CCT v Public Guardian

[2016] NSWCATAD 71

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CCT v Public Guardian [2016] NSWCATAD 71
Hearing dates:	18 November 2015
Decision date:	18 April 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Hitter, Senior Member
Decision:	The decision of the Public Guardian is affirmed.
Catchwords:	Protective jurisdiction, welfare and interest paramount consideration
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Guardianship Act 1987 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579
Category:	Principal judgment
Parties:	CCT (Applicant) Office of Public Guardian (Respondent)
Representation:	Counsel: Ms Stevens (Respondent)   Solicitors: CCT (Applicant in person) Crown Solicitor’s Office (Respondent)
File Number(s):	1510482
Publication restriction:	Section 65 of the Civil and Administrative Tribunal Act 2013 applies.

Reasons for decision

Introduction

1. This is an application to review a decision (the decision) made by the Respondent that denies CCT (the Applicant) access to a person subject to a Guardianship Order (“MH”) in favour of the Respondent. MH is an 80 year old widowed woman of Polish descent reported to have dementia. At the request of the Applicant, the decision was subject to an internal review by the Respondent and the original decision was upheld.

2. On 8 May 2015, the Guardianship Division of the NSW Civil and Administrative Tribunal (the Guardianship Division) appointed the Respondent as guardian of MH and appointed her foster daughter (“YW”) as financial manager of MH’s affairs. These Orders were confirmed on 18 September 2015 for a period of 3 years. The Respondent is appointed as guardian with authority to make decisions for MH in relation to her accommodation, health care, medical and dental treatment and access people have to her.

3. The Respondent is denying the Applicant access on the basis that it is not in the welfare and interests of MH for the Applicant to have access to her.

4. The Applicant does not agree with the reasons given by the Respondent to deny him access to MH. He says that denying him access to MH prevents him from seeing his “long term exceptional friend whom I have tried to help in her walking disability and quality of life in general”.

5. The Applicant has asked the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (the Tribunal) to review the decision on the grounds that the allegations made by the Respondent about him are incorrect.

6. The Tribunal finds that the decision of the Respondent to deny the Applicant access to MH is the correct and preferable decision for reasons set out below.

The issue

7. The Respondent’s decision to deny the Applicant access to MH is based on events that took place while MH was in the Applicant’s care. These events can be described as broadly falling under two categories. The first category is in relation to MH’s finances. It includes certain withdrawals from MH’s bank account and an attempt to transfer half of the title of a property owned by MH (the Smithfield property) to the Applicant. The second category relates to the control the Applicant exerted over MH while she was in the Applicant’s care, in particular who was able to have access to her and the events that surrounded MH was living with the Applicant’s ex-wife (“IK”). The parties do not agree about critical facts in relation to these events.

8. There are also differences of opinion between the parties about the capacity of MH to make decisions for herself and the need for Orders to appoint a guardian and financial manager. The Applicant argues at the time the Orders were made by the Guardianship Division that MH was capable of making her own decisions and managing her own affairs.

9. The Tribunal must decide whether the decision of the Respondent to deny the Applicant access to MH is the correct and preferable decision: s 63 of the Administrative Decisions Review Act 1997 (NSW). In determining whether it is correct and preferable decision, the Tribunal must be guided by the paramount purpose of protecting the welfare and interests of MH: s 4(a) of the Guardianship Act 1987 (NSW).

10. The Respondent argues that the decision is necessary to protect MH from exploitation and harm. The Applicant says it is not necessary to protect MH from him. The Applicant argues that his request to have access to MH should be considered in the context of the Orders made by the Guardianship Division that have led to the appointment a guardian and a financial manager.

Relevant background

11. MH now lives with YW and her husband in Goulburn. Prior to this she was living for a short period of time with IK and before that, for many years she was living in the Smithfield property.

12. MH was supported over these years to live in the Smithfield property by YW and a friend and neighbour (“AB”). The Tribunal was told that in February 2015, MH made AB her Power of Attorney and Enduring Guardian. AB readily agreed to relinquish these roles when YW indicated that she would be prepared to take on these roles. Although AB relinquished these roles on 22 March 2015, YW did not assume the role of financial manager until 8 May 2015 when the Order was made by the Guardianship Division.

