CT and ALT
[2014] WASAT 42
•4 APRIL 2014
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: HUMAN RIGHTS
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION: CT and ALT [2014] WASAT 42
MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)
MR J MANSVELD (SENIOR MEMBER)
MS C WALLACE (MEMBER)
HEARD: 14 FEBRUARY 2014
DELIVERED : 4 APRIL 2014
FILE NO/S: GAA 682 of 2014
BETWEEN: CT
Applicant
AND
ALT
Represented person
Catchwords:
Guardianship Application for a warrant to enter premises under s 49(1) of the Guardianship and Administration Act 1990 (WA) Requirements before warrant granted Need for urgent action
Legislation:
Guardianship and Administration Act 1986 (Vic), s 26
Guardianship and Administration Act 1990 (WA), s 4, s 49, s 49(1), s 49(1)(a), s 84
State Administrative Tribunal Act 2004 (WA), s 46(1)
Result:
Application withdrawn
Summary of Tribunal's decision:
CT and NT are the joint limited guardians of their daughter, ALT. CT applied to the Tribunal because ALT had left the family home and CT and NT were concerned that ALT is vulnerable to abuse. CT was seeking the issue by the Tribunal of a warrant to enter, by force if necessary, the premises where he believed that his daughter was residing. He submitted that the matter was urgent and that the Tribunal should grant the warrant, notwithstanding the fact that the matter was being heard in the absence of both ALT and the owner of the premises in question.
The Tribunal concluded that there was no evidence to suggest that ALT was at any immediate risk and was not satisfied that CT had made any attempt to contact the owner of the premises to establish whether he would be permitted to talk to his daughter. The Tribunal accordingly adjourned the matter to allow time for submissions to be made by both ALT and the owner of the premises. The Tribunal also requested a report from the Office of the Public Advocate about the current whereabouts and welfare of ALT.
CT and NT then sought and were given permission to enter the premises and they spoke to their daughter. CT subsequently applied for leave to withdraw his application and the application was withdrawn.
Category: B
Representation:
Counsel:
Applicant: Mr M Cuomo
Represented person : N/A
Solicitors:
Applicant: Legal Aid Commission of Western Australia
Represented person : N/A
Case(s) referred to in decision(s):
MW (Guardianship) [2008] VCAT 1181
REASONS FOR DECISION OF THE TRIBUNAL:
Background
The background to this matter can be stated quite briefly. In November 2009, CT and NT applied to the Tribunal under the Guardianship and Administration Act 1990 (WA) (GA Act) seeking to be appointed guardians and administrators for their daughter, ALT, then nearly 18 years old. The application was accompanied by medical and psychological reports indicating that ALT suffered from a moderate intellectual disability. The grounds cited for the application were that ALT had left the family home and was living with people of whom they strongly disapproved. CT and NT expressed concerns that ALT was vulnerable to abuse.
That application was heard on 24 May 2010 and the Tribunal appointed CT and NT as joint limited guardians of ALT with the following functions:
•to decide where ALT was to live, whether permanently or temporarily;
•to decide with whom ALT was to live, and
•to decide with whom ALT was to associate.
The application for an administration order was dismissed.
On 15 May 2012, the order was reviewed and affirmed pursuant to s 84 of the GA Act.
On 27 February 2013, CT approached the Tribunal advising that ALT had again left the family home and was in the company of a male companion. CT considered that the Tribunal had the power to and should issue a warrant for his daughter's return. An officer of the Tribunal informed CT that the Tribunal could not issue a warrant for arrest as he was suggesting, and that a warrant under s 49(1) of the GA Act was not available in the circumstance. However, the Tribunal contacted an officer of the Western Australian Police, who informed that ALT and her companion were no longer in the State and suggested that ALT and her companion were in New South Wales.
This proved to be the case. CT and NT subsequently made an application to the New South Wales Guardianship Tribunal, as a result of which orders were made in March 2013 that CT and NT were to be recognised under the law of New South Wales as ALT's guardians.
ALT eventually returned to the care of her parents in the family home in Western Australia, but in February 2014, ALT again left her parents' home, this time to stay at the residence of PM, a former friend of her parents.
Application
During the afternoon of Friday 14 February 2014, CT made an application to the Tribunal seeking on an urgent basis the issue of a warrant under s 49(1) of the GA Act, to permit him to enter the residence of PM where the represented person, ALT, was residing. CT stated that he wished to speak with his daughter in order to convince her to return to the family home. ALT was at the time of the application 22 years old.
The matter was heard on an ex parte basis on the day of the application, 14 February 2014.
The hearing and the evidence before the Tribunal
The interim application filed with the Tribunal was brief, and no other relevant documentation was provided to the Tribunal prior to the hearing on 14 February 2014. The applicant's solicitor, Mr Cuomo, made some brief opening remarks and then asked the Tribunal to allow the applicant to make his submissions in his own words.
CT made the following relevant comments about his basis for applying for the order under s 49(1) of the GA Act.
