C v C

[2001] QSC 126

SUPREME COURT OF QUEENSLAND

CITATION:              C v C [2001] QSC 126

PARTIES:                 C

(applicant)

v

C

(first respondent)

and

ADULT GUARDIAN

(second respondent)

FILE NO:                  S2225/01

DELIVERED ON:    2 May 2001

DELIVERED AT:     Brisbane

HEARING DATE:     15 March 2001

JUDGE:  Mullins J

ORDER:1.  Application for leave to appeal against the decision of the Guardianship and Administration Tribunal made on

23 February 2001 is dismissed.

2.  Each party is to bear the party's costs of the application.

CATCHWORDS:       GUARDIANS – Guardianship and Administration Tribunal – application  for  leave  to  appeal  decision  of  Tribunal  – applicant sought guardianship of adult with impaired capacity

– whether error in Tribunal's fact finding process.

Guardianship and Administration Act 2000

Uniform Civil Procedure Rules 1999

Builders' Licensing Board v Sperway Constructions (Syd) Pty

Ltd (1976) 135 CLR 616

K v K [2000] NSWSC 1052 (3 November 2000)

S v S [2001] NSWSC 146 (9 March 2001) COUNSEL: Applicant in person

AC Wordsworth (solicitor) for the first respondent

D Barrett (solicitor) for the second respondent

SOLICITORS:          Applicant in person

McCullough Robertson for the first respondent

Office of the Adult Guardian for the second respondent

[1]     MULLINS J:   The applicant is the mother of the adult with impaired capacity for matters who is the focus of this application and to whom I shall refer as John.  The

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first respondent ("the respondent") is the father of John.  The respondent was appointed committee of the person of John by this Court on 14 September 1993. Each of the applicant and the respondent made an application on 24 July 2000 and

23 October 2000 respectively to the Guardianship and Administration Tribunal

("Tribunal") pursuant to the Guardianship and Administration Act 2000 ("Act") for appointment as the guardian of John.

[2]     On   1   November   2000   the   Tribunal   comprising   three   members   heard   the applications, set aside the appointment of the respondent as committee of the person of John and ordered that the respondent be appointed guardian for John for the personal matters specified in the order which included where and with whom John lives, whether John works and, if so, the kind and place of work and the employer, what education or training John undertakes and day-to-day issues such as diet and dress.  The Tribunal provided extensive written reasons for the decision.  Additional orders made by the Tribunal in relation to the respondent's guardianship were:

"3.The guardian is required to abide by the general principles and the health care principle.

4.The guardian is to advise the Tribunal if there is any change to his appropriateness and competence to act.

5.Unless  the  Tribunal  orders  otherwise,  this  order  remains current for three (3) years."

[3] The reference to "general principles" and the "health care principle" is a reference to those specified principles set out in Schedule 1 of the Act. Section 11(1) of the Act provides that a person or other entity who performs a function or exercises a power under the Act for a matter in relation to an adult with impaired capacity for the matter must apply the general principles stated in Schedule 1 and, for a health matter, the health care principle stated in Schedule 1.

[4]     As  one  of  those  general  principles  is  an  adult's  right  to  confidentiality  of information about the adult, it is appropriate that the publication of these reasons should not identify the applicant, respondent or John.  When quoting from orders or documents in these reasons I will use the expressions Mrs C, Mr C and John for the names of the applicant, respondent and John respectively and will otherwise avoid referring to the names of persons.

[5]     The applicant, the respondent, John and representatives of the Public Trustee of

Queensland and the Adult Guardian were present at the hearing on 1 November

2000  as  active  parties.    In  addition  the  respondent's  wife  was  present  as  an interested party, as were other members of the respondent's family, namely his mother,  a  brother  and  a  sister.    Also  present  were  the  manager  of  Endeavour Industries where John works in a sheltered workshop type setup, a friend of the applicant and another representative from the Public Trustee.

[6] Under section 138 of the Act, the Tribunal is empowered to make recommendations it considers appropriate, when an application has been made to the Tribunal. The following recommendations were made by the Tribunal when making its orders on

1 November 2000:

"a.That  Mr  C  initiates  whole  of  life  planning  for  John  to include future work and future accommodation options;

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b.That Mr C ensures that the current visiting arrangements whereby John spends alternate weekends with his mother, Mrs C, continue in accordance with John's wishes."

