DPE v Public Guardian

[2018] NSWCATAD 285

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	DPE v Public Guardian [2018] NSWCATAD 285
Hearing dates:	05 December 2018
Date of orders:	05 December 2018
Decision date:	11 December 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The Respondent's decision made on 1 December 2017 which was that "The Public Guardian consents to you travelling to Taiwan where you will undergo residential rehabilitation treatment at a rehabilitation hospital, followed by you being accommodated at your daughter [DQT's] home in Taipei" is set aside. In substitution for that decision the following decision is made:  The Public Guardian consents to you travelling to China where you will undergo residential rehabilitation treatment at a rehabilitation hospital, followed by you being accommodated at your home with your wife, DPE in Shanghai.
Catchwords:	ADMINISTRATIVE LAW – review of decision made by Public Guardian that subject person live with daughter from first marriage in Taiwan – application by current wife for review of that decision – whether in best interests of subject person to live in Taiwan or in China with his wife – relevant principles
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Guardianship Act 1987 (NSW)
Cases Cited:	KD v the Public Guardian [2018] NSWSC 1547
Category:	Principal judgment
Parties:	DPE (Applicant) Public Guardian (First Respondent) DQT (Second Respondent)
Representation:	Counsel: T Morahan (Applicant) M Neville (Public Guardian) M Pringle (Second Respondent)   Solicitors: Chen Shan Lawyers (Applicant) McLachlan Thorpe Partners (Second Respondent)
File Number(s):	2018/00311892
Publication restriction:	Publication of the name of the applicant, the second respondent and the subject person are prohibited.

REASONS FOR DECISION

Introduction

1. In January 2017 a man who I will refer to as Mr X, was in Australia temporarily on business from China. He had a brain haemorrhage which left him with vascular dementia, a cognitive impairment and immobility. Because he required 24 hour nursing care, he was placed in an aged care facility after being discharged from hospital. The consensus is that he will not make any further significant recovery and that he will continue to need 24-hour care.

2. A difference of views between his daughter from a previous marriage who lives in Taiwan, and his wife who lives in Shanghai, led to the hospital applying to the Guardianship Division of the Tribunal for a guardianship order. The Tribunal appointed the Public Guardian to make certain decisions on Mr X’s behalf. In December 2017 the Public Guardian decided to allow Mr X to travel to Taiwan to live with his daughter. His wife wants him to live in Shanghai with her. She has applied to the Tribunal for the decision to be reviewed. Mr X is confused about his past relationships. He cannot reliably name his wife or ex-wives, indicate how many children he has or who they are.

3. When reviewing the Public Guardian’s decision, the paramount consideration is Mr X’s welfare and interests: Guardianship Act 1987 (NSW), s 4. Taking into account that principle, and the other principles listed in s 4 of the Guardianship Act, I have decided that the “correct and preferable” decision is for Mr X to return to Shanghai to live with his wife: Administrative Decisions Review Act 1997 (NSW), s 63.

The decision under review

4. The Public Guardian made the following decision:

The Public Guardian consents to you travelling to Taiwan where you will undergo residential rehabilitation treatment at a rehabilitation hospital, followed by you being accommodated at your daughter [DQT's] home in Taipei.

5. The reason for the decision given on 1 December 2017 was that Mr X’s family in Taiwan had “maintained a close and ongoing relationship” with him for a long time and had actively been involved in his health care and rehabilitation treatment in Sydney. The Public Guardian expressed the view that family support was very important in Mr X’s longer-term rehabilitation process of recovery. The Public Guardian gave more detailed reasons on 3 December 2018 emphasising that three of his children and their families live in Taiwan and that he would have support from extended family. The Public Guardian acknowledged that the wife had also spent time with Mr X in Sydney but that because of her commitments to Mr X’s businesses in China she had not been able to spend extended periods of time with her husband.

6. The Public Guardian also took into account that, despite his significant cognitive impairments, Mr X had told two health professionals that he wanted to be near his children in Taiwan. The Public Guardian also took into account the fact that Mr X had travelled to Taiwan previously for treatment for his heart condition. Particular emphasis was given again to the fact that Mr X’s extended family in Taiwan would be able to provide him with stimulation and support which would enhance his recovery.

