CNW v Public Guardian

[2017] NSWCATAD 15

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	CNW v Public Guardian [2017] NSWCATAD 15
Hearing dates:	25 July 2016
Date of orders:	11 January 2017
Decision date:	11 January 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Moir, Senior Member
Decision:	(1) CD and DE were not joined as parties to the application for review.  (2) The decision under review is varied to the extent that there is no prohibition against CNW inviting a non family member to any access visits with AB.
Catchwords:	Administrative Review – NSW Public Guardian – correct and preferable decision – best interests of the person under guardianship
Legislation Cited:	Administrative Decisions Review Act 1997(NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2010 (NSW)
Category:	Principal judgment
Parties:	CNW (Applicant) Public Guardian (Respondent)
Representation:	Counsel: M Higgins (Respondent)   Solicitors: Emil Ford Lawyers (Applicant) Crown Solicitors Officer (Respondent)
File Number(s):	1610290
Publication restriction:	S64 Civil and Administrative Tribunal Act 2013 – prohibiting the publication of the names of the witnesses, applicants and the person under guardianship.

REASONS FOR DECISION

1. The person under guardianship, who I will refer to in these reasons as AB, is a 51 year old woman with Down’s Syndrome and Alzheimer’s dementia, who has lived for the last few years at an aged care facility (the ACF) in a regional area in eastern NSW. Before moving to the ACF she had lived with her sister (BC) for around 13 years, since their parents died. She has another sister, who is the applicant in these proceedings, who will be referred to as CNW, and two brothers (CD and DE). The Public Guardian has been appointed and reappointed on review as AB’s guardian in respect of the access she should have with other people, and specifically, with CNW.

2. The issue in these proceedings is whether the Public Guardian’s decision of 28 January 2016 (reviewed and affirmed internally on 29 April 2016) regarding the conditions under which AB is to have access with CNW, is the correct and preferable decision. CNW contends that the decision regarding the terms and conditions imposed by the Public Guardian was made based on incorrect information, that she was not afforded procedural fairness in the making of the decision and that there is no proper rationale for a number of the elements of the decision.

NON-PUBLICATION OF NAMES

3. Subsections 65(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW), prohibit publication of the names of certain persons to whom proceedings relate, if the proceedings relate to a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). This includes the Guardianship Act 1987 (NSW). Those persons include a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings. These proceedings are for a decision for the purposes of the Guardianship Act 1987.

4. Whilst the prohibition in s 65 does not apply to an official report of the proceedings (see s 65(3)), I have used the acronyms set out earlier, so as to preserve the anonymity of family members.

BACKGROUND

5. On 5 December 2013 the Guardianship Division of the NCAT (then the Guardianship Tribunal) made a 12 month order appointing the BC as AB’s guardian to make decisions about her accommodation, and the Public Guardian as AB’s guardian to make decisions regarding the access she has to other people. BC was the applicant in that matter. An earlier application for guardianship had been made by BC, but had been withdrawn in May 2013. In May 2013 the Guardianship Tribunal made a financial management order, appointing CD and DE as financial managers.

6. The Public Guardian made a decision on 30 July 2014 to allow CNW to visit AB once a month between August 2014 and December 2014.

7. On 2 December 2014 the Guardianship Division reviewed and renewed the guardianship order for a further 12 months, appointing the Public Guardian as guardian with authority to make access decisions. On 30 April 2015 the Public Guardian made a decision to provide CNW with access to AB for fortnightly, hour long supervised visits until August 2015.

8. On 21 August 2015 the Public Guardian made a decision to extend the existing supervised access arrangements until February 2016. Between August 2015 and January 2016, the Public Guardian was gathering the views of AB, her siblings, and management at the ACF regarding the access arrangements and whether supervised access was still required.

9. On 9 December 2015 the Guardianship Division again reviewed and renewed the guardianship order and reappointed the Public Guardian for a period of three years with the authority to make decisions regarding access.

