DYH v Public Guardian

[2022] NSWCATAD 102

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

DYH v Public Guardian [2022] NSWCATAD 102

Hearing dates:

15 March 2022

Date of orders:

23 March 2022

Decision date:

23 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

T Simon, Principal Member

Decision:

1. FFZ is joined as a party to the application. Her name is to be anonymised for the purposes of these proceedings.

2. Leave to amend the application is refused

3. The application for a stay is dismissed

4. The publication of the names of the parties to the proceedings is prohibited.

Catchwords:

ADMINISTRATIVE LAW – review of decision of Public Guardian as to accommodation – leave to amend an application where there has been no internal review – application to join a party

 
PRACTICE AND PROCEDURE – stay of the decision – factors relevant to exercise of the power to stay decision under section 43 of the Civil and Administrative Tribunal Act 2013 (NSW)

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW)
Guardianship Act 1987 (NSW)
Guardianship Regulation 2016 (NSW)

Cases Cited:

None cited

Category:

Principal judgment

Parties:

DYH (Applicant)
Public Guardian (First Respondent)

Representation:

Solicitors:
J Griffiths (Respondent)

Appellant (self-represented)

File Number(s):

2021/00309880

Publication restriction:

Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings is prohibited.

Reasons for Decision

1. DYH, the applicant, is the daughter of the protected person (the mother).

2. By order under the Guardianship Act 1987 (NSW) (Guardianship Act), the Public Guardian is the guardian of the protected person. The Public Guardian may therefore make decisions on behalf of the protected person (see s 21C of the Guardianship Act).

3. DYH made an application to the Tribunal on 1 November 2021 under s 80A of the Guardianship Act. In this application, DYH sought the administrative review by the Tribunal of the decision of the Public Guardian to refuse DYH’s request that the mother live with DYH. I will call this decision of the Public Guardian ‘the 2021 decision’, and I will call DYH’s application to the Tribunal of 1 November 2021 ‘the substantive application’.

4. The Public Guardian made a decision on 8 March 2022 that the mother live with DYH”s sister, FFZ at FFZ’s home (the 8 March 2022 decision). DYH has now applied to amend the substantive application to add a further application for the administrative review, by the Tribunal, pursuant to s 80A of the Guardianship Act, of the 8 March 2022 decision. In accordance with reg 17 of the Guardianship Regulation 2016 (NSW), all decisions of the Public Guardian as a guardian under the Guardianship Act are prescribed for the purposes of s 80A(1)(b).

5. DYH has also sought an interim stay of the 8 March 2022 decision under s 43(3) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

6. FFZ has applied to be joined as a party to the substantive application and to be heard in relation to the present application.

7. These orders and reasons for decision relate to:

1. The application for leave to amend the substantive application.

2. The application for a stay on the 8 March 2022 decision

3. The application for FFZ to be joined as a party.

Non-publication of Names

8. Pursuant to s 65 of the NCAT Act, there is a prohibition against publishing the names of certain persons to whom proceedings relate. If the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), the prohibition includes 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 – see s 65(2) of the NCAT ACT.

9. The term "community welfare legislation" includes the Guardianship Act1987 (NSW) (see Community Services (Complaints, Reviews and Monitoring) Act1993, s 4). These proceedings are for a decision for the purposes of the Guardianship Act 1987 (NSW).

10. Although DYH does not want a prohibition order on the publication of her name, I am satisfied that an order should be made prohibiting the publication of the name of the parties and DYH’s son, so as to preserve the anonymity of the mother.

11. To protect the anonymity of the person under guardianship, I have also referred to the parties and various witnesses by reference to their relationships to each other.

Background

12. Contained in the initial application for review are consent orders made on 20 October 2021, under the Family Law Act 1975 (NSW). They are between the protected person, the protected person’s former husband and DYH’s son, (the grandson). The orders are in relation to the property settlement and affect the property in which the mother has been residing. The orders disclose that prior to 2019 that property was owned by the mother and her former husband as joint tenants. After May 2019 the tenancy was severed and the former husband transferred his half interest in the property to his grandson, DYH’s son. The orders direct that the property is to be sold within 6 months from the date of the orders.

13. The property has since been sold and in her documents DYH has included a copy of the front page of the contract for sale which indicates that settlement is due for 25 March 2022. The Public Guardian has also sought vacant possession of the premises prior to settlement.

