DYH v Public Guardian

[2021] NSWCATAD 136

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

DYH v Public Guardian [2021] NSWCATAD 136

Hearing dates:

15 February 2021

Date of orders:

24 May 2021

Decision date:

24 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J S Currie, Senior Member

Decision:

Matter No. 2020/00341901:

The decision by the Public Guardian is affirmed.

Matter No. 2021/00011720:

The decision by the Public Guardian is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW- decisions by Public Guardian as guardian appointed under guardianship order, concerning person under guardianship’s place of accommodation and access to others. Obligations of the decision-maker under Guardianship Act 1987 (NSW)- s4 principles. Each decision complied with s4 and was and the correct and preferable decision.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW); s63

Civil and Administrative Tribunal Act (No.2) 2013 (NSW); ss36, 63,65

Guardianship Act 1987(NSW); ss4, 80A

Guardianship Regulation 2016 (NSW )clause 17

Powers of Attorney Act 2003 (NSW),s36

Cases Cited:

BJF and Anor v Public Guardian [2014] NSWCATAD 141

Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60

McDonald v Guardianship and Administration Board [1993] VR 521

P v NSW Trustee and Guardian [2015] NSWSC 579

Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513

WL v NSW Trustee and Guardian [2011] NSWADTAP 22

YG and GG v Minister for Community Services [2002] NSWCA 247

ZDU v ZDV [2017] NSWCATAP 197

Texts Cited:

The Concise Oxford Dictionary of Current English (6th edition)

Category:

Principal judgment

Parties:

DYH (First Applicant)
EIV (Second Applicant)
ENC (Third Applicant)
Public Guardian (Respondent)

Representation:

First Applicant (For All Applicants)
Respondent (Self Represented)

File Number(s):

2020/0034190; 2021/00011720

Publication restriction:

The publication of the name of any of the Applicants and of the person subject to the decision under review is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

What is this matter about?

1. This matter involves the Tribunal’s review of two decisions by the NSW Public Guardian, which were made in the Public Guardian’s capacity as the appointed guardian of PQX. The review of those decisions was sought by one of PQX’s daughters DYH, her grandson EIV and her estranged husband ENC. DYH represented the other two Applicants at the hearing.

PQX’s background, her family members and her established disabilities

2. PQX is aged 81 years. She has been diagnosed with dementia in the form of Alzheimer’s disease. PQX migrated to Australia in 1967 and is of Greek culture and heritage. Her first language is Greek and I understand that she speaks little English.

3. PQX is married to ENC, but they are estranged. ENC has resided mainly in Cyprus over the last 10 years, although, as I understand it, he has made occasional visits to Australia. PQX has two daughters, DYH and PYY and a son LYZ. PQX lives in a residential property in southern Sydney, of which she is a joint owner. Her co-owner was previously her husband ENC but as I understand it, PQX now owns the property jointly with her grandson EIV, who is the son of DYH. PQX’s son LYZ lives in that property with her.

4. It is apparent that there has been and continues to be significant conflict between family members and in particular conflicting views between them as to PQX’s accommodation, care and access to others.

PQX’s Power of attorney

5. On 22 October 2018 PQX executed an enduring power of attorney (“the Power of Attorney”), under which she appointed her son LYZ as her attorney. On the same date she appointed him as her enduring guardian.

The Guardianship Division’s findings and orders

6. On 15 February 2019 the Guardianship Division of this Tribunal received from PQX’s husband ENC an application which sought the appointment of a guardian and of a financial manager for her. A previous application for such appointments had been made by PQX’s daughter DYH in March 2018, but it had been withdrawn and formally dismissed.

7. ENC’s applications were heard on 29 May 2019. At that hearing the Tribunal also conducted a review of the making and of the operation and effect of the Power of Attorney. On that date the Tribunal made the following orders:

1. Most relevantly for these proceedings, a guardianship order for PQX. The Public Guardian was appointed as her guardian. ENC and LYZ each also sought to be appointed as guardian, but the Tribunal found that neither of them met the requirements for appointment. The Public Guardian’s appointment was for 12 months from 29 May 2019. The Public Guardian was given authority to make decisions on PQX’s behalf about her access to others, her accommodation and health care, the provision of substituted consent for her medical or dental treatment and decisions about the services and legal services she required. As I understand it, the Public Guardian’s appointment was subsequently renewed and was in place at the time of the making of the decisions under review in the present proceedings. It was not disputed in the present proceedings that the Public Guardian had the authority to make the decisions under review as PQX’s guardian.

2. The Tribunal decided to undertake a review of the operation and effect of the Power of Attorney. It decided not to make any orders under section 36 of the Powers of Attorney Act 2003, but rather to treat the application for review of the Power of Attorney as an application for a financial management order.

3. The Tribunal made a financial management order for PQX, declaring her estate to be subject to management under the NSW Trustee and Guardian Act 2009 and committing the management of her estate to NSW Trustee and Guardian (“NSW Trustee”).

The Public Guardian’s decisions under review in these proceedings

8. The Public Guardian made two decisions which are the decisions under review in the present proceedings. They were:

1. a decision (“the accommodation decision”) made on 20 November 2020 in exercise of the Public Guardian’s accommodation function. That decision was in response to a proposal from DYH on 2 July 2020 that PQX’s care needs could best be met by placement at a particular aged care facility at Lakemba in southern Sydney (“the Lakemba facility”) and that PQX should be accommodated there. The Public Guardian’s decision was that it did not consent to the proposal; and

2. a decision (“the access decision”) made on 2 December 2020, in exercise of the Public Guardian’s access function. That decision was in response to a proposal from DYH on 2 July 2020 under which she sought weekly contact with and access to her mother. The Public Guardian’s decision was that access to DYH was agreed to on a trial basis, under which PQX would be supported by a formal carer to attend a community setting to meet DYH for morning tea or lunch for up to one hour. The decision and access under it was contingent upon PQX agreeing to see DYH. The Public Guardian emphasised the access proposal was “a one-off decision”, made on a trial basis.