[7] Section 164(1) of the Act provides that an eligible person may appeal against a Tribunal decision in a proceeding to the Supreme Court. The definition of "eligible person" is set out in section 164(3) of the Act. As the applicant was the applicant in the proceeding before the Tribunal, she was an eligible person for the purpose of appealing against the Tribunal's order made on 1 November 2000 in respect of the appointment of the respondent as guardian for John. Section 164(2) of the Act provides:

"The court's leave is required for an appeal except for an appeal on a question of law only."

[8]     The time for appealing is regulated by the  Uniform Civil Procedure Rules  1999

("UCPR"). Part 3 of Chapter 18 of the UCPR applies to appeals to a court other than the Court of Appeal and therefore applies to an appeal to this Court. Except where specific provision is made in Part 3 of Chapter 18 and except in respect of specified rules of Part 1 of Chapter 18 which are expressly excluded under rule 785 from applying to appeals under Part 3 of Chapter 18, Part 1 of Chapter 18 applies to appeals under Part 3 with necessary changes. That means that rule 748 of the UCPR which requires a notice of appeal to be filed within 28 days after the date of the decision appealed from (unless the Court orders otherwise) applies to the appeal to this Court from a Tribunal decision.  Where leave of the Court is required, rule

786(5) of the UCPR requires that the proceeding must be commenced by filing a notice of appeal subject to leave in the approved form.  The applicant neither filed a notice of appeal nor sought leave of this Court to appeal against the order made on

1 November 2000 within the requisite period of 28 days.

[9] Instead on 4 December 2000 the applicant applied pursuant to section 29 of the Act to the Tribunal to conduct a review of the appointment of the respondent as the guardian of John. Section 29 of the Act provides:

"The  tribunal  may  review  an  appointment  of  a  guardian  or administrator for an adult at any time on its own initiative or on the application of an interested person for the adult."

[10]     The manner in which the Tribunal conducts the review and the orders which it can make  as  a  result  of  the  review  are  regulated  by  section  31  of  the  Act  which provides:

"31.(1)   The tribunal may conduct a review of an appointment of a guardian or administrator (an "appointee") for an adult in the way it considers appropriate.

(2)    At the end of the review, the tribunal must revoke its order making  the  appointment  unless  it  is  satisfied  it  would  make  an appointment if a new application for an appointment were to be made.

(3)   If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either-

(a)         continue its order making the appointment; or

(b)change  its  order  making  the  appointment,  including,  for example, by-

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(i)        changing the terms of the appointment; or

(ii)       removing an appointee; or

(iii)      making a new appointment.

(4)     However,  the  tribunal  may  make  an  order  removing  an appointee only if the tribunal considers-

(a)         the appointee is no longer competent; or

(b)         another person is more appropriate for appointment.

(5)  An appointee is no longer competent if, for example-

(a)a relevant interest of the adult has not been, or is not being, adequately protected; or

(b)the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power; or

(c)         the appointee has otherwise contravened this Act.

(6)   The tribunal may include in its order changing or revoking the appointment of an administrator a provision as to who must pay the fee payable to the registrar of titles for advice of the change or revocation."

[11]     A review of the Tribunal's order made on 1 November 2000 was heard on 23

February 2001 by Ms A Lyons who is the President of the Tribunal.  At the review hearing the applicant, the respondent and his wife were present.  Also present as interested  parties  were  five  persons  who  wished  to  provide  support  for  the applicant.    Neither  the  Adult  Guardian  nor  the  Public  Trustee  of  Queensland participated in the review hearing, even though they had been notified of it.  The respondent advised the Tribunal that, as the current guardian for John, he had decided not to bring him to the review hearing, as his views had been fully put to the Tribunal at the previous hearing and he believed that it was unsettling for him to be put through yet another hearing.  The applicant was not aware before the review hearing that John would not be present.  The applicant's submission at the review hearing was that there should be joint guardianship given to the respondent and her.

[12]     The Tribunal was satisfied as a result of hearing the review application that the order made on 1 November 2000 should be continued on the same terms and for the same period as that order.  The Tribunal therefore made orders continuing the orders made on 1 November 2000.  The Tribunal noted the recommendations made at the same time as the orders of 1 November 2000.  Written reasons for the decision of 23 February 2001 have been issued by the Tribunal.