10. On 28 January 2016 the Public Guardian made the decision which is the subject of this review, as follows.

1. To provide consent on behalf of AB to receive monthly supervised visits lasting an hour and a half from her sister, CNW. This is a temporary arrangement for the next 7 months, February 2016 up to and including July 2016;

2. Visits are to be carried out on weekends and supervised by an independent 3rd party, on the grounds of the ACF and not within AB’s room;

3. CNW is to refrain from discussing topics known to cause AB distress. Topics include but are not limited to AB’s health, weight, clothing, passing of parents and past alleged sexual assault;

4. The Public Guardian requests the supervising staff member terminate the visit should the abovementioned topics be presented and/or signs of distress are detected in AB. The Public Guardian requests a short report from the supervising staff member after each visit;

5. CNW is to leave the premises of the ACF immediately after visits or termination of visits without complaint or causing distress. CNW is to refrain from addressing issues on the grounds of the ACF. Contact with the Public Guardian post visit is required to address issues;

6. CNW is to refrain from inviting non family members to visits with AB.

11. On 11 March 2016, CNW asked the Public Guardian to review this decision under s 53 of the Administrative Decisions Review Act 1997 (Administrative Decisions Review Act), and on 29 April 2016 the Public Guardian affirmed the decision under review. CNW was notified of this decision by a letter dated 3 May 2016.

12. On 27 April 2016 CNW asked this Tribunal to review the decision under s 55 of the Administrative Decisions Review Act and s 80 of the Guardianship Act 1987 (the Guardianship Act).

13. A hearing was conducted on 25 July 2016, and was attended by CNW, BC, CD, DE, Ms Vicky Sciberras from the Public Guardian, and a female friend of CNW’s. Mr van Eade, solicitor represented CNW and Mr Elliot, solicitor and Mr Higgins of Counsel represented the Public Guardian.

14. At the commencement of the hearing Mr van Eade confirmed that even though the period to which the decision under review applied was almost at an end (27 July 2016), CNW wished to proceed with the application for review. He anticipated that a favourable decision would provide some guidance to the Public Guardian regarding future access decisions regarding CNW and AB.

15. It was confirmed at the hearing that CNW had chosen not to visit AB at all since the decision was made on the basis that the conditions of the access were not reasonable and that she could not comply with them.

16. At the conclusion of the hearing, the legal representatives indicated they would make final submissions in writing by 8 August 2016. I had regard to all of this material in making my decision.

RELEVANT LEGISLATION AND JURISDICTION OF THIS TRIBUNAL

17. Section 55 of the Administrative Decisions Review Act provides that an “interested person” may request a review of an administratively reviewable decision. A request for review under s 55 is not invalid even if no internal review has been conducted by the administrator (the Public Guardian).

18. Section 63 of the Administrative Decisions Review Act provides that in conducting an administrative review, I must consider the available factual material and the relevant law to make the correct and preferable decision. I must either affirm, vary or set aside the decision under review. I must also have regard to the principles set out in s 4 of the Guardianship Act.

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

20. Regulation 17 of the Guardianship Regulations 2010 provides that all decisions of the Public Guardian made in connection with the exercise of its functions are prescribed for the purposes of s 80A of the Guardianship Act. Hence the decision made by the Public Guardian in this case is a decision in respect of which an application may be made for review to the Tribunal.

21. Applicants who may apply to the Tribunal under s 80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision' (s80A(2)(d)).

22. I am satisfied that CNW is a person whose interests are adversely affected by the decision under review as her contact with her sister has been restricted. On this basis I am satisfied that she is able to make an application for review of the decision to the Tribunal.

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

It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:(a) the welfare and interests of such persons should be given paramount consideration,

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

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

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

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

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

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

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

Parties to this application for review

24. The parties to the application for review are CNW, (the applicant), and thePublic Guardian(the respondent).

25. Prior to the hearing the Tribunal received an email from AB’s brothers indicating that they sought to be joined as parties to the application. At the hearing they explained that they had made this application on the basis that it may assist the Tribunal. They are financial managers for AB and so are aware of her financial situation and have also been involved in all previous hearings. They indicated that they were not pressing to be joined as parties and were willing to make any contribution they could as witnesses. Representatives for CNW and the Public Guardian were in agreement that there was no benefit to AB if her brothers were joined and that as their view was consistent with the Public Guardians’ view there was no additional view to be expressed. As they had clarified that they were not pressing to be joined as parties and there was no clear benefit to AB or the Tribunal in doing so, and doing so may have caused delay because of the requirement to provide them with an opportunity to consider all of the material, I did not join them as parties.

EVIDENCE AND SUBMISSIONS

26. I had the benefit of the following material:

1. Section 58 documents lodged by the Public Guardian, which contained the evidence on which it relied in coming to the decision under review;

2. Sworn affidavits from CNW, dated 30 June 2016, 5 July 2016 and 25 July 2016;

3. A sworn affidavit from BC, dated 20 July 2016;

4. Oral evidence from CNW and BC given at the hearing.

27. I also had two submissions from Mr van Eade, dated 6 July 2015, and 1 August 2016 and two from Mr Higgins dated 21 July 2016 and 2 August 2016.