14. DYH is seeking a stay on the order of 8 March 2022. However she submits that it is not her intention that her mother should remain in the home and delay settlement. Rather, DYH is seeking a further order incidental to the stay that her mother be accommodated in respite care instead of at FFZ’s house.

Procedural Matters

15. The hearing was conducted by audio link in a virtual meeting room.

16. Given the upcoming settlement date, the stay application was listed urgently. On 10 March 2022 directions were made for the parties to provide documents in relation to the application to amend and the stay application. DYH provided various submissions and documents. In accordance with the directions that had been made, the Public Guardian provided its bundle of documents by email to the Registry at 4.17pm on 14 March 2022. DYH was included in that email.

17. At 5.07pm on 14 March 2022 DYH emailed the Registry forwarding the documents of the Public Guardian and advised:

We advise the tribunal none of these documents were forwarded to us for review or consideration before today.

No current Dr report dated 24 February 2022 for us to make further decisions or be included in the decision.

18. At 7.14pm DYH emailed the Registry and attached reply submissions and opposed the contents of the bundle of documents received from the Public Guardian on the basis they had not previously been provided to her to consider and they had only been received on that day. In essence DYH was claiming a denial of procedural fairness.

19. An application for FFZ to be joined to the proceedings was received by the Tribunal on 11 March 2022 and was placed on the file. DYH was not on notice of that application.

20. At the commencement of the hearing DYH, the grandson and Mr Griffiths for the Public Guardian announced their attendance.

21. Ms Christine Dalas also announced her appearance at the commencement of the hearing. She introduced herself as support person for DYH. Ms Dalas was on the phone from Victoria. There is also a statutory declaration from Ms Dalas contained in DYH’s documents. She states in the statutory declaration that she is a disability advocate and an accountant and has known DYH and the grandson for over a year.

22. FFZ also announced her appearance on the link at the commencement of the hearing. Her mother was with her. DYH immediately raised objection to FFZ appearing on the basis that there was presently in place an Apprehended Domestic Violence Order (ADVO) for the protection of her and the grandson. DYH had included a copy of an interim ADVO in her documents. The terms of the orders are that FFZ must not doing any of the following to DYH or the grandson or anyone they have a domestic relationship with:

A) Assault or threaten them

B) Stalk, harass or intimidate them, and

C) Intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of [DYH or the grandson]

23. I explained to the parties that I did not find that the appearance of FFZ by telephone in the proceedings constituted a breach of the terms of the ADVO.

24. DYH then stated that simply hearing FFZ’s voice over the phone was a breach of the ADVO. She also referred to an incident that had occurred in earlier proceedings in which she was threatened and abused by FFZ.

25. The Public Guardian submitted that the participation and views of FFZ were essential to determination of the stay application as the decision made by the Public Guardian was for the mother to live with FFZ.

26. I adjourned briefly to consider the matter. On recommencement of the hearing DYH stated that she felt so stressed by the participation of FFZ in the proceedings that she had called an ambulance. I asked whether she could still proceed in the circumstances and she indicated she could, but that the ambulance had been called and would be coming. There was no further mention of the ambulance arriving after that.

27. The Tribunal put to the parties that in order to deal with the issues raised, the Tribunal proposed to adjourn for a couple of days. That would allow DYH to receive the application of FFZ to be joined as a party and properly consider the documents of the Public Guardian which had been provided the afternoon before. The parties could then make written submissions on the application of FFZ to be joined as a party. I also put to the parties that given the ADVO and the issues raised in relation to the documents, they may provide submissions on whether the stay application and application for leave to amend can be dealt with on the papers and the matter could still be dealt with relatively quickly and prior to the settlement date.

28. DYH opposed that course of action and instead suggested a different course. She was satisfied to make her submissions and remain and listen for the submissions of her son and Ms Dalas. The Public Guardian then noted that Ms Dalas was from the Australian Association to STOP Guardianship & Administration Abuse and had appeared in a recent program regarding guardianship matters. Ms Dalas agreed she was an advocate but that she was only appearing in the role of support worker and did not want to make any submissions.

29. I explained to DYH that her suggested course of action would mean that she would not hear or be able to reply to what was being said in her absence. DYH then indicated that regardless she wanted to proceed in the manner she had proposed. DYH and the grandson then proceeded to make submissions. DYH subsequently agreed to remain present for the submissions of the Public Guardian.