13. The Applicant told the Tribunal that he had known MH for about 25 years and some 12 years ago stored some of his belongings in her garage. There was sporadic contact by phone until about September 2014, when it appeared to the Applicant that MH needed more help. In about March 2015, the Applicant moved in with MH at the Smithfield property. The Applicant said that he helped to pay bills but did not pay rent by mutual agreement.

14. During March, April and May of 2015, YW became increasingly concerned about MH’s welfare and identified some irregularities in MH’s finances. Concerns were also raised by AB and others about MH’s vulnerability to exploitation while in the Applicant’s care. On 28 April 2015, YW made an application to the Guardianship Division.

15. On 8 May 2015 the Guardianship Division was satisfied that MH required a guardian and financial manager and appointed the Respondent as MH’s guardian and YW her financial manager and ordered that these arrangements be reviewed after a period of four months. On 1 June 2015, MH was admitted to Liverpool Hospital with the assistance of the Police at the request of the Respondent. On 2 June 2015, the Respondent made the decision to deny the Applicant, IK and the Applicant’s daughter (“LK”) access to MH. The Liverpool Hospital gave MH an alias and the Applicant was not permitted to see MH and has not had access to MH since that time. Upon discharge from Liverpool Hospital, MH went to live with YW and has remained living there since that time.

Material available to the Tribunal

16. The Tribunal has had access to the following material:

1. The application for review of the Respondent’s decision including attachments.

2. The Respondent’s s58 documents and additional s 58 documents (the s 58 documents).

3. Written submissions made on behalf of the Respondent.

4. Written submissions from the Applicant including attachments.

5. Correspondence from the Crown Solicitor’s Office dated 2 November 2015 enclosing an un-redacted version of certain documents provided by the Respondent.

6. Further correspondence from the Crown Solicitor’s Office dated 18 December 2015 and 15 December 2105.

7. Correspondence from the Applicant dated 23 November 2015, 9 November 2015, and 13 September 2015 including attachments.

8. The Public Guardian’s view dated 24 August 2015 (Exhibit A)

9. Reasons for Decision of the NSW Civil and Administrative Tribunal Guardianship Division dated 18 September 2015 (Exhibit B)

17. The Applicant represented himself at the Hearing. He gave oral evidence and was subject to cross examination. The Respondent was represented by solicitor and counsel.

Application to the Guardianship Division

18. YW’s application dated 28 April 2015 to the Guardianship Division to appoint a guardian and financial manager is included in the s 58 documents. It notes that YW could not locate MH at the time the application was made and the grounds for seeking orders were that MH was vulnerable to financial exploitation and not capable of administering her affairs.

19. At the Hearing on 8 May 2015 where the Respondent was appointed as guardian and YW as financial manager, although MH and the Applicant were notified of the Hearing, they did not attend. On 27 June 2015, the Applicant applied to the Guardianship Division to revoke the Financial Management Order and sought to have the Guardianship Order reviewed on the basis that MH was capable of making her own decisions. This application is also contained in the s58 documents.

20. On 6 August 2015 the Guardianship Division appointed a separate representative for MH. On 18 September 2015 a Hearing was held by the Guardianship Division in Goulburn. The Applicant and MH attended this Hearing. The Hearing was conducted in accordance with the decision made by the Respondent that the Applicant have no contact with MH. The Guardianship Division spoke to MH separately in the presence of the separate representative and a polish interpreter. The content of this discussion was relayed to the other parties including the Applicant.

21. The Guardianship Division was satisfied that the Orders made on 8 May 2015 should continue to operate for a period of three years. The Guardianship Division also found that the decision of the Respondent to deny the Applicant, IK and LK access to MH “needs to continue”.

The correct and preferable decision

22. In determining the correct and preferable decision, the Tribunal must have regard to the material before it, including any relevant factual material and applicable written or unwritten law: s 63 (1) of the Administrative Decisions Review Act 1997 (NSW)). The Tribunal may affirm, or set aside the Public Guardian’s decision. If the decision is set aside, the Tribunal may substitute its own decision for that of the Public Guardian, or remit the matter to the Public Guardian together with any directions or recommendations: s 63 (3) of the Administrative Decisions Review Act 1997 (NSW).

23. Clause 5 of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) provides that the Tribunal, when exercising its functions for the purposes of the Guardianship Act 1987 (NSW) (the Guardianship Act), is under a duty to observe the principles referred to in section 4 of the Act. Section 4 (a) of the Guardianship Act provides that the welfare and interests of the subject person should be given paramount consideration.