Basis for the Public Guardian’s decision

28. It is material that the Guardianship Division has on three occasions now appointed the Public Guardian to make decisions regarding AB’s access with other people, and that the basis for this is the need to manage the access between CNW and AB. Such orders are not made and repeatedly renewed without a sound basis.

29. It is not disputed that CNW is estranged from BC, CD and DE. It is common ground that AB wishes to have a relationship and contact with each of her siblings, and specifically, with CNW. The Public Guardian has noted that she has made this clear when representatives have met with her.

30. However BC, CD and DE expressed concerns about various aspects of CNW’s relationship with AB and have expressed that limits need to be put on this to ensure that AB is not exposed to conduct which causes her distress. These concerns include inconsistency in the relationship between CNW and AB, and in particular the complete absence of contact between 2006 and 2013; CNW administering AB medication without discussion with the staff at the ACF or treating doctors; CNW confusing and upsetting AB regarding the death of their mother and her whereabouts after death; CNW’s actions in pursuing an alleged sexual assault of AB in 2013, and her continued references to this issue; and the lack of any communication between CNW and her siblings other than AB, which compounds the other concerns.

31. The Public Guardian’s decision was also made in the context of reports of a visit from CNW on 12 September 2015, during which AB was said to have become upset and to have remained upset for some time afterwards. Reports from the supervising nurses asserted that there had been some altercation between CNW and the supervising nurses about an injury to AB’s finger, and some difficulty at the time she was to leave. Staff notes and correspondence from the Executive Care Manager of the ACF all expressed concern about this and noted AB was upset by the exchange between CNW and the staff.

32. The Public Guardian’s reasons for decision make it clear that the views of CNW’s siblings, CNW and the Executive Care Manager of the ACF had all been sought and considered in making the decision under review. CNW had proposed that she be able to visit her sister fortnightly, on weekends for 1.5 hours duration, without supervision apart from staff from the ACF.

33. BC, CD, DE and the Executive Care Manager from the ACF opposed this proposal. The Executive Care Manager suggested monthly visits for 1.5 hours on weekdays without other people present except an independent party to supervise.

34. There was also earlier correspondence from the Executive Care Manager and the Care Manager at the ACF, both stating that it was in AB’s best interests that visits from CNW be supervised. The Executive Care Manager provided some information about the incident on 12 September 2015, including that there was some difficulty moving CNW out of the ACF at the end of the visit

35. BC’s affadavit and oral evidence provided further detail regarding some of the matters of concern. She confirms that AB lived with her between 2001 (when their mother died) and 2013 when she moved to the ACF, having been diagnosed with dementia. CNW did not have contact with AB from 2006, and only re-established contact in 2013 once AB was living at the ACF. Initially CNW had unlimited access with AB and would take her on outings and to her place for weekends.

36. BC said that CNW took AB to the cemetery where their mother is buried and told her this was where her mother was, when she had previously been told that her mother was in heaven. This was confusing and upsetting to AB and BC said that staff at the ACF reported that whenever CNW left the ACF, AB would be crying. BC said that CNW told her that AB had “not grieved properly”. BC submitted that CNW was not qualified to make this assessment, and that her actions were detrimental to AB, bringing up their mother’s death some 12 years later

37. BC said that during a weekend visit to CNW’s house in 2013, CNW observed AB to have vaginal soreness. CNW asked her if someone had touched her there and AB apparently said yes, and named another resident at the ACF. Although BC is recognised as the primary carer/person responsible for AB, CNW did not contact her, or the ACF about this allegation until two days later. BC said that she had observed no change in AB’s behaviour prior to her visit with CNW and staff had reported that she was happy and settled. Had CNW contacted them prior to taking the action she took, this additional information may have been helpful in deciding what action, if any, to take. Instead CNW contacted a GP she knows, and on her advice took AB to the sexual assault unit at the hospital where she was examined. She also reported the matter to the police who interviewed AB at CNW’s home and then again at the police station. AB was subsequently found to have a urinary tract infection, which was successfully treated with antibiotics and the irritation to her vaginal area resolved. The Police took no action and there was no evidence found of a sexual assault. However CNW persisted with the allegation for a long time, including looking for alternative accommodation for AB, and telling other people that AB was not happy at the ACF. This was also upsetting for AB and worrying for BC, CD and DE. In her oral evidence BC confirmed that she does not believe that AB was sexually assaulted. She said that AB has not shown any distress in the presence of the “very retiring” man alleged to have assaulted her. She said that AB is in a supervised dementia unit and that for the six months after the alleged incident the staff did half hourly checks on AB and the man in question, and there was no report of any problems.