[13]     By her originating application filed on 9 March 2001 (rather than a notice of appeal), the applicant formally seeks leave of this Court to appeal a decision of the Tribunal.  Although the application does not specify which decision of the Tribunal is the subject of the application for leave to appeal, the reasons set out in the application  for  seeking  leave  (read  in  conjunction  with  the  written  points  of argument (Exhibit 1) relied on by the applicant at the hearing of the application for leave on 15 March 2001) suggest that it is the Tribunal's decision of 23 February

2001 which is the subject of the application.   The reasons set out in the applicant's application are:

"The tribunal failed to investigate fully the fact that whilst not in the company of his father Mr C, John is adamant that he does wish to

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improve his quality of life and his lifestyle to include his mother Mrs

C

I Refer to the Guardianship and Administration Act 2000

Chapter 7 – Tribunal Proceedings Part 4 Proceeding Page 83 Section

130

The Tribunal at a Review hearing have refused an application of mine for joint guardianship
The application was reasonable, necessary and much needed for my son, 23.2.01."

[14]     The applicant has sworn three affidavits in support of her application for leave. They were sworn respectively on 5, 6 and 12 March 2001.  The first of those affidavits is not on the Court file and has not been able to be located in the Registry. The copy of that affidavit provided at the hearing together with the CD referred to in paragraph 3 of that affidavit will be Exhibit 4.  In each of those three affidavits the applicant expressly states that she is seeking leave to appeal the decision of the Tribunal's order of 1 November 2000.  The applicant has not expressly sought an extension of time in which to seek leave to appeal against the order made on 1

November  2000.    For  the  purpose  of  determining  the  application  for  leave  to appeal,  it  must  be  clear  what  decision  of  the  Tribunal  is  the  subject  of  the application.

[15]     Notwithstanding the statements made in the applicant's affidavits, I conclude from the terms of the applicant's application and her points of argument together with the fact that the only decision of the Tribunal in respect of which the applicant can apply for leave to appeal without seeking an extension of time is the decision of 23

February 2001 that it is the decision of the Tribunal of 23 February 2001 which is the subject of this application.  The applicant has foreshadowed in her points of argument that if successful in obtaining leave to appeal that what she will be seeking in the Supreme Court is joint guardianship.  It was only at the review hearing that the applicant submitted joint guardianship was appropriate.  Although I infer from the applicant's material that the applicant by seeking leave to appeal against the refusal of the Tribunal on 23 February 2001 to vary the order made on 1

November 2000 is in substance seeking to impugn the order made on 1 November

2000, on this application I will consider whether leave to appeal should be granted in respect of the Tribunal's decision of 23 February 2001.

[16]     It is arguable that the Tribunal's review decision of 23 February 2001 displaced the decision of 1 November 2000 and that therefore the decision of 1 November 2000 was no longer able to be the subject of an appeal.  It is not necessary to dispose of that argument, in view of my conclusion that it is the decision of 23 February 2001 which is the subject of the applicant's attack in this application.

[17]     The applicant served the respondent and the Adult Guardian with the application and both appeared on the hearing of the application.  Ms Barnett on behalf of the Adult Guardian indicated that the Adult Guardian was appearing in order to assist the Court.  After the hearing Ms Barnett sent a letter to my Associate drawing attention to the rules in the UCPR covering the time for appealing from the Tribunal to the Court.  That letter will be Exhibit 5.

Issues on the application for leave to appeal

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[18]     It was accepted by the parties on the hearing of the application that leave was required by the applicant to pursue the appeal.

[19] Section 67(1) of the Guardianship Act  1987 (NSW) which is legislation similar to the Act also provides for appeal as a right on a question of law but with the leave of the Supreme Court on any other question from any decision of the Guardianship Tribunal of New South Wales. Young J stated in K v K [2000] NSWSC 1052 (3

November 2000):

"14  As I said in  Re  R,  it  is  probably  inaccurate  to  assess  the Tribunal as being a specialist tribunal, but it is certainly a tribunal to which the legislature has committed the primary working out of the Guardianship Act and whose decisions are to be given great weight.

When the Court does review a decision of the tribunal, it does, as

Lord  Denning  said  in  Retarded  Children's  Aid  Society  v  Day

[1978] ICR 437, 443, deal with the matter broadly and fairly and does not interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not gone wrong in law. However, a function of the Court is to ensure that guidance on the proper interpretation of the law is given to the Tribunal and the parties appearing before it so that the Tribunal is integrated into the machinery of justice applying the law of incapable persons as administered by the Court. Thus, there will not be inconsistent rulings between tribunals differently constituted, or between the Tribunal and the Court.