30. I note that part way through the submissions of the Public Guardian, the grandson stated that DYH had not received the documents being referred to. It was put to DYH that they formed part of the bundle of documents that had been provided by the Public Guardian the day before and which she had advised she had received. She agreed that she had received them but had not realised that there were two separate Initial Occupation Therapy Reports. She was satisfied to deal with the matter by making submissions in reply.

31. Despite being told that they could continue to participate in the hearing while FFZ made her submissions, DYH, the grandson and Ms Dalas all left the hearing at the point that FFZ was making submissions.

Application to be joined to the proceedings

32. FFZ seeks to be joined as a party to these proceedings as she is the daughter and carer of the mother. DYH objects to FFZ being joined as a party on the basis that there is an interim ADVO for her and her son’s protection. She also stated that FFZ has previously threatened and made accusations against her during proceedings.

33. Section 44 (1) of the NCAT Act allows the Tribunal to join a person as a party to proceedings ‘if the Tribunal considers that the person should be joined as a party.’

34. Rule 27 of the Civil and Administrative Tribunal Rules 2014 (NSW)(the Rules) 27 governs parties to proceedings administrative review decisions. It relevantly provides:

The parties to proceedings for a general decision or administrative review decision are—

(a) the applicant, and

(b) if an order or other decision is sought from the Tribunal in respect of a person or body (other than the applicant)—the person or body in respect of whom the order or other decision is sought, and

(c) if the Attorney General or another Minister intervenes in the proceedings under section 44 of the Act—the Attorney General or Minister, and

(d) any other person who is made a party to the proceedings by the Tribunal under section 44 of the Act, and

(e) any other person required to be joined or treated as a party to the proceedings by a Division Schedule for a Division of the Tribunal, enabling legislation or the procedural rules.

35. There is evidence to suggest that FFZ is her mother’s carer. The mother has been living in the residence being sold and in an Initial Occupation Therapy Reports, dated 24 January 2022 and contained in the documents of the Public Guardian, is an assessment relevant to the property being sold. It notes that FFZ and her brother were the carers for their mother. Even though leave to amend the application has not been granted, given the fact that FFZ is a carer of the mother, I find she should be joined to this application. An application can always be made for FFZ to be removed as a party pursuant to s44 (2) of the NCAT Act.

36. In relation to the ADVO, I have considered the terms and do not find the ADVO prevents FFZ from being added as a party or from participating in legal proceedings. I also do not accept that simply because FFZ is participating in proceedings that it constitutes a threat, harassment or intimidation to DYH. Section 38 of the NCAT Act allows the Tribunal to determine its own procedure and any issues raised by the ADVO can be dealt with in the way the Tribunal determines its procedure and runs the hearing.

Application to Amend

37. Section 80A of the Guardianship Act allows for an application to be made to the Tribunal for an administrative review of the decision of the Public Guardian under the Administrative Decisions Review Act1997 (NSW) (ADR Act)

38. Section 53 of the ADR Act gives DYH a right of internal review in relation to the 8 March 2022 decision. Section 55 of the ADR Act says:

(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).

39. DYH is seeking leave to amend the application for the Tribunal to review the accommodation decision of 8 March 2022.

40. The Public Guardian does not oppose the request to amend the application. However, they note that an internal review has not been conducted in accordance with s 53 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act). DYH states that her former de-facto partner, who is a solicitor, has asked the Public Guardian for reasons for the decision. The Public Guardian indicated they had not understood that request to be a request for an internal review and in any case 21 days has not yet passed since the request had been made - see s 53 (6) of the ADR Act.

41. While I accept that a request for leave to amend an application does not constitute a new application, the request is for review of a different decision to the one which the initial application relates.

42. DYH is, as an interested person, is entitled to seek an internal review of the decision. Even if DYH’s former partner has made a request for an internal review (I make no finding in that regard at this stage), 21 days has not yet passed since the making of that request or since the accommodation decision was made and no internal review could have been finalised. On that basis ‘an application may not be made’ and I would decline leave to amend the application.

43. Section 55(4) of the ADR Act sets out two exception to the requirement for an finalisation of an internal review before making an application:

(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:

(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or

(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.

