HBT described herself as “sister of Church”. In her application to review the financial management order, she stated that she had “studied commercial principles and practice, and office procedures at every level” and described herself in section 3.5 as “Sister [Ms HBT].”

62. Because Ms HBT left the hearing shortly after the commencement of the Tribunal’s consideration of her guardianship application, the Tribunal was unable to ascertain the exact qualifications or experience which Ms HBT purports to have.

63. However, to the extent that Ms HBT written submissions and statements at the hearing concerning Mr BRN’s disability and capacity should be considered those of a person with some expertise, the Tribunal does not place substantial weight on them as expert evidence. We do this, firstly, because Ms HBT’s observations and opinions do not appear to have been independently or objectively formed, or based on proper clinical analysis. Ms HBT made it clear that in her view, she was the partner of Mr BRN and her evidence generally amply demonstrated that she had a close emotional bond with Mr BRN. Her views, in so far as they can be considered expert views, do not address the significant matters referred to by the medical and clinical reports referred to above, particularly that of Mrs Y. Ms HBT’s views of the assistance which is offered to Mr BRN by his siblings appears to be heavily influenced by her wish to continue a close emotional relationship with him. She does not address some of the issues raised in the other reports, particularly the specific issue of whether, given adequate assistance and abstinence from alcohol, Mr BRN could currently be regarded as capable of managing his person.

The views of Mr BRN

64. Mr BRN gave a frank, clear, and detailed account of his views. He said he did not think that he needed a guardian and that he was capable of making his own decisions. He conceded that he was an alcoholic, but he said that the significant development over the last year is that when he becomes drunk he knows to take his blood pressure and take other precautions to ensure that he does not seriously prejudice his health. Mr BRN assured the Tribunal that he is compliant with his medication, that he sees his general practitioner every two weeks, and keeps all medical appointments. Mr BRN said that he was attending Alcoholics Anonymous and although he felt that an earlier attempt three years ago to attend their meetings had failed because he did not understand their principles and practices, he now did understand them and would continue to attend. Mr BRN was of the view that with the assistance of his siblings, as well as medical professionals and his acceptance of his alcoholism and his knowledge of how to deal with it, he was capable of making all the decisions which needed to be made.

The views of family members: Ms KAQ and Mr HWN

65. Mr BRN’s sister Ms KAQ told the Tribunal that her brother Mr BRN was quite capable of making his own decisions. Ms KAQ confirmed that she was a registered nurse and assists her brother with detoxification when necessary. She confirmed that she worked in the same hospital as Mrs Y and was acquainted with her, but that she works in a different department. Ms KAQ confirmed that her brother had not been drinking recently, and that she was now taking him regularly to Alcoholics Anonymous, and that he was accepting their services. She described the applicant, Ms HBT, as having been of considerable assistance to her brother in the past, but now she had become in Ms KAQ’s term “an absolute nuisance”. She noted that Ms HBT had been banned from attendance at the surgery of her brother Mr BRN’s general practitioner.

66. Mr HWN told the Tribunal that his brother did not have a disability and was capable of making all his day-to-day decisions. He said that all his family members were anxious to find ways of allowing him to live a normal life notwithstanding his alcoholism, but the appointment of a guardian would not assist in this and there was no need for it.

The Tribunal’s analysis and conclusions as to this issue

67. For the reasons stated under the previous heading, the Tribunal placed considerable weight on the observations and opinions of Mrs Y, and (to a slightly lesser extent because of the lack of clarity in his report) those of Dr Z. It preferred their views to the evidence given and submissions made by the applicant Ms HBT on this issue. The Tribunal accepted the views of Mr BRN himself as being reliable and persuasive and gave similar weight to the clear views of Ms KAQ and Mr HWN.

68. On the basis of their evidence, the Tribunal was satisfied that with the level of assistance he is presently receiving from family members and, given the substantial degree of insight into his condition which Mr BRN himself demonstrated, he is capable of making decisions on his own behalf and is not prevented from making necessary decisions because of any disability. The Tribunal makes a formal finding that Mr BRN is not restricted by reason of any disability in one or more major life activities to such an extent that he requires supervision or social habitation.

69. It follows that the guardianship application must be dismissed.

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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: 03 March 2016