15 It would seem to me that s67 of the Guardianship Act operates so

that   broad   questions   of   administration   and   policy   and   the applicability  of  policy  to  individual  cases,  even  if  they  are  not questions of law, may well be subjects on which the Court will grant leave to appeal.  On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

[20]     In  S v S  [2001] NSWSC 146 (9 March 2001) which involved an application for leave to appeal against a decision of the Guardianship Tribunal of New South Wales on whether the plaintiff or the Protective Commissioner should be the manager of the affairs of the first defendant, Young J confirmed that, even in the parens patriae jurisdiction, the court does not interfere with the decision of the primary fact-finding tribunal whether the court or statutory tribunal, unless some error appears in the process leading to the decision or the decision below is clearly wrong.

[21]     That approach in the New South Wales authorities is consistent with what was anticipated by the Queensland Law Reform Commission in Report Number 49

Assisted and Substituted Decisions:  "Decision-making by and for people with a decision-making disability" ("QLRC R49")  which was the report containing the recommendations which the Act implemented: see the Explanatory Notes for the Guardianship and Administration Bill 1999.  In dealing with the grounds for appeal

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from the proposed Tribunal's decisions to the Supreme Court, it is stated in  QLRC R49  at 402:

"The Commission recommended that there should be an appeal as of right on a question of law and that there should also be provision for an appeal on other grounds which the Court considers sufficient to justify a review of the decision.  This would allow a decision to be reviewed on the basis that the Tribunal was mistaken in the view which it took of the facts, but only if the Court considered such a review appropriate in the circumstances of the case."

(footnote omitted)

[22]     I will therefore follow that approach of determining whether leave should be given to the applicant by considering whether it is arguable that there was some error on the part of the Tribunal in the fact finding process or that there was some error in the  view  which  the  Tribunal  took  of  the  facts,  but  subject  to  the  overriding discretion as to whether or not it is an appropriate case for leave to be granted.

[23] It is also relevant to determining the question of leave to have regard to the nature of the appeal for which leave is sought. Rule 765(1) of the UCPR which applies to an appeal from the Tribunal provides that the appeal is by way of rehearing.  On a rehearing the court hears the matter again on the evidence used in the Tribunal below:          Builders' Licensing Board v Sperway Constructions (Syd) Pty Ltd  (1976)

135 CLR 616, 619-620. The power of the court to receive further evidence is limited, as provided by sub-rules (1)(c) and (2) of rule 766 of the UCPR.  The appeal would therefore primarily be concerned with whether the Tribunal reached the right decision on the basis of the evidence put before the Tribunal for the hearing on 23 February 2001 and any further evidence for which leave to adduce on the appeal was given.

[24]     The applicant's affidavits for the purpose of the application for leave to appeal substantially disclose evidence which was before the Tribunal on 23 February 2001. To the extent that the affidavits contain additional evidence, it is largely in the nature  of  submission  and  no  objection  was  taken  by  the  other  parties  to  that additional  evidence  being  relied  on  by  the  applicant  for  the  purpose  of  the application for leave.

[25]     The issues raised by the applicant on her application for leave can be summarised as:

1.The Tribunal should have ascertained John's wishes for the purpose of the review hearing on 23 February 2001.

2.The Tribunal failed to give sufficient weight to the failure of the respondent to act on the recommendation made by the Tribunal on 1 November 2000 to initiate whole of life planning for John.

3.The Tribunal erred in concluding that it was unable to grant joint guardianship of John.

Relevant facts

[26]     The written reasons of the Tribunal in relation to the decision of 1 November 2000 set out a summary of the oral evidence heard by the Tribunal and an extensive summary of the evidence relied on by the Tribunal.  The findings of fact set out in

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paragraph  6.32  of  the  Tribunal's  reasons  do  not  appear  to  be  disputed  by  the applicant.  Similar findings of fact were made by the Tribunal in paragraph 7.9 of the reasons in support of the decision of 23 February 2001.  Again, those findings are not disputed by the applicant.  For the purpose of this application, I will briefly mention some of the pertinent facts.