24. The protective jurisdiction that applies to the Tribunal is common to the Guardianship Division and is governed by the central informing idea that the jurisdiction exists for the care of those who are not able to take care of themselves. The exercise of this jurisdiction must be for the benefit, and in the best interests, of the person in need of protection as an individual, not for the benefit of the state or for the convenience of carers: P v NSW Trustee and Guardian [2015] NSWSC 579

The relationship between the Applicant and MH

25. The Applicant is a mechanical engineer. In giving evidence to the Tribunal he described his relationship with MH as her “carer” from about March 2015 to May 2015. During this time he applied for a Centrelink allowance as MH’s carer while he was working on a casual basis. The Applicant also described himself as the carer of MH in correspondence to the Tribunal and to the Guardianship Division.

26. The Applicant said that he and the Applicant became “greater friends” after MH’s husband died about 14 years ago. He says he visited her a few times except when a man (ZC) lived with MH and then his son also moved in to the Smithfield property. He says from September 2014 he visited MH often and it was then he realised the care she was receiving was insufficient. He moved in to the Smithfield property to provide her with this care in about March 2015.

27. In a letter dated 8 August 2015 from the Applicant to the Guardianship Division, he notes that from 3 May 2015 to 15 May 2015 he was overseas and LK took over as MH’s temporary carer for that period. The Applicant told the Tribunal that when he was MH’s carer, he did not charge MH a fee for his help or for transportation.

28. In the material available to the Tribunal there is a statutory declaration dated 7 September 2015 from a woman (“TJ”), who describes herself as having known MH for more than 35 years and being very good friends. It states that MH told her that she liked living temporarily with IK. TJ makes no reference to the Applicant as MH’s carer or in any other capacity. A statutory declaration dated 22 August 2015 from another friend of MH of about 35 years (“MA”) says that when MH was living with IK she had “good overall care”. MA also makes no reference to the Applicant as MH’s carer or friend.

29. A report from SC from the ACAT dated 3 February 2015 identifies AB as MH’s main carer, who visits daily and assists her with domestic tasks and shopping. The report makes no reference to the Applicant in any capacity. The s 58 documents contain a file note dated 25 May 2015, which reports a conversation with AB which states that MH never talked about the Applicant “before he came into her life”. Although not explicitly stated, the inference is that MH did not talk about the Applicant until he became more involved in her life from about September 2014.

30. The Applicant provided the Tribunal with postcards written in Polish by MH that are addressed to him and photos of himself with MH. In his submission to the Tribunal, the Applicant says when he was living with MH he started to clean the house more thoroughly and helped to repair the leaking roof. He says MH could not rely on YW for care because she was visiting MH only twice a year and her cousins lived far away. He also states that AB did not have time to care for MH because she was busy caring for her husband. This view of the support provided by AB to MH is however not supported by the report provided by SC from the assessment he made in February 2015.

31. The Tribunal is satisfied that the Applicant had a friendship with MH and had known her acquaintance for a number of years. However the extent of their friendship over these years is not clear. In light of the material available to the Tribunal, the Applicant has not established that he and MH were “long term exceptional friends” or “great friends”. The extent to which the Applicant cared for MH is also not clear. It is likely that he did provide some level of support to her, more so during the short time they were living together, but the details of what this support or care entailed is also not clear to the Tribunal. The Tribunal finds that although the Applicant and MH had some kind of caring relationship and friendship, it is more than likely to have been of some significance in the short period of time that they were living together, but not of the significance or to the extent that the Applicant has represented to the Tribunal to be the case.

Capacity of MH to make decisions

32. At the Hearing held by the Guardianship Division on 18 September 2015, the Applicant argued that MH was capable of making her own decisions and in support of this he provided letters from four medical practitioners. The Guardianship Division found that as there was no reference as to how long these doctors had known MH, or how they formed the view that she was able to make her own decisions, and so “very little evidentiary weight” could be given to these reports.