9. DYH lodged two separate applications for administrative review. The first sought a review of the accommodation proposal (NCAT file number 2020/ 341901) and the second sought a review of the access proposal (file number 2020/11720). By consent the applications were heard together.

My decisions

10. It fell to me to determine, in respect of each of the accommodation decision and the access decision:

1. whether the decision was the correct and preferable decision and so should be affirmed; or

2. whether the decision should be varied; or

3. whether I should set the decision aside and make a decision in substitution for it; or

4. whether I should set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations I might make; or

5. whether, at any stage of proceedings, I should remit the decision to the Public Guardian for reconsideration of the decision by the administrator.

11. I decided in respect of both the accommodation decision and the access decision that the decision was the correct and preferable one and should be affirmed.

12. These are my reasons for those decisions.

13. For convenience of reference, the text of relevant statutory provisions which I have referred to is set out in the Appendix to these reasons for decision.

Uncontested facts

14. As I understood it, all facts as outlined at [1] to [9] above were uncontested.

The relevant statutory provisions and possible outcomes

The jurisdiction of the Tribunal

15. Under s 80A (1) of the Guardianship Act an application may be made to this Tribunal for the administrative review of a decision by the Public Guardian, which:

“(a)   is made in connection with the exercise of the Public Guardian’s functions under this Act as guardian; and/ or

(b)   is a class of decision prescribed by the regulations for the purposes of section.”

16. Clause 17 of the Guardianship Regulation 2010 provides that for the purpose of s 80A (1) (b), all decisions made by the Public Guardian in connection with the exercise of the Public Guardian’s functions under that Act as guardian are prescribed.

Standing

17. Under s80A (2) of the Guardianship Act, such an application for review may be made by:

1. the person to whom the decision relates,

2. his or her spouse,

3. his or her carer, or

4. any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision.

18. DYH’s standing was not challenged by the Public Guardian and I am satisfied that she had standing to make her applications as a person whose interests were adversely affected by the decisions under review.

Tribunal’s role in conducting a review

19. Sub-section 63(1) of the Administrative Decisions Review Act 1997 (“the ADR Act”) prescribes the role of the Tribunal in determining an application for administrative review as:

“… to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)   any relevant factual material,

(b)   any applicable written or unwritten law.”

20. Subsection 63(2) allows the Tribunal, for the purpose of making its decision, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

21. The effect of these two subsections is sometimes characterised as the Tribunal being required to “stand in the shoes” of the administrator who made the decision. But that is not entirely accurate. I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] VR 521 at 530 and I am required to decide what the correct and preferable decision is having regard to the material before me. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25], Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

Possible outcomes

22. Subsection 63 (3) of the ADR Act sets out the range of possible outcomes of an administrative review by this Tribunal. Having determined an application the Tribunal may decide:

1. to affirm the decision;

2. to vary it;

3. to set the decision aside and make a decision in substitution for it;

4. to set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations made by the tribunal.

23. Additionally, by operation of s 65 (1) of the Act, at any stage of proceedings the Tribunal may decide to remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

The evidence and submissions

24. I considered a substantial volume of documentary submissions and documentary evidence provided in various stages by the Applicants and the written material provided by the Public Guardian which consisted of the most part of its “reasons for decision” documentation. At the hearing I considered oral submissions from DYH on behalf of the Applicants and from Mr Sean Hosking on behalf of the Respondent, the Public Guardian.

The real issues for determination

The “Guiding Principle”

25. Under section 36 of the Civil and Administrative Tribunal Act 2013 (“the CAT Act”) , the Tribunal must seek to give effect to a guiding principle. That principle is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

26. The Tribunal must comply with that guiding principle when exercising any power or interpreting any provision under that Act or the Rules referred to above and each party to the proceedings and any Australian legal practitioner representing a party is required by the section to assist the Tribunal to do so.

27. In order to comply with the guiding principle, I began by identifying the real issues in these proceedings.

The correct and preferable decision and the section 4 principles

28. As noted above, s63(1) of the ADR Act requires the Tribunal in determining an application for administrative review to decide what the correct and preferable decision is. Clearly, that must involve determining whether the decision under review was the correct and preferable one.

29. Moreover, in determining whether each of the decisions under review here was the correct and preferable one, I must consider the extent of the Public Guardian’s compliance with section 4 of the Guardianship Act. That section sets out important general principles which must be observed by anyone exercising functions under the Act with respect to people who have disabilities.

30. The principles (which I have referred to in these reasons as “the Section 4 principles”) are these:

“(a)   0the 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. “

31. Most significantly, paragraph (a) requires the welfare and interests of the person to be given paramount consideration.

32. Clearly the Public Guardian exercises functions under the Guardianship Act when making a decision as guardian appointed under a guardianship order, as here, and accordingly, in making the decisions under review the Public Guardian was under an obligation to comply with the section 4 principles and in particular to give paramount consideration to PQX’s welfare and interests.

Conclusion: the real issues here

33. It must follow that the real issues for determination here were:

1. whether the accommodation decision was the correct and preferable one, in particular by assessing the extent to which the Public Guardian complied with the section 4 principles in reaching that decision; and

2. whether the access decision was the correct and preferable one, again in particular by assessing the extent to which the Public Guardian complied with the section 4 principles in reaching that decision.