[27] John was born on in 1970 and is therefore now aged 31 years. He contracted bacterial meningitis at a young age, as a result of which he has a form of cerebral palsy. He has some physical disabilities and a significant intellectual disability. It is not in issue that he is unable to make his own decisions and that section 12 of the Act is applicable.

[28]     The applicant and the respondent were married, but separated when John was 10 years old.  John has resided primarily with the respondent since that time.  The respondent remarried.  Presently, and for some years, John has been attending the Endeavour Industries workshop in the town where he resides five days per week. He spends every second weekend from 5pm on the Friday until 6pm on Sunday with the applicant.  It is not in issue that John is part of a supportive extended family of the respondent and of his wife.

[29]     There  is  a  long  history  of  conflict  between  the  applicant  and  the  respondent involving court proceedings in relation to John since they separated.  It is apparent that  there  are  differences  of  opinion  held  by  the  applicant  and  the  respondent respectively in relation to John's ability to achieve open employment, improved literacy skills and physical skills.

[30]     John gave evidence to the Tribunal on 1 November 2000.  He answered a number of questions from the Tribunal with all other participants present.  He spoke to the Tribunal members, when the other people attending including the applicant and the respondent had left the hearing room for a short period of time.  Paragraph 4.22 of the Tribunal's reasons in respect of the decision of 1 November 2000 recites:

"While the other participants were outside the hearing room, John told the Tribunal that he wanted to stay where he was.  He said he wanted to stay at the Endeavour Workshop and to stay living at home  with  his  father.    John  appeared  most  concerned  about  the possibility that he might leave the workshop.  He told the Tribunal that he was happy with the current arrangements where he lived with his father and spends every second weekend with his mother."

[31]     The applicant informed the Tribunal for the purpose of the review hearing that after the hearing on 1 November 2000 that John had told her that she took a stupid woman to the hearing on 1 November 2000 as she did not offer any support with this  matter  at  that  hearing,  and  John  told  the  applicant  that  she  needed  more supportive people and that is why she lost.  The applicant therefore organised for John to be reviewed by a psychologist who has extensive experience in the area of disability and that report was provided to the review hearing and was relied on in this application.  That report suggests that the more activity that John is engaged in, the happier he will be and recommends that he be exposed to a variety of social, cultural   and   recreational   activity,   and   real   life   experiences   in   the   natural environment, in order to maintain his existing level of skill and to enhance his self- worth.

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[32]     In  her  submissions  put  to  the  review  hearing,  the  applicant  sought  joint guardianship, but for a trial period of 4 months.  She proposed that two days of the week  John  would  reside  with  her  and  try  social,  cultural,  recreational  and educational, as well as open employment opportunities (to be introduced slowly and only to continue if John were to so wish) with progress reviewed by a consultant occupational physician monthly and by an educational specialist each three months. The applicant proposed that the other three days of the working week would be spent by John residing with his father and attending the Endeavour Workshop with alternative weekend arrangements to remain the same.

Whether John should have been present at the review hearing

[33] The applicant is concerned that the Tribunal has behaved inconsistently by taking evidence from John at the hearing on 1 November 2000, but proceeding in John's absence on 23 February 2001. The applicant relies on section 130 of the Act which provides:

"To hear and decide a matter in a proceeding, the Tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material."

[34]     The President of the Tribunal accepted the explanation given by the respondent for why he had not brought John to the review hearing.  Having regard to the nature of the review hearing, the close proximity in time with which it was held to the original hearing and the reasonableness of the explanation for John's non-attendance at the review hearing, the Tribunal had relevant information on John's wishes.  The applicant is correct when she submits that, in accordance with principle 7 of the general principles which requires that an adult's right to participate to the greatest extent practicable in decisions affecting the adult's life must be recognised and taken  into  account,  John's  wishes  were  important  at  the  review  hearing  of  23

February 2001.  Those wishes did not necessarily need to be ascertained by having John present at the Tribunal hearing, when the Tribunal was satisfied that John had expressed on 1 November 2000 his views in relation to with whom he lived and where he was to work.  I do not consider that this ground justifies a review of the Tribunal's decision.

Respondent's compliance with recommendation to initiate whole of life planning

[35] A constraint on the performance by the respondent of his duties as guardian of John is that since the Tribunal's decision of 1 November 2000 he must abide by the general principles set out in Schedule 1 to the Act. The recommendation made by the Tribunal on 1 November 2000 that the respondent initiate whole of life planning for John including future work and accommodation options requires the respondent to have regard to those general principles in undertaking that planning.