7. Rather than requesting an internal review of that decision, the wife applied to the Supreme Court in an attempt to invoke its parens patriae jurisdiction. Kunc J held that this was not an exceptional case which would justify bypassing the legislative scheme for reviewing decisions made by the Public Guardian: KD v the Public Guardian [2018] NSWSC 1547 at [6]. On 11 October 2018, the wife applied to the Tribunal for a review of the Public Guardian’s decision: Guardianship Act, s 80A(1)(a) and Administrative Decisions Review Act, s 63. The parties have adopted various parts of the evidence and submissions in the Supreme Court proceedings as evidence and submissions in these proceedings. Further evidence was provided in the Tribunal proceedings and both the wife and the daughter gave oral evidence.

Relevant principles and the application of those principles to this case

Principles

8. The principles which I must observe are as follows:

(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,

9. Mr X’s medical condition and level of incapacity mean that he cannot express a reliable view about where he should live. It is not possible for him to be self-reliant in matters relating to his personal, domestic or financial affairs. Both Taiwan and China give Mr X the opportunity to live as normal a life as he can in the community. The most relevant considerations are his views, the importance of preserving family relationships and that he is protected from neglect abuse and exploitation. His welfare and interests are paramount.

Mr X’s family relationships

10. There is some evidence that Mr X was born in 1943, which would make him 75 years old although there is other evidence which suggests that he was born in 1955. He married his first wife in 1970, which makes the 1955 birth date seem unlikely. He had three children from his first wife, one of whom is the second respondent. Mr X left his first wife in 1983 when their daughter was 10 years old to live in the United States and has not lived in Taiwan since that time. Mr X apparently married another woman while in the United States.

11. The daughter’s evidence was that she went to high school for a year in the United States in 1988 when she was 15 years old and stayed with her father. Otherwise, she has not lived with him since 1983 although they have communicated and seen each other sporadically over the years. The first wife returned to live in Taiwan in 1990. Mr X moved to China in 1992 and had another relationship. Apparently he had two sons who now live in Canada. The first wife has had no contact with her former husband in the 6 years before 2017.

12. The wife’s affidavit dated 12 April 2018, prepared for the Supreme Court proceedings, gives a detailed history of her relationship with Mr X, their life together, her involvement with his company, her understanding of his health issues and her encounters with his daughter in Sydney. She first met Mr X in 2006 when he interviewed her for a job with his company. She was appointed to the position of Deputy Manager and worked closely with Mr X and his business partners. In 2008 she had a daughter from another relationship, although she does not mention that in her affidavit. In 2011 Mr X promoted her and arranged for her to receive a 33% shareholding in the company. At about the same time she says they commenced a romantic relationship. In late 2012 they started living together and were married on 21 September 2016.

13. There is evidence from the daughter and her brothers which casts doubt on certain aspects of the wife’s evidence including the period in which she and Mr X were living together. In cross-examination in the Supreme Court proceedings the wife acknowledged that although they have been in an intimate relationship since 2012, they owned separate properties in Shanghai and occasionally stayed overnight at their own homes. Despite that evidence, the daughter’s lawyer acknowledged in the Supreme Court proceedings that Mr X has a very strong relationship with his wife.

14. I am satisfied based on all the evidence that Mr X and his wife had been in an intimate relationship since 2012. They were married before Mr X travelled to Australia and he expected that he would return to live with her in Shanghai. Their relationship is a strong one. I acknowledge that Mr X is confused about his past relationships. He cannot reliably identify his wife or ex-wives or how many children he has. The daughter’s lawyer described him as having profound autobiographical amnesia. Nevertheless, it is in his best interests for the relationship with his wife to be preserved, to the extent that that is possible.

15. Both the wife and the daughter say that they will allow the other to visit and to stay with them. However, the wife says that she would only be entitled to a visa allowing her to visit Taiwan once a year for 15 days. She says she is not entitled to a spouse visa. Even if she is entitled to a spouse visa, the adverse effect that separation will have on the preservation of her relationship with Mr X is a significant factor against re-location in Taiwan.