The Public Guardian’s case as to the accommodation decision

The PG ‘s Reasons

34. The Public Guardian’s case was asset out in its “reasons for decision” document dated 20 November 2020 (“the PG’s Accommodation Reasons”) supplemented by oral submissions at the hearing by Mr Sean Hosking, the Public Guardian’s Regional Manager, Southern.

35. In the opening paragraph of the “reasoning” section of the document, the Public Guardian asserted that:

“In making a decision to decline (DYH’s) accommodation proposal the Public Guardian considered the general principles of the Guardianship Act 1987 with particular reference to the principles of promoting (PQX’s) welfare and interests, her capacity to remain living in her own home in the community (rather than a residential facility) and her will and preference.”

36. The PG’s Accommodation Reasons went on to discuss how the Public Guardian, in reaching its decision, had applied each of those elements and other Section 4 principles, namely PQX’s welfare and interests, freedom of decision and action, community life, views, family relationships and cultural and linguistic environments, her self-reliance in personal domestic and financial affairs and her protection from neglect, abuse and exploitation. Some of these elements and principles were treated briefly, but more detailed observations and conclusions were provided for others. In the order in which they were dealt with in the PG’s Accommodation Reasons, these were:

1. “welfare and interests”.

I have dealt with this in more detail at [37] to [39] below.

2. “freedom of action and decision”.

The Public Guardian asserted that PQX’s freedom of action and decision PQX’s continued will and preference are to remain living at home.

3. “community life”.

The Public Guardian asserted that PQX is provided with “24/7” support within her home and continues to access friends, family, services and activities in the community and, as a result of the formal supports funded by her ACAT package, she is able to access the community for shopping and other recreational activities, which she reportedly enjoys.

4. “client’s views”.

The Public Guardian confirmed that one of its officers had visited PQX in her home and spoken to her by telephone with the aid of a Greek interpreter on several occasions and that on the occasions when PQX’s views as to her accommodation had been sought she had consistently maintained a strong view that she does not wish to live anywhere other than her home. As the Public Guardian noted, that was consistent with what PQX told the Psychiatrist at their consultation from 15 October 2020.

5. “family relationships and the cultural and linguistic environments”.

The Public Guardian confirmed that it was its understanding that PQX has access to those family members and friends that she wishes to see and that she is encouraged to maintain relationships. In the Public Guardian’s view PQX’s current family care arrangements also promote her cultural and linguistic identity.

6. “Self-reliance in personal, domestic and financial affairs”.

The Public Guardian noted that PQX’s financial affairs are managed by NSW Trustee under her financial management order and that she was observed to need some assistance with domestic tasks.

7. “Protection from neglect, abuse and exploitation”.

The Public Guardian stated that there was no evidence that PQX had been subject to any neglect, abuse or exploitation under her current living arrangements.

Consideration of welfare and interests and the Psychiatrist’s report

37. The PG’s Accommodation Reasons addressed PQX’s welfare and interests, which, as noted above, must be its paramount consideration. The Public Guardian commenced by noting that PQX received a Level 3 ACAT funding package, that she accessed formal services including assistance with home cleaning and support in accessing the community and that she lived (at that time) with her daughter PYY and her son LYZ who provided her with informal support.

38. The Public Guardian confirmed that, in light of DYH’s opposition to her mother PQX continuing to live at home, it had sought an independent professional opinion and that on 15 October 2020 PQX had attended a consultation with a Staff Specialist Psychiatrist at Calvary Community Health (the Psychiatrist”). Amongst other qualifications, the Psychiatrist is a Fellow of the Royal Australia and New Zealand College of Psychiatry with a Certificate in Old Age Psychiatry. The Public Guardian confirmed that the Psychiatrist had conducted the assessment in the absence of PYY and LYZ.

37. The Public Guardian summarised the Psychiatrist’s opinion as being that PQX’s present living arrangements were suitable and that there was no need to move her into “higher level” care. (PG Reasons page 6). The Public Guardian confirmed that on 18 November 2020 it had received a copy of the Psychiatrist’s written report and had forwarded a copy to DYH on the same day.

Oral submissions

40. In his oral submissions, Mr Hosking confirmed that the Public Guardian continued to rely principally on the factors and principles and its reasons for applying them as set out in the PG’s Accommodation Reasons.

41. In answer to my further questions, I drew to Mr Hosking’s attention the Psychiatrist’s closing observations, to the effect that details as to family visits had been difficult to obtain from PQX at the consultation, due to her memory deficits and inconsistent responses and that, as such “..her expressed preferences over time will provide greater information about this” and that ongoing clinical attention would be provided by her Geriatrician. I asked whether there had been more recent attempts to obtain PQX’s views. Mr Hosking was unable to confirm that that had occurred.

42. Mr Hosking confirmed however, that, in accordance with the Public Guardian’s usual policy and consistently with its duties and obligations as the appointed guardian, the accommodation decision would be subject to ongoing review.

43. Mr Hosking’s central submission was that the Tribunal would find that the accommodation decision was the correct and preferable one and would therefore affirm that decision.

The Public Guardian’s case as to the Access Decision

44. The Public Guardian’s case as to the access decision followed a similar pattern to its case on the accommodation decision.

45. Its case was based on a document which is (apparently in error) dated 22 May 2020 but is more likely to have been generated on or about 22 December 2020 (“the PG’s Access Reasons”). In it the Public Guardian confirmed that a decision about PQX’s access to others had been made on 2 December 2020. That followed a proposal from DYH on 2 July. There was no apparent explanation for that 5-month hiatus, although a partial explanation may have been the delay in the Public Guardian receiving the Psychiatrist’s report, which appears not to have been until 18 November 2020, as noted at [39].