Well, the first reason for us we have approached the tribunal because of this lady who she is living with. And this is the first time she took her away from school.
…
And the second time, it was not a copy to her because but she was aware of it had been renewed. And her environment (indistinct) through experience of knowing her for so long, she doesn't care what her own children does. Her son has just been charged of murder. He's in the jail. One of the other daughters, [O] she goes up and down to the mines and back.
…
And one who now who has communicated with [ALT] to thing she's a drug addict and her boyfriend a drug addict and involved with a lot of violent and (indistinct) because of the previous experience when [ALT] she has told us everything. And recently, eight months back, [PM] encouraged [ALT] to meet this boy African boy and she ran away with him to Sydney.
…
But after she came back, she was basically abused by not one African but the African guy's friends. But somehow the police got her back, and that's how (indistinct) feel because this woman doesn't care of what happened to her. She only just says, 'Oh, she's fine," and she manipulates her, and she wants to be a carer for her and take her money.
…
And then, she was telling him that she had attended court with the mother and the thing for the son who has been charged of murder killing a young boy in Balga. So it's very much I concerned of who she the people who come in and going the house.
… . (T:45; 14.02.14).
When the Tribunal asked about ALT's current welfare, CT said this:
Police have called me up and said, 'We have checked her. She's not physically abused or anything.' They checked and she is fine. 'And we cannot bring her home because we have no powers to do that.' (T: 6; 14.02.14).
When CT was asked whether he had sought PM's permission to enter her property to speak to ALT, CT stated:
No.
…
Because the last time when she went, the lady kicked her out of the house and she just left her on the street and the son threatened me, and also she said her brother her big brother will kill me and all this if we come there. So we didn't want to and they are dodgy people, and they can create something and you know, we will be in and I don't want to be in a (indistinct) of a mess. I would rather go through the proper channel through the law and to the police help and you know, try (indistinct) work this thing out. And due to the threat and knowing now the type of people that have been associated with the son and all that, we don't even want to know because, you know, the guy can have a gun, and they're dealing with drugs.
CT's representative confirmed:
CUOMO, MR: The events have rather proceeded on the basis that [CT] would be refused entry which is why
THE D.PRESIDENT: He has anticipated yes.
CUOMO, MR: He anticipates it. It's why he has gone to the police. (T:12; 14.02.14).
Law
Section 49 of the GA Act relevantly provides as follows:
Guardian may obtain warrant to enter
(1)If the occupier or person in charge of premises refuses to allow a guardian to enter those premises
(a)where the represented person is in the premises, for the purpose of performing any function in relation to the represented person; or
(b)for the purpose of ascertaining whether the represented person is in those premises,
the guardian may apply to the State Administrative Tribunal for a warrant to enter those premises.
(2)If upon an application under subsection (1) the State Administrative Tribunal is satisfied that it is necessary for the guardian to enter those premises as mentioned in paragraph (a) or (b) of that subsection, it may issue a warrant authorising the guardian to enter the premises by force if necessary during a particular period or at any time, as the warrant may specify.
(3)A guardian executing a warrant under subsection (2) may be assisted by such persons as he thinks necessary, including a police officer or police officers.
…
In dealing with any proceeding under the GA Act, including an application under s 49(1), the Tribunal is to have regard to the guiding principles set out in s 4 of the GA Act. Section 4 of the GA Act is as follows:
Principles stated
(1)In dealing with proceedings commenced under this Act the State Administrative Tribunal shall observe the principles set out in this section.
(2)The primary concern of the State Administrative Tribunal shall be the best interests of any represented person, or of a person in respect of whom an application is made.
(3)Every person shall be presumed to be capable of
(a)looking after his own health and safety;
(b)making reasonable judgments in respect of matters relating to his person;
(c)managing his own affairs; and
(d)making reasonable judgments in respect of matters relating to his estate,
until the contrary is proved to the satisfaction of the State Administrative Tribunal.
(4)A guardianship or administration order shall not be made if the needs of the person in respect of whom an application for such an order is made could, in the opinion of the State Administrative Tribunal, be met by other means less restrictive of the person's freedom of decision and action.
(5)A plenary guardian shall not be appointed under section 43(1) or (2a) if the appointment of a limited guardian under that section would be sufficient, in the opinion of the State Administrative Tribunal, to meet the needs of the person in respect of whom the application is made.
(6)An order appointing a limited guardian or an administrator for a person shall be in terms that, in the opinion of the State Administrative Tribunal, impose the least restrictions possible in the circumstances on the person's freedom of decision and action.
(7)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
Section 49 of the GA Act has not been the subject of any previous written decisions of the Tribunal.
In MW (Guardianship) [2008] VCAT 1181 (MW), the Victorian Civil and Administrative Tribunal (VCAT) considered what is broadly the equivalent provision of the Guardianship and Administration Act 1986 (Vic) (Victorian Act), namely s 26.