38. BC said that she and her sister are both qualified nurses. BC states that she has “asked CNW not to medicate AB as she has a health plan and sees her GP regularly. However this request was not followed by CNW”. She gives the example that CNW has given AB constipation relief, which then has led to her having loose bowel motions for a week. CNW is said to be forceful in her manner with staff at the ACF in raising concerns, which is upsetting for AB. She refers to the incident on 12 September 2015 as an example of this. BC said that she came to take AB to church on 13 September 2015 as usual but that AB was not her usual happy and excited self, but was noticeably quiet and not as happy as usual. When BC enquired about this with the staff at the ACF, she was told of the incident the day before.

39. BC states that CNW is concerned about AB’s weight, and has made upsetting comments to her at family gatherings about not eating so much. She buys her clothes that are too small and then has to take them away again which is upsetting for AB who does not understand why she cannot have her present.

40. BC states that CNW’s relationship with AB has been “off and on” with lengthy periods with no contact. AB enjoys seeing CNW and the family support this. However CNW’s manner and desire to impart her views on AB is distressing and “not conducive to AB’s well being”. This is why limits including supervision are necessary to manage her interactions with AB. They proposed to the Public Guardian that CNW be allowed to visit on weekdays to ensure there were additional staff to provide support. They expressed concern that CNW was unable to take responsibility for her actions, tending instead to blame others, and that they doubted her ability to make sure that her visits with AB were calm and enjoyable.

28. BC also referred to CNW having mental health issues, but under cross examination she confirmed that she had no knowledge of any details about this. I noted that it did not appear to be a material factor in the decision under review.

CNW evidence and submissions

42. CNW submitted that the Public Guardian’s decision was made based on incorrect information from her siblings and ACF staff; that she was not given the opportunity to respond to some of this information; and that some of the restrictions have no proper rationale, particularly the requirement that she not bring other people to her visits with AB.

43. In his submission Mr van Eade states that the Public Guardian’s decision concludes with the statement “supervised access will protect AB’s welfare and interests by preventing anxiety and distress.” He states that the best explanation for the restrictions imposed are stated in the decision as follows “information suggests AB experiences high levels of distress resulting in self harm after some interactions with CNW.” He states “At no point is there any consideration of the possibility that AB herself may in fact be the person who instigates the various discussions – no consideration of whether in such circumstances it is proper or beneficial for AB to be able to express these matters and no analysis of what “distress and anxiety” actually means.” He makes various other assertions that question the assessment of whether AB has experienced distress or not, and whether, if she has, the visit from CNW caused this or not.

44. In her affadavits CNW provides her response to the various incidents/allegations referred to earlier. She denies that her conduct has upset AB as alleged by BC and the Public Guardian. CNW agreed that she had ceased contact with AB between 2006 and 2013. Prior to this AB used to come and stay with her on a regular basis. CNW became unable to deal with differences that she had with BC and her perception that BC was not caring for AB properly. As a consequence she ceased all contact with AB. She agreed under cross examination that she did not have any contact at all with AB in this period – not even sending a birthday or Christmas card. Under cross examination she said that she had invited BC to come to a counselling session with her before she ceased contact with AB, but that BC was “not able to respond to my emotional needs” and nothing was resolved. She agreed that she made no further attempts to resolve their differences after this. Under cross examination she agreed that her withdrawal from AB would have had a negative effect on her but that she did not feel able to take another approach.

45. CNW states that since she has resumed contact, she has responded to AB’s desire to talk about and grieve for their mother. She denies that she brings up topics which are upsetting to AB. She maintains that her actions in relation to the alleged sexual assault were appropriate. Under cross examination she said there would have been no utility contacting BC about the matter earlier than she did, and that it was appropriate that she be the person to accompany AB to the hospital. She denied that she has spoken with AB about this since then. She does not accept that the alleged assault did not occur, noting that a urinary tract infection is not inconsistent with a sexual assault and that AB’s account of the incident was broadly consistent when talking with her and the doctor and somewhat consistent when talking with the police. She denied that she spoke to other people about it or that she told other people that AB was not happy at the ACF