46. The Public Guardian’s decision, which I have referred to above as “the access decision”, was that access would be permitted only in accordance with the following conditions, which for convenience I shall refer to as comprising “the access proposal”:

1. PQX would be supported by a formal carer to attend a community setting to meet DYH for morning tea or lunch.

2. The initial access was to last up to one hour.

3. Access was to be contingent on PQX agreeing to see DYH.

4. The Public Guardian emphasised the access proposal was “a one-off decision”, made on a trial basis to assist the Public Guardian in determining future formal or informal for arrangements for access by PQX to DYH.

47. As with the Accommodation Decision, the Public Guardian’s case consisted of reliance upon the PG’s Access Reasons document and brief oral submissions by Mr Hosking.

The PG’s Access Reasons

48. The introductory section of the PG’s Access Reasons explained that it was not until 18 November 2020 that the Public Guardian received the Psychiatrist’s report dated 15 October 2020 and that in relation to possible trial access arrangements, the Public Guardian took into account the observations in that report that:

“Detail about family visiting was difficult to gain due to (PQX’s) memory deficits and inconsistent responses. As such, her expressed preferences over time will provide greater information about this.”

49. In the “Reasoning” section of the PG’s Access Reasons the Public Guardian emphasised that in considering whether trial access arrangements should be introduced it considered what it termed the “general principles of the Guardianship Act”. When considered in the context of that document as a whole, it is clear that that is a reference to the Section 4 principles (discussed in more detail above).

50. The document then adopted a similar approach to that taken in the PG’s’ Accommodation Reasons, in that the access proposal was measured against what the Public Guardian regarded as the relevant section 4 principles.

51. In the order in which they were dealt with in the PG’s Access Reasons, these were:

1. “Welfare and interests”

The Public Guardian recorded that PQX had maintained during the term of the current and previous guardianship orders that she did not wish to have contact with her daughter DYH and that on several occasions when the possibility of such access was raised with PQX she had become distressed and upset at the prospect of seeing DYH. The Public Guardian said that the trial access arrangement in the presence of an independent third-party carer would provide the opportunity for PQX to choose whether she has contact with DYH “on the day of the access meeting”.(But, as I understood the Public Guardian’s case, that would include the possibility of further access).

2. “Freedom of decision and action”

The Public Guardian contended that the proposed access arrangement would encourage PQX to exercise her freedom of choice within a supported environment.

3. Community Life

The Public Guardian confirmed that PQX is provided with “24/7” support within her home and continues to access friends, family, services and activities in the community and that the family and friends who PQX wishes to see are able to visit her and that that allows her to be supported by them to access the community.

4. Client’s own views

The Public Guardian recorded that it had sought PQX’s views on several occasions in relation to her access to others and that, significantly she had consistently maintained the view that she does not wish to see or speak to her daughter DYH, on the basis that she apparently believes that DYH has caused ongoing “trouble”. The Public Guardian also recorded that on a previous occasion when PQX’s views on access had been sought, she became upset when discussing the topic. The Public Guardian’s view was that the important element in the access proposal was the presence of an independent third-party (a formal care provider) with whom PQX was familiar and who speaks Greek and that is because PQX’s access to that independent third-party will support her if she chooses to participate in the trial access.

5. Family relationships, cultural and linguistic environments

The Public Guardian was of the view that the access proposal would continue:“ to allow the opportunity to preserve PQX’s relationships with all family members and friends who she wishes to see”.

6. Self-reliance in personal, domestic and financial affairs.

I could not glean from the Public Guardian’s comment on this principle how it was relevant to the access proposal.

7. Protection from neglect, abuse and exploitation.

The Public Guardian simply said: “The decision accords with this principle.”

Oral submissions

52. Mr Hosking on behalf of the Public Guardian made brief oral submissions, but it was clear that the Public Guardian relied principally on the PG’s Access Reasons. I understood him to contend that all the views which had been expressed by PQX had indicated that she valued the opportunity to have access to others, despite the fact that her family situation could be considered volatile. In answer to my questions Mr Hosking confirmed that a successful implementation of the access proposal depended upon the independent service provider being able to arrange a suitable venue and time. It was, most importantly, also contingent upon PQX’s own acceptance of the need for access.

53. Mr Hosking also alluded to DYH’s ongoing and sustained criticism of the Public Guardian’s efforts to arrange access. He surmised that this may reflect her misunderstanding of the Public Guardian’s role and its capacity to arrange appropriate access for someone under guardianship, such a misunderstanding being a fairly regular feature of cases where there is family discord. But he emphasised that in this case the responsible staff at the Public Guardian had encountered an unacceptable level of ongoing personal criticism of their genuine efforts to undertake their role in relation to PQX, which had on occasions been expressed in an personally abusive and even obscene way.

The Applicants’ case

The documentary material presented by DYH

54. DYH appeared at the hearing as the agent of the second and third applicants, that is, respectively, ENC and EIV, who took no part in the hearing.