33. In contrast, the Guardianship Division considered a detailed neuropsychology report from Ms Emily Connaughton, Clinical Neuropsychology Registrar, Liverpool Hospital, who conducted an assessment specifically to assess MH’s capacity to make informed decisions regarding accommodation and finances. This report concluded that MH showed clear signs of cognitive impairment and that as a result of these cognitive impairments, MH is vulnerable to coercion from others. Ms Connaughton concluded that MH’s capacity to make informed decisions regarding accommodation and financial matters would be impeded and recommended continuation of the guardianship order and supported the financial management order.

34. The Guardianship Division noted that while the Applicant was the only party to those proceedings that was arguing that MH had some decision making capacity, the Applicant qualified his views by stating he had not seen MH since June 2015 because of the decision preventing his access to MH. The Applicant made a similar statement to the Tribunal at the Hearing. The Applicant submitted to the Tribunal that at the time MH was in his care, she was capable of making decisions and taking care of her affairs. However this is not consistent with the findings of the Guardianship Division or with the material that is available to the Tribunal in relation to MH’s capacity at that time.

35. The Guardianship Division was satisfied that MH had a disability being dementia and was unable to make important life decisions. It found that a coercive accommodation function was necessary and that the decision of the Respondent to deny the Applicant, IK and LK access to MH should continue. In support of that finding the Guardianship Division referred to the difficulties experienced by MH’s family gaining access to her while she was living with IK and that the Applicant, IK and LK were involved in financially exploiting MH and were planning to take control of the Smithfield property. The Tribunal is not in the position to make an alternative finding that MH was capable of managing her affairs at the time she was in MH’s care. The Tribunal has proceeded on the basis that it is satisfied that MH did not have the capacity to make such decisions or to manage her financial affairs.

Concerns about financial exploitation

36. The Respondent refers to cash withdrawals from MH’s bank account while in the Applicant’s care that were inconsistent with MH’s previous spending and were not able to be sufficiently explained in the context of MH’s care and her needs at that time. One such transaction was a withdrawal of $7,000 made on 1 June 2015 from MH’s account which was drawn to the Respondent’s attention by YW, who alleged that the money had been taken by the Applicant, IK and LK. In the letter to the Guardianship Division dated 8 August 2015 from the Applicant, he provides an explanation for this transaction. He states that YW withdrew $4,320 and closed an account on 20 May 2015 without MH’s authorisation. The Applicant states that MH “decided to withdraw whatever was left in the account, in the amount of $7,000” and “she did signed the withdrawal operations herself. The amount already spent for cost of living and some personal items was $1,857. The remaining amount according to (MH’s) instructions was supposed to be spent for her medical needs, associated with her upcoming surgery. MH gave this money to IK to take care of as she was given power of attorney”.

37. At the time of these transactions YW was MH’s financial manager. MH should therefore not have been in the position to withdraw funds without YW’s consent given the financial management order that was in place. The s 58 documents indicate that IK did not have a valid Power of Attorney at that time. Further from 1 June 2015, MH was in Liverpool hospital and did not return to live with IK or be cared for by her or the Applicant.

38. Under cross examination at the Hearing, the Applicant stated that he had no knowledge of the $7,000 withdrawal and that it was facilitated by IK. He said he had nothing to do with MH’s financial affairs until he became aware of the Financial Management Order, which he said was on 6 August 2015. This is not consistent with the Applicant applying to revoke the Financial Management Order on 27 June 2015. The Applicant’s evidence also varied with the explanation he provided in his letter of 8 August 2015 to the Guardianship Division, where it is implies that he did know something of the $7,000 withdrawal at the time it was made.

36. In his written submissions to the Tribunal, the Applicant said he did not remove or intend to remove any amount from M’s accounts. He did not attempt to be appointed power of attorney or to be authorised to operate her accounts. He says the only money he received was from Centrelink for being her part-time carer for a limited period. Whilst there is no evidence that the Applicant himself removed money from MH’s bank account, the Tribunal is satisfied that the Applicant did have some level of involvement in withdrawing funds from MH’s bank account while she was in his care. The Tribunal is also satisfied that the Respondent had reasonable grounds to be concerned about the improper use of those funds.

37. The Respondent also referred to the Applicant’s involvement in taking MH to a solicitor to execute certain documents that relate to MH’s financial affairs as another example of concern about potential financial exploitation.