16. The daughter said that there are no visa restrictions on her visiting China but because her relationship with her father is not recognised in China, she does not have the right to visit him there. She said the wife could call the local police and have her removed. I am not persuaded that there would be any problem with the daughter visiting her father in Shanghai if the wife was agreeable to her doing so. The wife said that she was agreeable and I accept that evidence. Mr X and his daughter from his first marriage have communicated sporadically over the years. That relationship could be preserved with occasional visits by the daughter to China.

Mr X’s views

17. Various expert witnesses recorded what Mr X has said when they asked him where he wanted to live. Some experts drew inferences from his responses. The Public Guardian accepted that little if any weight can be given to Mr X’s views. In the Supreme Court proceedings, and in these proceedings, the parties agreed that the views expressed by Mr X as to where he should live were unreliable.

18. In deciding that Mr X should live in Taiwan, the Public Guardian took into account the fact that he had travelled to Taiwan for medical treatment for his heart condition. In the Supreme Court proceedings, the lawyer for the daughter accepted that there was no difference between the standard of medical care available for Mr X’s condition in Taiwan compared to China. More significantly, the parties agreed that he is not going to recover to any appreciable extent from the symptoms of his medical condition. In those circumstances the standard of any rehabilitation facilities which may be available are not an issue. If Mr X understood his current medical situation, the standard of medical facilities in Taiwan would not be a factor in his decision about where to live.

19. The Public Guardian emphasised that Mr X’s extended family in Taiwan would be able to provide him with stimulation and support which would enhance his recovery. While recovery may have been contemplated in 2017 when the Public Guardian made the decision, the consensus now is that Mr X will not recover to any significant extent. Any advantage of having more people available to stimulate and support him is a minor consideration. That consideration is outweighed by the fact that it is in his best interests to preserve his relationship with his wife. I note that neither the wife nor the daughter sought to set aside the Public Guardian’s decision that Mr X undergo residential rehabilitation treatment at a rehabilitation hospital.

Living arrangements

20. The living arrangements, the available equipment and the assistance from carers are equally appropriate. If Mr X returns to live in Shanghai, he would live in an apartment he owns, with his wife, his wife’s 10-year-old daughter and a live-in carer. The wife says she would resign from her job as general manager of Mr X’s companies. The wife’s parents would move in to another apartment in the same building and be involved in his care. That apartment is the business address of Mr X’s companies, although the businesses no longer operate from that address. The wife was cross-examined about why she is still using the address of the apartment as the business address. Her response was that it would be difficult to update the details and she can still receive correspondence at that address. I draw no adverse inference about the wife’s credibility from this evidence.

21. If Mr X moves to Taiwan, the daughter says that she will live with him in a four-bedroom apartment in Taipei owned by one of her brothers. The daughter’s husband, her mother and a full-time carer would also live in the apartment. The daughter would be supported by her two brothers and their wives who live close by.

22. The parties agreed that the other party could adequately care for Mr X. The living and care arrangements are satisfactory in both environments.

Cultural and linguistic environments

23. Mr X has lived in Taiwan and in China. There is no advantage to him living in either place in terms of preserving his cultural and linguistic environments.

Financial capacity

24. The wife is in a sound financial position. Mr X has a commercial insurance policy to the value of RMB5,000,000. The wife says she will claim on that policy if Mr X comes home. He could not claim on the policy if he lives in Taiwan. Because that policy was not in evidence, I am not satisfied that Mr X is eligible to claim under that policy.

25. The wife has paid all the expenses associated with Mr X’s medical care and accommodation in Sydney. Apart from being behind on the payments to the aged care facility for a short period because she lost her credit card, the wife has paid those amounts and they are up to date. I accept her evidence that she can afford to continue to pay for her husband’s care. The daughter has not contributed financially to her father’s care. I draw no adverse inference against the daughter for not contributing to these expenses.

26. Neither the daughter nor her husband is currently working but the daughter gave evidence about their income, savings and investments. She also mentioned that her two brothers would provide financial support. The daughter was cross-examined on some of the evidence she gave in the Supreme Court including about the date of her husband’s retirement and his income. While she has given some inconsistent answers, I draw no adverse inference as to her credibility. I do not need to make findings about any of these matters because I am satisfied that the daughter and her family have sufficient means to care for Mr X adequately.