55. Prior to the hearing DYH lodged a substantial amount of documentary material comprising over 220 pages. This included several sets of written submissions and attached documentation, including in particular:

1. a letter to the Tribunal dated 12 January 2021;

2. brief submissions on both the accommodation and the access decision dated 12 January 2021 and lodged on 15 January 2021;

3. substantial submissions consisting of unnumbered pages of text and annexures, again covering both the decisions under review, dated 17 January 2021 and lodged on 25 January 2021;

4. a bundle of submissions consisting of unnumbered pages dated 22 January 2021 and lodged on 28 January 2021;

5. submissions covering the access decision under review, with some relevance to the accommodation decision under review, dated 2 February 2021 and lodged on 5 February 2021;

6. substantial documentation, comprising unnumbered pages, dated 2 February 2021;

7. further substantial documentation, comprising unnumbered pages, dated 8 February 2021;and

8. further submissions covering both decisions under review consisting of unnumbered pages and annexing further (unnumbered) pages, which included copies of certain reported cases which she relied, dated 8 February 2021 and lodged on 12 February 2021.

56. Much of the text of the submissions was in bold font. Substantial parts of it appeared in block capitals as well as bold font. A substantial part of it was repetitive of information or submissions raised previously by DYH. Some of it defeated attempts to ascertain its relevance to these particular proceedings. These features did not facilitate an early understanding of DYH’s contentions, or of the relative importance which she attached to the material which was not presented in bold or in block capitals.

57. I read all of the Applicants’ documentary material. It required substantial re-reading of much of it to unravel and to comprehend some of the contentions. Not all my attempts to unravel and comprehend were successful.

58. At the hearing DYH made substantial oral submissions and responded to the questions I raised.

59. DYH and each of the other Applicants is bound by section 36 of the NCAT Act to cooperate with the Tribunal to give effect to the guiding principle of facilitating the quick, cheap and just resolution of the real issues in the proceedings. The manner in which the Applicants’ case was put through their documentation fell short of full compliance with the guiding principle.

60. However, DYH was unrepresented and (it appeared) not legally assisted in preparing her written submissions and I took those matters into account in seeking to understand the Applicants’ case in respect of both of the decisions under review.

Applicants’ case as to the accommodation decision.

61. Subject to the remarks above, I perceived DYH’s principal contentions to be that the accommodation decision by the Public Guardian deprived PQX of the opportunity to be accommodated in a care facility:

1. which was culturally appropriate to PQX and where she would be provided with accommodation, facilities and care of an appropriate standard;

2. in which there would be greater opportunity for PQX to have appropriate access to family members, some of whom, including DYH, had not seen her for a considerable period. In particular, in DYH’s contention, PQX would be able to have access to and herself and to her grandson EIV. All that would better preserve PQX’s family relationships;

3. in which she would be better protected from neglect (which DYH alleged to have been committed by both LYZ and PYY), from abuse (which DYH alleged to have been directed at her by LYZ) and exploitation, the main source of which, as I understood DYH’s case, is said to be LYZ.

62. Although it was not contended explicitly by DYH, it seems likely that she intended a further contention, to the effect that PQX’s welfare and interests would better be preserved and protected by transferring her accommodation to the nominated care facility.

Applicants’ case as to the access decision

63. I understood DYH’s case to be in essence that the access decision was wrong because the trial access arrangements proposed by the Public Guardian were inappropriate and not in PQX’s best interests and that accordingly the Tribunal should set them aside, or remit them for further consideration by the Public Guardian or (as stated at the top of page 2 of the submission of 8 February 2021) that the decision should be varied as follows:

“… Once (PQX) is in respite for 6 weeks, two weekly monitored visits (should be) scheduled with (PQX) and (DYH) and the grandson (EIV).

64. DYH contended that that would:

“…provide a quicker remedy to preserve family, remove PQX from isolation, where she has the freedom to have visits from her cousins, friends, sister and other relatives.

65. Despite the problems noted above in fully understanding DYH’s submissions, a fair distillation of the Applicants’ grounds of objection to the Public Guardian’s access proposal is as follows:

1. DYH “has no criminal record and no evidence of estrangement conflict or animosity” (submissions of 8 February 2021 page 1);

2. the arrangement proposed by the Public Guardian is harmful and damaging to DYH’s well-being her, is an abuse of human rights and “goes against all humanity” (submissions of 2 February 2021, page 1 at [5], submissions of 8 February 2021, page 1);

3. the evidence produced by the Public Guardian has no substance;

4. the Public Guardian had dealt with these matters in a biased manner, which DYH asserts to have been “directed by PYY and LYZ” (submissions of 2 February 2021, foot page 2);

5. the Public Guardian’s reliance on the Guardianship Act section 4 principles was not borne out by the facts;

6. DYH’s submissions under the heading “Welfare and interests” on page 3 of the submissions of 2 February 2021 seem to assert that there is an ongoing threat to PQX’s well-being from PYY and LYZ, that the Public Guardian displayed little sympathy when those allegations were related to it, that the Public Guardian had not supported meetings or visits with a different Public Guardian representative or by a Greek interpreter, that the Public Guardian had not responded properly or promptly to emails and finally that the Public Guardian’s decision had an impact on the psychological well-being of DYH; and

7. the Public Guardian’s access proposal was a “cruel, inhuman” decision, the effect of which was to “exploit and shame (DYH), like a common criminal”. (Submissions of 2 February 2021, page 3 at [17].)

Case law tendered by Applicants

66. The Applicants also lodged the bundle of reasons for decision in matters before this Division and the Guardianship Division of the Tribunal, which involved guardianship orders decisions or decisions made by the Public Guardian as the guardian appointed under guardianship orders. The Applicants’ written submissions referred in any detail to only one of those decisions: BJF and Anor v Public Guardian [2014] NSWCATAD 141. That matter involved an accommodation decision by the Public Guardian on behalf of CFA, a 95 year-old woman of Italian heritage. The Public Guardian’s decision was that CFA should reside permanently in a nursing home and that decision was affirmed by the Tribunal.