44. Section 55(4)(a) would not apply in these circumstances as the time for making an application for internal review (28 days) has not yet passed - see s 53(2)(d) of the ADR Act. In relation to s 55(4)(b), I must consider whether it is necessary for the Tribunal to deal with the application in order to protect DYH’s interests. DYH agreed that the mother could not remain in the property as settlement of the sale of the property is set to occur on 25 March 2022. I am not satisfied that it is necessary that any application for review of the decision of 8 March 2022 is required prior to finalisation of the internal review to protect the interests of DYH.

45. I am also mindful that a request for reasons seeks an explanation for an existing decision. An application for an internal review seeks the review of that existing decision, with the possibility that a fresh and different decision will be made. They are not the same thing. A request for reasons is not a request for an internal review. The outcome, therefore, must be that no leave can be given to DYH to amend the substantive application.

46. Section 3 (a) sets out that one of the objects of the ADR Act is to

(a) to provide a preliminary process for the internal review of administratively reviewable decisions before the administrative review of such decisions by the Tribunal under this Act,

47. The providing of reasons for decision and internal review process provide an opportunity for an agency to examine the information and explain the decision. I find no reason why I should circumvent that process by allowing leave to amend the application for review of the accommodation decision and on that basis leave to amend the application is refused. It remains open for DYH to make a separate application in the future once the internal review decision has been finalised.

The Stay

48. Section 43(3) of the NCAT Act provides,

(3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending general application or appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal.

49. It is a pre-condition of the exercise of the power to stay a decision that the decision be a decision ‘to which a pending general application or appeal relates’. To come within the scope of s43(3), the stay cannot be in relation to the 8 March 2022 decision, because for the reasons given above I have declined leave to amend the application. The 8 March 2022 postdates the 2021 decision. The substantive application relates to a purported decision made by the Public Guardian, refusing an application made by DYH for her mother to live with her. That application made by DYH to the Public Guardian 3 October 2021 in included in the application made by DYH in the application The application to the Public Guardian proposed that the mother live with and the grandson until she is assessed for a nursing home. DYH also proposes that in the alternative her mother to live in a nursing home which DYH has nominated and which reflects the community from which the mother is from. While, in my view, the stay application does not relate to the substantive application, as that stay application relates to staying the accommodation decision made for the mother to live with FFZ. On that basis I would dismiss the application for a stay.

49. However, if I am wrong in relation to the application of the s43(3) and a more broad approach could be taken on the basis that the stay relates to accommodation of the mother, which is the subject matter of the substantive application, having considered the submissions and documents of the parties, I would not be satisfied to make an order for a stay or make any further order for alternative accommodation for the reasons that follow.

50. DYH concedes that her mother is required to vacate from the house where she currently resides because settlement of the sale will occur on 25 March 2022.

51. At the hearing the grandson stated that due to her age and health FFZ was not fit to look after her mother. He also stated that FFZ has dogs and cats and the mother is not used to living with animals. FFZ stated she is 62 years old and while she has some medical issues, her age and medical issues do not prevent her from looking after her mother.

52. DYH submits that the mother should be moved to respite care to give her the opportunity to see all her family and friends because at present neither DYH nor the grandson can see the mother at FFZ’s house. She also submits that her views have not been properly obtained from the Public Guardian in relation to the various alternatives for accommodation. DYH submits that her mother does not know her by her anglicised name and only knows her by her given name and so when people ask her mother about living with her (using her anglicised name), she does not know who they were speaking of. DYH also submits that the Initial Occupation Therapy Report indicates that her mother needs 24 hour supervision and that is not care that FFZ can provide.

53. In an email contained in the Public Guardians documents, DYH’s brother has provided his views to the Public Guardian in relation to the accommodation of his mother. He states that he has been caring for his mother, with FFZ, for the last 4 years and he opposes his mother living in a nursing home.

54. The statements and submissions demonstrate that there is a high level of family conflict between the siblings. FFZ and the brother are in agreement on one side and DYH is on the other. Many accusations are made by the siblings against each other.

55. However, having considered the evidence, I do not accept the submission of DYH that to live with FFZ would constitute a danger to the mother.