38. In April 2015 the Applicant took MH to see a solicitor, Chris Nadolski to execute what he describes as a “caring agreement”. The Applicant said this entailed the transfer of the Smithfield property “to both names”, MH and the Applicant “in 50%/50%”, provided that the Applicant cares for her “till the end of her days”. On 27 April 2015, MH’s solicitor John Szady was contacted by Mr Nadolski, who sought the title deeds to the Smithfield property but Mr Szady refused to provide them.

39. The Applicant wrote in his letter of 8 August 2015 to the Guardianship Division, that the title deeds of the Smithfield property “were stolen” and he was helping MH to recover them. However under cross examination at the Hearing, the Applicant said that in April 2015, when he and MH went to see Mr Nadolski, he did not know where the title deeds were held, and only became aware that Mr Szady was MH’s solicitor on 8 May 2015. He also said that he took MH to see Mr Nadolski because MH might have wanted to change her will. He said that MH wanted to make him her next of kin but he said to her that he did not want that.

40. The Guardianship Division referred to evidence provided by the Applicant at the Hearing on 18 September 2015 that he took MH to see Mr Nadolski because MH had made a will leaving everything to a young man who had been living at her house and she wanted to change this. He said MH also wanted to make some arrangement to recognise the care he was providing to her. When asked why he took MH to Mr Nadolski and not Mr Szady, who had been MH’s solicitor for many years, the Applicant’s evidence was that he believed Mr Szady had a conflict of interest because he had the title deeds to her house, and he thought this was irregular. This evidence the Applicant gave to the Guardianship Division varies with the evidence given by the Applicant to the Tribunal. The Applicant told the Tribunal that he did not know where the title deeds were held at the time he took the MH to see Mr Nadolski.

41. In his written submissions to the Tribunal, the Applicant states that MH wanted to see another solicitor other than Mr Szady. He says “her decision at the time was to see a well-known solicitor from Ashfield, M C Nadolski to recover or produce new title deeds for the house for (MH) and not him. The Applicant again refers to the original title deeds being missing and “on her will signed the papers and she agrees to transfer title deeds of the property to both names provided that the Applicant take care of her till the end of her days secured in a legal document called: caring agreement which would be a lifetime obligation on my part. If I would die the ownership of the property would go back to (MH)”.

42. Under cross examination the Respondent raised with the Applicant the apparent inconsistencies in his account of why he took MH to see Mr Nadolski and his knowledge of the location of the title deeds at the time they went to see Mr Nadolski. The Applicant said he did not recall the evidence he gave to the Guardianship Division at the September 2015 Hearing.

43. In the s58 documents there is a file note from a phone conversation with Mr Nadolski dated 25 May 2015 in which he advises that he was not acting for MH. It notes that the Applicant wanted documents signed including a power of attorney, enduring guardian and a carer agreement to leave/transfer the Smithfield property to the Applicant. Mr Nadolski spoke to MH in Polish and deemed her not to have capacity to sign the documents and did not wish to get involved as she “did not have capacity”.

44. The account given by the Applicant to the Tribunal to explain the attempted execution of a document to transfer half of the Smithfield property to him lacks credibility and does not appear be motivated by MH’s best interests. The way in which it was orchestrated supports the conclusion that it was an attempt to take advantage of MH, who was at the time clearly vulnerable and lacked the capacity to make such an important decision. Given the short period of time that the Applicant had been providing care for MH, which at that stage was only for about one month after moving into the Smithfield property, the rationale provided by the Applicant as to why MH would need to enter into such an arrangement with him and that it would be in her welfare and interests to do so is not convincing. There is no evidence to support the claim that YW or AB was not able to continue to support and care MH, or that their care was deficient in some way, and it is difficult to see how the transfer of half of the Smithfield property to the Applicant could have been in MH’s best interests.

45. The Tribunal is satisfied that the Applicant had more involvement with MH’s finances than he is prepared to admit and the concerns of the Respondent about the potential for MH to be financially exploited by the Applicant were justified in all the circumstances.

46. The Applicant submits that his request to have access to MH should be determined with regard to the Financial Management Order that is now in place to protect MH from financial exploitation. Whilst a financial management order does offer some protection from financial exploitation, the test the Tribunal must apply in relation to the Respondent’s decision to deny the Applicant access to MH is whether it is the correct and preferable decision with regard to MH’s overall welfare and interests. The Tribunal finds that the Applicant’s lack of credibility in the evidence he has given about his intentions with regard to MH’s financial affairs supports the conclusion that it is not in the welfare and best interests of MH for the Applicant to have access to her.