67. I assumed that this case was referred to me by the Applicants because of some perceived similarity in the facts. CFA ‘s family members had a volatile relationship amongst themselves and it was asserted that CFA would be exposed to some traumatic family conflict if she resided at her home, in the care of 2 of her family members, as opposed to living as a permanent resident of a nursing home. (See, Reasons for Decision, 24 June 2014, at [15]).

68. The Public Guardian’s decision in that case involved consideration of what was assessed as the volatile nature of CFA’s family relationships. It observed that she was exposed to potentially traumatic family conflict which would be exacerbated if she were to return home. The Tribunal’s decision, as I read the reasons for decision, largely accepted that that was so. The Tribunal affirmed the decision of the Public Guardian to place CFA in permanent nursing home accommodation. The decision was made on 16 September 2014.

69. There are some parallels between the facts in BJF and those here. For example, the current Applicants seem to make much of the fact that the responsible officer of the Public Guardian in that case was the same as in the present one. But there are significant distinctions between that case and the present one and some that do not support the present Applicants’ position. For example, the Tribunal noted, with apparent disapproval, that the Public Guardian had placed insufficient emphasis on CFA’s own wishes (Reasons for Decision 16.09.14 at [63]) and her welfare and interests (Reasons at [116]-[117]. In the present matter the Public Guardian has clearly considered both those elements.

70. On any proper analysis, the BJF case is of limited facility in deciding the present applications. The decision on any particular case depends on the particular Tribunal Panel’s analysis of the particular facts at the time. Of course, facts and the application of the Section 4 principles to those facts, change over time. The BJF decision is of course not binding on me. I take it into account, but give it only very limited weight in my considerations, because it involved a different family and parties and is a decision of this Division of the Tribunal on the facts of that particular case, determined about 7 years ago.

71. The same comments as to the partial similarity of the facts , the basis on which I should take any case into account and consequently the weight I should give to earlier cases applies to each of the other reported cases referred to by the Applicants in the present matter. They were: EBR v Public Guardian [2020]; WS v NSW Trustee and Guardian [2011], AZV v Public Guardian [2014]; CDJ v Public Guardian [2015] , PZ v NSW Trustee and Guardian [2011] and the following decisions in the Guardianship Division: NQC [2019] NSWCATGD 24, NFK [2020] NSWCATGD 20 and CFM [2014] NSWCATGD 26.

Relevant authorities on the section 4 Principles and their application

72. The principles set out in section 4 of the Guardianship Act are clearly of substantial importance in determining the two present applications. It is therefore appropriate to deal with the leading authorities as to how those principles should be applied.

73. In WL v NSW Trustee and Guardian [2011] NSWADTAP 22 (“the WL Case”), the Administrative Decisions Tribunal Appeal Panel, on which Deputy President Hennessy presided, undertook a detailed analysis of the principles set out in section 4 of the Guardianship Act and observed, at [71], as follows:

“Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 9064 0127, 14 August 1996). The “principles clause” in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles”

74. The Deputy President’s analysis was cited with approval in a more recent consideration of section 4 by the Appeal Panel of this Tribunal in ZDU v ZDV [2017] NSWCATAP 197, where the presiding member was Deputy President Schyvens, the Divisional Head of the Guardianship Division of this Tribunal.

74. Four important aspects of the operation of the section 4 principles emerge from the WL Case and the leading Supreme Court case of P v NSW Trusteeand Guardian [2015] NSWSC 579 (“P v NSW Trustee”).

1. In the WL Case the Tribunal noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4. That must apply with equal force to the Public Guardian in this case.

2. In the WL Case at [76] the Tribunal observed that the section 4 principles are not expressed in absolute terms and that phrases such as “as little as possible” and “as far as possible” make it clear that observing a particular principle does not mean that, where a discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although internally the section 4 principles are not expressed in absolute terms, it is clear that the principle in paragraph (a) is in a special category: the decision-make it is required to give consideration to the welfare and interests of subject person and that consideration must be the decision maker’s paramount consideration. To put it another way, paragraph (a) is always “relevant”.

3. In the WL Case at[75], the Tribunal confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and may demonstrate observation of those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed.

4. In P v NSW Trustee Justice Lindsay, relying on the earlier case of Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at 543 [167], confirmed that:

“… the Guardianship Act should be construed beneficially, having regard to its protective character.

Paragraph (a): “ paramount consideration”

76. Paragraph (a) of section 4 requires everyone exercising functions under that Act with respect to people who have disabilities to observe the principle that the welfare and interests of such persons should be given paramount consideration. The Concise Oxford Dictionary of Current English (6th edition) defines “paramount” in the following terms:

“Adj. of the greatest importance or significance”.

77. I draw the following conclusions as to the scope of section 4:

(1)   As noted at [75](1) above the need for the decision maker to consider the welfare and interests of the subject person is mandatory.

(2) The word “paramount” sets paragraph (a) apart from the other principles in section 4. It is the factor which is required to be given the greatest importance and significance in every case. Put another way, (perhaps in a more contemporary but practical way), the ‘welfare and interests’ principle “trumps” all the other section 4 principles.

(3) It follows that any decision maker should expressly refer to paragraph (a) or provide reasons for decision which demonstrate clearly that that paramount principle has been observed and has been given the greatest importance and significance, then the decision may not have been made properly in accordance with the Guardianship Act.

78. It is also clear, on the basis of the authoritative analysis by Deputy President Hennessy in the WL Case, that if I am satisfied that the Public Guardian has in the present case provided reasons for its decision which demonstrate clearly that all relevant principles have been observed, then the decision will have been made in accordance with the Guardianship Act. It will, absent some overriding fact or legislative provision which impacts on the relevant facts, also be the correct decision.