[36]     The President of the Tribunal summarised the oral statements and submissions made by the respondent to the Tribunal for the purpose of the review hearing relevant to this issue of whole of life planning as follows:

"5.1.4Mr C advised the Tribunal that he has discussed John with the workshop manager at Endeavour and he is looking at wider   options   for   John.      Mr   C   also   discussed   the recommendation in the Order of the Tribunal, which related

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to whole of life planning for John, but indicated that he had been   unable   to   really   initiate   anything   because   the Application for Review really cast a shadow over the whole matter.  Mr C also advised the Tribunal how much John genuinely loved going to Endeavour and how routine was particularly  important  to  John.    He  will  however  be exploring other options.

5.1.5Mr C advised the Tribunal that it needs to be remembered that  many  activities  have  in  fact  been  tried  with  John already, such as swimming, riding bikes and walking.  John swims regularly next door to their home.

5.1.6It also important to note that John's life already involves a lot of social interaction particularly at work and with the extended family.  John has been particularly welcomed into his wife's family and especially loves her grandchildren who he sees a lot of and gets along very well with because in many ways he is at their level.  He really enjoys mixing with them.

5.1.7Mr  C  also  advised  the  Tribunal  that  his  wife  had  been wonderful with John and her family really love him.  John recently attended a family twenty first which he loved.

5.1.8Mr C also advised that John has a broad outlook on life and he does have pursuits that he is interested in on weekends. Mr C also stated that there is no evidence that John would in fact like all these unspecified activities or open employment options that have been suggested.  The fact of the matter is that John is happy.  Many of the schemes suggested by Mrs C do not work out in reality such as the scheme in relation to the mower, which was mentioned at the last hearing but has now been abandoned."

The President of the Tribunal therefore found that the respondent had indicated that the whole of life planning would be undertaken and that more expansive options for his son would be looked at to determine if they were suitable.

[37]     It was reasonable for the President of the Tribunal to accept that, in practical terms, the need to meet the application for review left little opportunity for the respondent to  endeavour  to  comply  with  the  recommendation  for  whole  of  life  planning between the decision of the Tribunal on 1 November 2000 and the review hearing on 23 February 2001.

[38] The applicant predicts that the respondent is unlikely to comply with the recommendation. There are avenues under the Act for pursuing compliance with the recommendation, when there has been a realistic opportunity for the respondent to comply with the recommendation. I therefore do not consider that this ground justifies a review of the Tribunal's decision of 23 February 2001.

Joint guardianship

[39]     Although it appears that the applicant originally approached the review application on the basis of seeking her appointment as John's guardian in lieu of the respondent,

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it is apparent from the submissions put by the applicant to the Tribunal on 23

February  2001,  that  she  was  pursuing  joint  guardianship  involving  both  the respondent and herself in lieu of the respondent.  That meant that under section

31(4) of the Act the issue for the Tribunal was not whether the respondent was no longer competent, but whether the appointment of the applicant and the respondent jointly was more appropriate than the appointment solely of the respondent. On the issue of appropriateness for appointment, section 15 of the Act is relevant:

"15.(1)  In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters ("appropriateness consideration")-

(a)the general principles and whether the person is likely to apply them;

(b)if  the  appointment  is  for  a  health  matter-the  health  care principle and whether the person is likely to apply it;

(c)the extent to which the adult's and person's interests are likely to conflict;

(d)whether the adult and person are compatible including, for example,      whether      the      person      has      appropriate communication  skills  or  appropriate  cultural  or  social knowledge or experience, to be compatible with the adult;

(e)if more than 1 person is to be appointed-whether the persons are compatible;

(f)whether the person would be available and accessible to the adult;

(g)the  person's  appropriateness  and  competence  to  perform functions and exercise powers under an appointment order."

[40]     The President of the Tribunal concluded as follows in relation to the applicant's submission for joint guardianship:

"8.29The alternative proposal that Mrs C has put forward is that she and Mr C should be appointed jointly as guardians for their son. In this regard the Tribunal notes that Mr C has stated that in the circumstances, given the history of conflict between the parties and the fact that a joint appointment did not   work   in   the   past,   he   would   not   accept   a   joint appointment.

