DPE v Public Guardian

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…