Consideration- the accommodation decision

Consideration of the parties’ cases as to accommodation

79. In relation to the accommodation decision, the Applicants’ case as presented by DYH rests, to a large degree, on whether the Public Guardian gave sufficient attention and weight to two of the Section 4 principles; namely, the importance of preserving the family relationships and cultural and linguistic environment of PQX (section 4(e)) and the need to protect PQX from neglect, abuse and exploitation (section 4(g). I appreciate that other section 4 principles were alluded to, but a fair review of the Applicants’ case supports particular reliance on those two principles.

Incorrect application of the section 4 principles by the Applicants

80. A fundamental difficulty with the Applicants’ case in this regard is that it appears to be based on the belief that a decision in respect of a person with a disability like PQX cannot be the correct one unless it is made in accordance with all of the section 4 principles, or at least all of the principles relevant to the particular decision.

81. That is not how section 4 works.

82. Section 4 requires only that the decision-maker “observe” the principles. The decision in the WL Case at [76] supports the proposition that observance of a particular s4 principle does not automatically lead to a particular decision being made. Nor does it follow that a particular decision; here, a decision to remove PQX from the family home based on the “family relationships/ cultural/ linguistic” factor, is the only possible “correct decision”.

83. That is so firstly because all relevant principles must bear on the decision and secondly and most importantly, because of the paramountcy of the section 1(a) principle.

84. So, any decision reached on the basis of consideration of the paragraph (b) to (h) principles must pass through the “final filter” of paragraph (a). It cannot be the correct decision unless it is made as the result of the decision-maker having given paramount consideration to the welfare and interests of the person with a disability.

Family relationships and cultural and linguistic environment,

85. There is some persuasive weight to the Applicants’ contentions that a change of PQX’s accommodation to a care facility where Greek is spoken may facilitate her access to the family members who, in the Applicant’s contention have expressed concern for her whilst preserving her cultural and linguistic environment. (There is indeed some evidence of this by way of letters and statements from members of PQX’s extended family.)

86. But that does not itself make the decision the correct one.

87. Additionally, I cannot be reasonably satisfied that continuation of the accommodation status quo, which would occur if the Public Guardian’s decision is upheld, would adversely affect PQX’s family relationships. As the Public Guardian has asserted PQX has access from her home to some close members of the family. There are allegations of previous disruptive behaviour and an alleged assault by LYZ upon DYH, for which an Apprehended Violence Order was issued against him, but PQX was not the Person in Need of Protection under that order and there was nothing before me which indicated a current likelihood that PQX’s relationship with LYZ and PYY would be prejudiced by implementation of the Public Guardian’s accommodation decision.

88. Moreover a stated central purpose of the Public Guardian’s decision was to facilitate renewed contact between mother and daughter (that is, PQX and DYH), provided that PQX wanted to see DYH and that trial access as proposed would:

“…allow the opportunity to preserve (PQX’s) relationships with all family members…who she wishes to see..”

89. Although it is asserted by the Applicants that there has been ongoing disruption to close family relationships and the many of those disruptions appear to have involved an active role by LYZ, it remains the case that current PQX’s accommodation at home does preserve some of her family relationships. It cannot be the law that the section 4(e) principle requires decision-makers to ensure ongoing access of the person with a disability to all his or her family members.

90. I was not persuaded that allowing PQX to remain in the home would deprive her of her cultural and linguistic environment, even though those important environments might also be preserved in a Greek-language care facility.

Protection from neglect, abuse, exploitation

91. It is of course feasible that PQX could be adequately protected from any neglect, abuse or exploitation if she lived in a care facility, but the Applicants did not made out a persuasive case as to a current need for such protection and I could not be reasonably satisfied that there is a real prospect of neglect abuse or exploitation of PQX in her home environment.

92. In the Guardianship Division proceedings DYH alleged that LYZ and PYY had exploited PQX and that someone in the past had made unauthorised withdrawals from PQX’s accounts. But those allegations did not result a finding of wrongdoing against either PYY or LYZ: Reasons for Decision 29.05.19 at [75]. The Tribunal’s relevant finding in those proceedings was that it was unable to determine who made the unauthorised withdrawals and that PQX’s credit card debt had been repaid, even though it found that LYZ had been unable “to adequately explain what those moneys had been used for” (Those Reasons at [77]).

93. There was nothing in the Applicants’ case or documentation which persuaded me that PQX is currently vulnerable to exploitation or, for that matter to neglect or abuse in her home environment. The evidence from the Public Guardian’s visits to the home suggests that the contrary is the case. The Public Guardian’s reasons for decision in relation to the accommodation decision concluded that there was no evidence that PQX has been subject to neglect, abuse or exploitation and I cannot be reasonably satisfied that that position has changed since the decision was made on 20 November 2020.

The Public Guardian’s case on accommodation

94. The Public Guardian’s reasons for its accommodation decision set out, in some detail, how it reached its decision by reference to each of the relevant section 4 principles. They include reference to the importance of preserving PQX’s family relationships, cultural and linguistic environment and the need to protect her from neglect, abuse or exploitation. But in addition, substantial attention is given to other relevant principles, being PQX’s own views which reflects the principle in s4(d)), the need to preserve PQX’s freedom of decision and action which is the principle in section 4(b), the need to encourage PQX, as far as possible, to lead a normal life in the community, which is the principle in section 4(c) and, significantly, as the paramount consideration, the welfare and interests of PQX, being the principle in section 4(a).