56. Contained in the documents of the Public Guardian is a report dated 16 December 2021, from a Specialist in geriatric medicine. The Specialist reviewed the mother and states that the mother has dementia and a series of other health problems. The mother is 83 years old. The review by the Specialist was conducted at the request of the Public Guardian and was undertaken both in the presence of FFZ and without FFZ. The mother expressed her desire to remain at home with family. When the Specialist interviewed the mother alone, she did not express concerns about her safety or interactions with family members or others. The report indicates that the mother receives assistance from family and care through an Aged Care Package, 3 to 4 days a week. The report concludes that the mother exhibits significant cognitive impairment and that regarding her functional needs she requires constant supervision and/or support. The report also notes:

Evaluation of whether her current supports are sufficient to meet her needs would be best addressed through an occupational therapist assessment of her functional abilities and evaluation of her home environment and available supports.

58. Also attached to the bundle of documents from the Public Guardian are two Initial Occupation Therapy Reports. The first is dated 24 January 2022, and is an assessment of the property being sold. It notes that FFZ and her brother are presently the carer’s for the mother. The mother also has a Level 3 Home Care Package which provides the assistance for 3 hours on Monday, Tuesday, Wednesday and every second Thursday to aid with personal care tasks, social interaction and clearing. Lawn maintenance is provided on a monthly basis. The report concludes that the mother’s current situation ‘is considered suitable at present’. That is based on the combination of informal (family) and formal supports, the outcome of the assessment and the mother’s desire to ‘stay at home’ this

59. The second report was conducted via video call on 28 February 2022 in relation to the mother’s accommodation at FFZ’s residence. The report concludes that the residence appears appropriate for the mother with few steps and minimal clutter and notes that only some minor modifications will be required. The report also notes:

Overall no significant concerns regarding [the mothers] transition to [FFZ’s] residence was identified during the assessment.

60. Also contained in the documents is a report dated 7 March 2022 from the mother’s dentist, presumably this is because an earlier issue has been raised in relation to the state of her mother’s teeth. The dentist states that the mother has been a patient since 28 November 2021 and has attended for 7 appointments. The mother was accompanied on many of those occasions by FFZ.

61. Also included in the documents of the Public Guardian is a file note of a telephone conversation with the Public Guardian and the Specialist in Geriatric Medicine who had provided the report of 16 December 2021. The specialist indicates that although he did not ask whether the mother whether she wanted to live with FFZ or in aged care, he had never observed and no concerns had been disclosed to him, about the mother living with FFZ. He also indicates that given her dementia, it would be less disruptive if the mother continued to live with and be supported by her family, rather than moving to a new environment with new people.

62. The Public Guardian has provided an email trail in which the view of a carer from the aged care provider is obtained. The carer notes that the mother is fearful living away from FFZ and her brother and has expressed a preference for moving in with FFZ and her granddaughter. She also states that placing the mother in respite care so soon after the sale of her home may result in further upset and confusion of the mother. She believes that living with FFZ would be the best option in light of the COVID-19 climate and the visiting restrictions in place across aged care facilities.

63. The Public Guardian has also included records of enquiries it has made about how the matter would affect FFZ’s public housing, the status of mother in public housing and other financial matters.

64. Having considered all those matters, I find no urgent considerations which would warrant the making of a stay order or alternative order for accommodation. The preliminary evidence provided from the specialist, carer, dentist and Initial Occupation Therapy Reports indicates that the accommodation at FFZ’s house is adequate for the mother and that despite the concerns of DYH and the grandson, there is no immediate danger to the mother’s safety. While it is noted that the mother requires 24 hour supervision, the reports indicate that the combined care from FFZ and the aged care provider is adequate to achieve this. They also note that the residence of FFZ (subject to some minor modifications) is adequate to accommodate the mother.

65. While issues have been raised by DYH in relation to the financial and family implications of the accommodation decision, they are matters that can be dealt with in due course and could be dealt with as part of any future application for review of the decision. Those considerations do not amount to urgent considerations which would warrant the making of the stay application, even if I could.

66. Considering what the interests of justice require, I would not be satisfied that in case, that a stay order should be made and would dismiss the application.

Conclusion

67. The matter will now be listed separately for directions to be made for the substantive application to progress the matter to final hearing. The Registry will advise of the new date for the directions hearing shortly.

68. I make the following orders:

1. FFZ is joined as a party to the application. Her name is to be anonymised for the purposes of these proceedings.

2. Leave to amend the application is refused

3. The application for a stay is dismissed

4. The publication of the names of the parties to the proceedings is prohibited.

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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

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

24 March 2022 - The Respondent’s Solicitor, as listed on the cover sheet and at par 20 of the reasons for decision, should read J Griffiths, rather than J Griffith.

Decision last updated: 24 March 2022