Allegation of restricting access to MH

50. A report by MB, a Social Worker at Liverpool Hospital, to the Guardianship Division dated 28 April 2015 notes that on 9 April 2015, she was contacted by YW and a long standing friend of MH, stating that MH had been “abducted” by the Applicant and that AB and YW were unable to enter the Smithfield property because the locks had been changed. On 3 April 2015, YW made a missing person’s report to Fairfield Police as they could not contact or locate MH. MB notes in her report that she was not able to conduct a psychosocial assessment of MH because the Applicant requested that she make contact through a solicitor.

51. Under cross examination at the Hearing the Applicant said he was not aware of the missing person’s report made by YW. He said the Police contacted him but did not ask where MH was. He said that he offered to take MH to the Police station and he did so. He agreed that in April 2015 he changed the locks to the Smithfield property.

52. The Applicant denies that he restricted MH’s family access to her. In his letter of 8 August 2015 to the Guardianship Division, the Applicant suggests that MH did not want to keep contact with YW because of the possibility of being taken to Goulburn by force and was suspicious of YW’s intentions to relocate her there. The Applicant also denies preventing the social worker MB, from access to MH. He says MH was not moved against her will to live with IK in order that she have no contact with her family, and that MH liked to live in a house with more people.

53. There is a letter contained in the s 58 documents from the Applicant dated 30 April 2015. It states that MH is receiving “adequate help”, is in a “good state of mind (mentally stable). About her life related decisions, she is capable of making by herself. Also doctor’s certificate attached”. It goes on to say that MH will be “seeking AVO” against YW and her husband and AB, because these people are causing her “distress, discomfort and insecurity”.

54. The Applicant has submitted to the Tribunal that MH did not want to be assessed by anyone and did not want to see MB. He also rejects the allegation that he was disruptive at Liverpool Hospital following MH being taken there with Police assistance on 1 June 2015.

55. The background to MH’s admission to Liverpool Hospital includes an event which occurred on 26 May 2015, when the Police attended MH’s house at the request of the Respondent in an attempt to transfer MH to hospital for a medical assessment. There is a file note in the s 58 documents which states that

“Police Officers from Liverpool station found (MH and the Applicant) at the back of the property. The GT Order was discussed as being in place and wishing to take MH to Liverpool Hospital for assessment. The (Applicant) stated he did not recognise the Order in place he kept referring to the signature on the order and stating “it was not a signature”. NSW Police stated they recognised the Order. MH spoke to the OR and verbally abused them without provocation, the OR believed the shouting and pacing of the (Applicant) brought about her verbal abuse. The (Applicant) then asked MH to move into the home which she did, he then following and when in locked to door, the (Applicant) then came out of the property via the front door. He said the home was not his and he could not let anyone in, The Police stated they had a key to the property. NSW Police used there radio to contact the ambulance service to assist. Ambulance officers entered the home, they attempted to discuss moving her to hospital. The (Applicant) exasperated (sic) the situation and MH. TBC.”

56. Under cross examination at the Hearing the Applicant said that the first time he had contact with a caseworker on behalf of the Respondent was on 26 May 2015. The Applicant’s written submissions state that although he was informed on 26 May 2015 by the Respondent of the Guardianship Order, these Orders were not received by him until 6 August 2015. The Applicant says that this is why he did not recognise validity of the Orders appointing a guardian and financial manager until that date. However this stated lack of recognition of the Orders on the basis they had not been received by him is at odds with the Applicant applying to the Guardianship Division on 27 June 2015 to have the Guardianship Order reviewed and the Financial Management Order revoked.

57. In relation to the Police attending the Smithfield property on 26 May 2015, under cross examination the Applicant stated that there was no warning that the Police would be attending. He said it was for the owner of the house to let the Police in and this is why he was reluctant to let them in. Also he was shown a letter from Guardianship Division dated “5 May” without a name of person who signed it, which he thought was strange.

58. On 1 June 2015 with the assistance of the Police, MH was admitted to Liverpool Hospital. There is a file note in the s 58 documents of a phone conversation with MB who also attended the Hospital, which states that the Applicant was there and “demanding a copy of the current order because he has a letter proving that MH has capacity”.