8.30The Tribunal also notes that section 117 of the Act provides that a proposed appointee must agree in writing to the appointment. Accordingly if Mr C has indicated that he would not accept a joint appointment then it is clearly not a viable option for the Tribunal to consider.

8.31Furthermore section 15 of the Act sets out the appropriateness considerations in relation to appointments and provides at 15(1)(e) that if more than one person was to be appointed as guardian then the persons should be compatible.

8.32In the circumstances of the present case, given the history of conflict,    the    difference    in    outlook    and    the    clear incompatibility  of  the  two  paries  (sic)  it  would  not  be

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appropriate for the Tribunal to make an order appointing Mr

C and Mrs C as joint guardians for John."

[41] It therefore was not necessary for the President of the Tribunal to make a comparison by reference to the appropriateness considerations provided for in section 15(1) of the Act between the applicant and the respondent as joint guardians and the respondent as sole guardian.

[42]     It is implicit in the part of the Tribunal's decision dealing with the proposal for joint guardianship that it was accepted that it was not unreasonable on the respondent's part to refuse to consent to being appointed as guardian jointly with the applicant. The evidence before the President of the Tribunal in relation to past  conflict between  the  applicant  and  the  respondent,  their  differences  in  outlook  and incompatibility, supports that conclusion.

[43] In those circumstances, the Tribunal's conclusion that it was not a viable option to consider a joint appointment, because of the terms of section 117 of the Act was clearly correct. Section 117 of the Act states:

"An application for appointment of a guardian or administrator must include the proposed appointee's written agreement to appointment."

[44]     In other circumstances, where it is unreasonable for a party to consent to a joint appointment, that could itself be a relevant consideration against appointing that person the sole guardian.

[45] The applicant submitted that the view of the President that joint guardianship was unable to be granted was contrary to section 29 of the Act. The requirement of the proposed appointee's written agreement to the appointment provided for in section

117 of the Act in connection with an application for appointment must continue to be applicable when the application for appointment is sought in the review process initiated under section 29 of the Act.

[46] It may be that to the extent that this issue raises a question of law involving the construction of section 117 of the Act, leave to appeal is not strictly necessary.

[47] If that question of law is the only ground on which the applicant can pursue an appeal from the Tribunal's decision of 23 February 2001, then the appeal will not be successful, because of what I consider is the proper construction of section 117 of the Act. It was made clear by the parties during the hearing of the application, that it was an application for leave to appeal and that no party wanted the application treated as the appeal. I therefore cannot deal with this question of law on this application.

Conclusion

[48]     After listening to the applicant's oral submissions and studying the material which she relied on in support of her application, I have no doubt that she sincerely believes that making this application is an essential step in pursuit of what she perceives as a better lifestyle and greater opportunities for John.  The applicant wants an opportunity to implement her ideas about what would benefit John and therefore wants to obtain guardianship of John for that purpose.  The appeal process

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is not necessarily the appropriate process for pursuing the applicant's aims.  I have dealt with earlier in these reasons, as to what the role of the court would be on an appeal.

[49]     The orders made by the Tribunal on 1 November 2000 and continued by the orders made on 23 February 2001 expire after 3 years from 1 November 2000, unless the Tribunal orders otherwise.  During this period the respondent has obligations under the orders and recommendations made by the Tribunal on 1 November 2000 which were  continued  by  the  orders  on  23  February  2001.    The  matter  of  John's guardianship therefore remains a matter which will and can be reviewed by the Tribunal,  as  circumstances  and  relationships  of  the  relevant  parties  change  or develop.

[50]     It follows from the conclusions which I have reached in respect of the issues raised by the applicant on her application for leave (except to the extent that the issue in respect of the Tribunal's conclusion that it was unable to grant joint guardianship involves a question of law) that the applicant cannot show that the decision of the Tribunal on 23 February 2001 was wrong.  In any case, I have concluded from my analysis of the Tribunal's decision of 23 February 2001 and the issues now raised by the applicant, that this is not an appropriate matter for which leave to appeal should be given.

[51]     At  the  hearing  of  the  application,  each  of  the  applicant  and  the  respondent submitted that there should be no order as to costs.

[52]     The orders that I will make therefore are:

1.Application for leave to appeal against the decision of the Guardianship and Administration Tribunal made on 23 February 2001 is dismissed.

2.        Each party is to bear the party's costs of the application.