Section 26 of the Victorian Act provides as follows:
Power to enforce guardianship order
(1)If, having regard to the circumstances of the case, the Tribunal considers it appropriate to do so the Tribunal may
(a)when making a guardianship order under Division 2 or 4, specify in the order; or
(b)at any time while a guardianship order under Division 2 or 4 is in force, make an order specifying
that the person named as plenary guardian or limited guardian or another specified person is empowered to take specified measures or actions to ensure that the represented person complies with the guardian's decisions in the exercise of the powers and duties conferred by the guardianship order.
(1A)If the Tribunal makes an order under subsection (1) empowering a guardian or a specified person to take such measures or actions as are specified in the order, the Tribunal must hold a hearing to reassess that order as soon as practicable after the making of that order but within 42 days of making that order.
(2)Where a guardian or other person specified in the order under subsection (1) takes any measure or action specified in the order in the belief that
(a)the measure or action is in the best interests of the represented person; and
(b)it is reasonable to take that measure or action in the circumstance
the guardian or other person is not liable to any action for false imprisonment or assault or any other action, liability, claim or demand arising out of the taking of that measure or action.
(3)Subsection (1) does not limit section 24 or 25.
In MW, a limited guardian sought directions from the VCAT about his authority to have visitors removed from the represented person's home. In its decision, VCAT said this:
25.Section 26 empowers the Tribunal to make orders, while a guardianship order is in force, specifying that [the guardian]… is empowered to ensure that [the represented person] complies with [the guardian's] decisions.
26.Under section 26, the Tribunal may order that an ambulance service, Victoria Police or other service provider may, to [sic] ensure that [the represented person] complies with a decision of her guardian about where she is to live by transporting her to a location directed by the guardian (including breaking and entering premises and using reasonable force, if necessary).
27.However, these orders are rarely made where the represented person has the ability to leave the place to where they are taken and to return to where they have been taken from. It would be difficult to persuade the Tribunal that it should use its power under section 26 to order the detention of a person at a location. In [the represented person's] situation, such an order would seem an unreasonable restriction of her rights.
Findings
Requirements of s 49 of the GA Act
Before the Tribunal can issue a warrant under s 49 of the GA Act to enter premises, it is first necessary that the occupier or person in charge of those premises has first refused to allow entry to the guardian. It was apparent from what the applicant told the Tribunal at the hearing that this requirement had not been met. The applicant had not been refused entry to the premises where he believed ALT was residing. We accept that the applicant had concerns for his own safety if he went to the premises alone. However, there is no requirement under the GA Act that the applicant has to visit the property in person and be refused entry. He could have simply telephoned PM to establish how a request to visit his daughter would be received.
Accordingly, a warrant could not be issued to the applicant and the application must be refused.
Even if, however, that requirement had been met, the Tribunal would then have had to consider under s 49(2) of the GA Act whether it is satisfied that it is necessary for the applicant to enter the premises. What is or is not necessary will always be decided on a case by case basis.
In this case, the application was brought on an urgent basis and the Tribunal did not have the benefit of hearing from PM and from ALT. As noted by the Presiding Member in MW, orders of the nature of a warrant to enter premises can by their nature be extremely intrusive. Accordingly, where an application is made for the issue of a warrant on an urgent basis and without giving the other parties an opportunity to be heard, the Tribunal must be persuaded that there is an actual risk to the safety of the represented person that necessitates proceeding in this way. The material to be relied upon to reach the conclusion of the existence of this risk may include material that would not conventionally be considered as strictly evidentiary in nature.
Despite CT raising serious allegations regarding PM, there was no evidence given to support these allegations and the Tribunal was not persuaded otherwise that there was any immediate risk to ALT's safety.
We informed the applicant accordingly and then adjourned the matter until 27 February 2014 to allow the applicant time to attempt to contact PM and ALT. We undertook in the meantime to arrange for a representative of the Office of the Public Advocate to attempt to visit ALT and PM and to provide a report.
The Tribunal on 19 February 2014 was advised by the Office of the Public Advocate that a representative had visited PM and that she had been cooperative and had allowed CT and NT access to her property. In a written report to the Tribunal, the Office of the Public Advocate relevantly advised the Tribunal as follows:
Based on the information gained during the course of the brief investigation the Public Advocate's representative suggests that the need for a warrant to enter [PM's] premises is no longer valid as [CT and NT] have been able to visit the premises in which their daughter currently resides and to speak with her on more than one occasion. The owner of the property has advised that upon request [CT and NT] would be provided access to the house.
It appears, however, that [CT and NT] feel unable to exercise their decision making authority held within the SAT Order and a review of that order may be more useful to ascertain if it is working in [ALT's] best interest.
The applicant then confirmed to the Tribunal that he had spoken to ALT and that he no longer wished to proceed with his application. He applied for leave to withdraw, which was given, and his application was withdrawn.
Orders
On 25 February 2014 the Tribunal made the following orders:
1.Pursuant to s 46(1) of the State Administrative Tribunal Act 2004 (WA) the applicant has leave to withdraw this proceeding and the proceeding is hereby withdrawn.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE T SHARP, DEPUTY PRESIDENT
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