46. CNW said that she does not generally talk with AB about her healthcare, and she said she raised the issue of AB’s finger on 12 September 2015 because of the urgency to notify staff. She said that she did this calmly and also observed that any upset AB experienced was because of the staff member’s approach, and not hers. Under cross examination she agreed that on another occasion she had administered AB with a rectal suppository for constipation, without any discussion with ACF nursing staff or AB’s doctor. She said she did not think to discuss it with anyone. She agreed that it was inconsistent with her professional training as a registered nurse to do this. She said that she had contacted a GP prior to this, but conceded that the GP had never met AB and that she was aware that AB had her own GP, as well as the nursing staff at the ACF.

47. CNW said that she does not and will not raise the topic of AB’s clothing and gave an account of an occasion in September 2013 when she bought AB clothes that were too small and had to replace them. She said that her siblings returned them to her when she sent BC the larger sized clothes.

48. She gave a different account of the incident of 12 September 2015, denying that she delayed leaving the premises or tried to enter AB’s room. She asserts that the nurse in attendance is not objective towards her and has fabricated this story about her. She referred to difficulties she has had with a number of the staff at the ACF.

49. CNW asserts that the condition which prevents her from bringing another person to the visit with AB is without any foundation. She had sometimes brought friend, who had also known AB for many years and who AB was always happy to see.

50. CNW says that she has been unable to visit AB since December 2015 because of the terms of the decision under review. Prior to the decision she was unable to visit between September and November 2015, visited once in December 2015 and has not visited since. She expressed concern that if she does visit she will be held responsible if AB becomes upset, even if she has done nothing to upset her. She asserts that it is inconsistent with her sister’s wellbeing and interests for her contact with CNW to be curtailed by the decision under review. Under cross examination she agreed that apart from requesting a review of the decision she had not taken action to try and address or clarify the situation, by, for example talking with her siblings or with Ms Sciberras. Instead she had again withdrawn herself from AB for an indefinite period

ASSESSMENT OF EVIDENCE AND FINDINGS OF FACT

51. Although CNW denies that she plays a part in any distress AB is observed to demonstrate during or after her visits, she does not deny that her sister may have been upset in some way on various occasions. She suggests there may be other reasons for her sister’s upset. However the consistent evidence from other sources, including the independent supervisor and ACF staff, indicates that CNW has on these occasions behaved in ways which have caused her sister distress. There is nothing before me which satisfies me that the evidence about this is unreliable. Nor do I accept the submission that there is a lack of clarity in the Public Guardian’s reasons about what constitutes “distress” and what may be causing it. I am therefore satisfied that there have been occasions since 2013 where AB has been observed to be distressed or otherwise upset after contact with CNW and that this is causally related to CNW’s conduct.

52. I am satisfied that irrespective of the exact details of CNW’s discussion with the ACF staff member on 12 September 2015, CNW did raise matters regarding AB’s medical care with staff and challenged staff in AB’s presence about the adequacy of her care. CNW acknowledged in her oral evidence that this demonstrated a lapse of judgement on her part which risked distress and anxiety to AB. I am satisfied that CNW’s actions did cause distress and anxiety to AB as observed and reported by the ACF staff and BC.

53. I am also satisfied from CNW’s own evidence that she has made unilateral decisions regarding AB’s medical treatment and administered medications without consultation with her medical team. Given her training as a nurse, this demonstrated poor judgement. It is also relevant to note that the medication she administered was in a suppository form, rather than a tablet or medicine because the administration of a suppository is significantly more invasive and intimate.

54. I am satisfied from the available evidence indicates that CNW has at times since renewing contact in 2013 has acted unilaterally in regard to AB’s health and welfare and has elected not to discuss these matters with her siblings or the professionals who provide care for AB. Relevant examples of this include the alleged sexual assault and her treatment for constipation. CNW’s lack of communication with others involved in AB’s life about important matters is not in her sister’s interests.

55. I am satisfied from the available evidence that CNW is unable to deal constructively with challenges to her views about AB’s needs. This is demonstrated by her decisions to withdraw from AB’s life for extended periods of time. AB’s welfare and interests do not appear to be a factor in CNW’s decisions to withdraw her company, love and affection from her sister, despite her avowed care and concern for her.

56. I am not satisfied that there is any evidence that there have been any problems for AB as a result of CNW being accompanied on access visits by a friend.