59. The Applicant’s explanation of his approach to the Police and MB, and to efforts to provide medical assistance to MH, is not consistent with wanting the best interests of MH given her overall condition and circumstances. The Applicant has not sufficiently demonstrated to the Tribunal why this was a reasonable approach and how it could have been beneficial to MH in all of the circumstances at the time of these events.

60. There is no evidence before the Tribunal of MH wanting to see the Applicant following the decision to deny the Applicant access to her. The Tribunal does not have the benefit of direct evidence from MH, however it does have regard to the finding of the Guardianship Division that YW was the most suitable person to perform the role of MH’s financial manager. The statutory declarations made by TJ and MA refer to MH not wanting to live with YW but this is not consistent with the evidence MH gave to the Guardianship Division on 18 September 2015, which was that she loves YW and is happy living with her.

61. The Guardianship Division’s Reasons refers to MH making disparaging comments and gestures regarding the Applicant, IK and LK, and she said that she did not want to see them. There is a file note dated 23 July 2015 in the s 58 documents from MH’s case officer, which states that MH “was told by the OR that they had made a decision for her not to speak to the (Applicant, IK and LK) either by phone or in person, she responded that she wanted her address book, and her things back, she clearly stated she did not wish to speak to them”. It is noted that this conversation was witnessed by the Principal Guardian.

62. The Tribunal is satisfied that for the period of time that the Applicant was involved in MH’s care, there were difficulties experienced by MH’s family to gain access to her. This was because of the control the Applicant had over the extent to which MH was able to see her family or professionals interested in her care and that the Applicant exercised this control in such a way that was not in MH’s welfare and best interests.

63. At the Hearing the Tribunal was informed that the Respondent had no capacity for supervised access however the Respondent said that they would consider such a proposal made by the Applicant.

64. Following orders made by the Tribunal to allow the Applicant to propose to the Public Guardian an arrangement for supervised access to MH, on 23 November 2015 the Applicant proposed once a month on Sundays for the next 12 months for two and a half to three hours. He offered that a well-known person in the Polish community (WS) be present as “supervising team leader”. He said that the amount of friends who would be visiting MH would be four people or less including himself. He also proposed to invite one of the off duty police officers from Goulburn Police Station for a dinner if that would be possible at the time. He said that time spent with MH will be for dinner and staying in the local park to enjoy time together being outside.

65. The Tribunal was informed by letter dated 15 December 2015 from the Crown Solicitor’s Office that on 7 December 2015 the Respondent informed the Applicant that it had formed the view that the access proposal was not in MH’s welfare and interests. The Public Guardian’s submissions in reply dated 21 December 2015 do not address the Applicant’s proposal for supervised access. The Tribunal must therefore consider the Applicant’s proposal for supervised access in based on the material available to it at the Hearing.

Conclusion

66. The decision to deny the Applicant access to MH must be assessed in the context of the overall welfare and best interests of MH, including preserving family relationships and protection from neglect, abuse and exploitation. In this regard, the material before the Tribunal supports a finding that the decision to deny the Applicant access to MH is the correct and preferable one. His involvement in her care was for only a very limited period, being for about 3 months in 2015. In effect, from the time he lived with MH from March to May 2015. Further in the 3 month period when the Applicant was most involved in MH’s care, there is worrying evidence of an attempt to take financial advantage of her vulnerable state and to isolate her from family and other persons who would protect her from harm and who she had trusted to have her interests at heart. The events that took place during this short period of time support the conclusion reached by the Respondent that the Applicant did not have MH’s overall welfare and interests at heart.

67. The difficulties MH’s family experienced in accessing her while in the Applicant’s care is established on the material available to the Tribunal and it is not surprising that there is a high degree of distrust of the Applicant by MH’s family. The Respondent has made the correct and preferable decision to deny access to MH because to allow the Applicant access would be disruptive and potentially harmful, even if that access was to be supervised as proposed by the Applicant.

68. The Applicant says that MH is not able to be in contact with parts of the Polish community. Preserving cultural and linguistic environments is a factor to consider: section 4 (e) of the Guardianship Act 1987 (NSW). The Tribunal is not satisfied that allowing the Applicant access to MH would provide MH with any potential benefit in this regard.

69. The Tribunal finds that the decision of the Respondent to deny the Applicant access to MH is the correct and preferable decision. The decision is affirmed.

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: 18 April 2016