Protection from abuse and neglect

27. I must also ensure that Mr X is protected from “neglect, abuse and exploitation”. The wife’s lawyer alleges that the daughter “abused” Mr X in January 2018 and in September 2018. In January 2018 he alleges that the daughter “was active in the background” in engaging a lawyer in China to approach the Chinese authorities with a view to having Mr X’s household registration cancelled. The details of his identity on that registration, including his place and date of birth, were incorrect. Because of an application of some kind in China, the registration was cancelled. The wife has commenced proceedings in China to set aside that decision.

28. In the Supreme Court proceedings, the daughter’s mother denied that her motivation for arranging to have Mr X’s Chinese identity documents cancelled was so that he could not return to live in China. Although there is circumstantial evidence which puts that denial in question, I did not hear her evidence and I draw no adverse inference against her.

29. The second allegation is that the daughter contacted Mr X’s business colleagues with the aim of having one of her brothers appointed as Acting General Manager of Mr X’s company. The brothers allegedly went to Mr X’s apartment in Shanghai and took photographs of personal belongings. It is alleged that the daughter arranged for a Chinese lawyer to come to Australia to obtain Mr X’s signature to a Statement of Circumstances, which the wife’s lawyer described as a ‘confession’. There is no dispute among the parties that Mr X did not have capacity to sign that document. The wife has taken steps to inform the authorities in China that Mr X lacked the capacity to do so.

30. The wife’s lawyer submitted that obtaining Mr X’s signature when he did not have the capacity to sign and “dobbing him in” to authorities in China constitutes abuse and exploitation by the daughter and her mother. It was put to her that she was attempting to distance herself from these incidents when in fact she had been instrumental in engaging the lawyer. The daughter gave evidence that she asked her mother to consult a Chinese lawyer. In the Supreme Court proceedings the daughter gave evidence that she and her two brothers had paid the lawyer. She now says that she “never paid a cent to the lawyer”. That evidence is in conflict with evidence the lawyer gave in the Supreme Court proceedings when he said that the daughter paid his fare to come to Australia.

31. The daughter’s explanation for the inconsistent evidence in the Supreme Court was that she had a sore throat and could not speak very clearly. She also said that the transcript was incorrect. While these explanations are not convincing, and reflect adversely on her credibility, I am not satisfied that the daughter knew all the details of what her mother had instructed the lawyer to do. I draw no adverse inference against the daughter in relation to the conduct of her mother or the lawyer.

32. I have taken into account the evidence from the daughter’s mother about a “note” hung on the wall with references to Taiwan. However, that evidence does not allow me to make any findings of fact or draw any inferences relevant to the issues in these proceedings.

Conclusion

33. Mr X’s welfare and interests are paramount. He is not capable of expressing a reliable view about where he should live and is confused about his family relationships. Both his wife and his daughter can accommodate and support him physically and financially. While there are potentially more family members available in Taiwan who would be able to stimulate him, he is no longer a candidate for any significant rehabilitation. There is no advantage to either location in terms of preserving Mr X’s cultural or linguistic background.

33. The wife’s lawyer claims that the daughter has abused her father by engaging a lawyer to take certain action in relation to his affairs in China. That is not a factor against Mr X living in Taiwan. The most significant consideration is that Mr X has a strong relationship with his wife who loves him and wants to care for him. While his daughter is committed to him and is capable of looking after him, his welfare and interests are best served by returning to his home in Shanghai and living with his wife.

Orders

1. The Respondent's decision made on 1 December 2017 which was that "The Public Guardian consents to you travelling to Taiwan where you will undergo residential rehabilitation treatment at a rehabilitation hospital, followed by you being accommodated at your daughter [DQT's] home in Taipei" is set aside. In substitution for that decision the following decision is made:

2. The Public Guardian consents to you travelling to China where you will undergo residential rehabilitation treatment at a rehabilitation hospital, followed by you being accommodated at your home with your wife, DPE in Shanghai.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Amendments

12 December 2018 - typographical error corrected in paragraph 19

13 February 2019 - typographical error corrected in paragraph 12

Decision last updated: 13 February 2019