APPLICATION OF PRINCIPLES

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

57. It is not disputed that AB has indicated a desire to have contact with CNW. The decision under review gives effect to this desire. There is no evidence before me about AB’s views regarding the conditions imposed on that contact.

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

58. This principle must necessarily be balanced against other more “protective” principles such as the requirement that people with disabilities must be protected against neglect, abuse and exploitation, and in that context, freedoms which we all enjoy should be restricted as little as possible.

59. CNW has known her sister for all of her life. She is also a qualified health professional. On the basis of her experience in both of these roles, it is to be expected that she should be able to act in a way which minimises stress for her sister, and maximises her enjoyment of their time together. However her explanations for the matters relied upon by the Public Guardian do not indicate to me that she would act differently if a similar situation arose. On this basis I was satisfied that it is necessary to impose careful restrictions on the freedom of the relationship between AB and CNW. The restrictions set out in the decision under review, requiring supervised contact and a limit to topics which can be discussed provide a reasonable balance between AB’s freedom of action and ensuring that she is not exposed to subjects or conduct known to upset her.

60. I noted that CNW indicated that she does not (as a rule) discuss the matters which she is restricted from raising with AB. If this is the case then it is arguable that there is no imposition on AB if CNW is prohibited from raising them. If AB raises them herself, it is reasonable to suppose that CNW, by virtue of her relationship with AB and her professional skills, would be capable of redirecting the discussion into less controversial areas.

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

61. AB lives in the ACF and the decision under review does not relate to her accommodation or engagement with the community, except to the extent that CNW has requested to be able to take AB on outings from the ACF. Again this must be balanced with the protective principle referred to earlier. As there is a need for contact to be supervised at this time, as a practical matter limiting the access to the ACF is reasonably necessary.

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

62. AB’s family relationships are central to this decision, which seeks to provide an opportunity for AB to maintain a relationship with CNW, in the context of legitimate concerns about some of CNW’s conduct.

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

63. This principal is not at issue in this decision.

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

64. The conditions imposed on the access between AB and CNW relate directly to this principle, which has been discussed earlier in relation to the second principle.

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

65. This principle is not relevant to my decision.

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

66. This principle requires me to consider, very broadly, whether the welfare and interests of CNW would be better advanced by some other access arrangement than the one determined by the Public Guardian in January 2016. This principle is to be given “paramount consideration” so I have considered it last.

67. At the risk of being repetitive, AB wants a relationship and contact with her sister CNW, but has in the past become distressed by some of the actions and comments made by CNW. These matters can be predicted to a certain extent. CNW has been unwilling to accept that her conduct has upset her sister in any way. An access order with conditions is a means to ensure that ongoing contact is possible, in a way which limits the possibility that AB will be upset by the contact, but that she does receive the benefit of regular and enjoyable contact with her sister. A regular and harmonious relationship with CNW is clearly in AB’s interests and is consistent with her wishes. Sadly CNW has not felt able to comply with the conditions and thereby continue the contact with her sister, but this does not, in my view provide a basis to change the decision.

68. The only aspect of the conditions which did not seem to me to be a response to a well founded concern was the requirement that CNW “refrain from bringing people other than family” to the visits with AB. CNW said that the friend she had brought on occasion is also a friend of AB’s and that AB has enjoyed spending time with her. There are no reports that this friend or any other person CNW has brought with her have caused any distress to AB or contributed to any situation which has caused her distress. The only rationale for this aspect of the decision seemed to be that having another person there may caused confusion and that the visit provided an opportunity for AB to spend time with CNW and not other people. In the circumstances I considered that this was an unnecessary restriction which unreasonably imposed on AB’s freedom to associate and engage with others.

Balancing of Principles

69. Having considered the application of the principles in s 4 of the Guardianship Act 1987, I find that, taken as a whole, they favour enabling regular access between AB and CNW, under certain conditions. I have given paramount consideration to CNW’s welfare and interests and, for the reasons above, they are best served by the access arrangements determined by the Public Guardian in the decision under review with the small variation regarding the restriction on CNW bringing another person with her to the scheduled visits. .

70. The main disadvantage of the decision is the imposition of an artificial limitation on the open relationship between sisters. These considerations are not to be dismissed lightly. However, in the Tribunal’s view, these factors are not sufficient to outweigh the considerable risk of predictable distress to AB if she the conditions were not imposed.

71. For these reasons, I have decided to vary the Public Guardian’s decision to the extent that the restriction on CNW bringing another person to the visits with AB is removed.

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: 11 January 2017