95. The Public Guardian’s reasons reflect its exercise of a substantial analysis and a balancing of benefits and disadvantages of each of these principles. For example, in relation to PQX’s own views, the Public Guardian contended that the fact that PQX has been deemed to lack capacity in decision-making does not diminish her right to indicate a preference as to where she wishes to live. By way of contrast, the Applicants’ case as put by DYH was that that last-mentioned factor should be given minimal weight, simply because of PQX’s established decision-making incapacity. That is an incorrect approach to the application of the principle. The Public Guardian records that PQX has consistently maintained a strong view that she does not wish to live anywhere other than her home. The Psychiatrist’s report of her consultation with PQX in October 2020 confirms that.

96. The views of the disabled person are an essential component of any decision-making process of this sort and the need to take those views into consideration is not reduced where (as is commonly the case) the subject person has reduced decision-making ability.

97. The Public Guardian also cited some evidence of PQX seeking out and engaging in conversation with her neighbours and completing household tasks, as demonstrating the likelihood that her continued residence at her home would encourage her to live a normal life in the community.

98. Most significantly, the Public Guardian’s reasons indicate a substantial analysis of PQX’s welfare and interests, in response to the principle in section 4(a). As explained above, that constitutes the paramount consideration. The Public Guardian found that PQX’s daughter PYY and her son LYZ provide formal supports to her in the home, that she is the recipient of a Level 3 ACAT funding package and is able to and does access formal services, including assistance with home cleaning and support in accessing the community. It relied on the Psychiatrist’s report, which was to the effect that PQX’s current living arrangements are suitable and that there appeared to be no need to move her into higher-level care.

Conclusion as to the accommodation decision

99. The Public Guardian undertook the decision-making process in relation to the accommodation decision in accordance with the Section 4 principles. For the reasons which I have outlined above at [79] to [98]:

1. I could not be satisfied that the Applicants have thrown sufficient doubt on that decision to allow me to conclude that it was not the correct one;

2. the Public Guardian provided reasons for its decision which demonstrate that in reaching its decision it considered and observed correctly all relevant Guardianship Act principles; and

3. the decision was made in accordance with those principles. I was satisfied, as a paramount consideration, that the decision was the one which would best promote the welfare and interests of PQX.

100. There being nothing else to indicate error in the making of that decision, it must follow that the Public Guardian’s accommodation decision was the correct one.

101. I also considered whether that decision was the preferable one. Having taken into account all the established circumstances of the case, the factors which the Public Guardian took into account and the comparative strength of alternative solutions including particularly that proposed by the Applicants, I am satisfied that the Public Guardian’s decision as to PQX’s accommodation was indeed the preferable one.

102. It follows that the Public Guardian’s decision was the correct and preferable one and that the decision should be affirmed.

103. I ordered accordingly.

Consideration- the access decision

Consideration of the Applicants’ case on access

104. The Applicants’ case in relation to the Public Guardian’s access decision was less extensive than that made in relation to the accommodation decision. It was in my view subject to the same defect concerning incorrect application of the section 4 principles by the Applicants as I have described in relation to the accommodation decision above. My analysis of the Applicant’s case, following the order of contentions summarised at [65] above, is as follows.

(1) DYH’s lack of criminal record; no evidence of estrangement conflict or animosity

105. DYH’s lack of criminal record was not disputed.

106. However, there was clear evidence of some estrangement and possible animosity between PQX and DYH. I discuss some of the matters below with sensitivity, because I appreciate that it must have been an unfortunate and emotionally-damaging train of circumstances which led to the current lack of direct contact and some apparent loss of affection by PQX for DYH as her daughter. The effect of that on DYH must be substantial.

107. There is evidence in the Public Guardian’s reports including its reasons for the access decision (page 3), which indicates that PQX has become upset and distressed about the prospect of seeing DYH.

108. Indeed, as indicated in that section the Public Guardian based its decision to attempt the stated trial “one off” access arrangement on the perceived opportunity for PQX to choose whether she would wish to have extended contact with DYH. To that extent, the estrangement between PQX and DYH is the trigger for the very access proposal which the Public Guardian has made.

109. I am satisfied that the evidence indicates a substantial (if unfortunate) degree of estrangement between those two parties.

(2) The proposed access arrangement is harmful and damaging to DYH’s well-being and an abuse of the human rights

110. I am not persuaded by anything which the Applicants have said or produced that there was some ulterior motive in the Public Guardian’s attempts to establish a trial access arrangement. I cannot see how that constitutes in any way an abuse of the human rights of DYH or either of the other applicants. Even if there is an arguable case that that is so (and that is apparently the subject of separate proceedings instigated by DYH in the Federal Court), I cannot see how the Public Guardian’s attempt to establish appropriate access (with the decision under review as its first step) was in any way motivated by harm or damage to DYH or a denial of her human rights.

(3) The evidence produced by Mr Hosking of the Public Guardian “has no substance”

111. I take that assertion to be a global rejection of the Public Guardian’s reasons for making the access decision and Mr Hosking’s oral submissions, but the particulars provided by DYH in her written submissions on behalf of the Applicants do not justify such a conclusion and it is apparent that much if not most of the Public Guardian’s evidence is pertinent to the issues before me.

(4) The Public Guardian was biased in making its decision and was directed by PYY and LYZ

112. There is simply no persuasive evidence of any bias on the part of the Public Guardian in favour of any of the family members. A theme which runs through most of DYH’s submissions on a fair reading is that when a decision is made (by anyone) which is not in accordance with her wishes or contentions then, ipso facto that indicates bias on the part of the decision-maker.

113. I find that the Public Guardian was not biased in making either of the decisions under review and that the decisions were not as directed by PYY or LYZ.

(5) The Public Guardian’s reliance on the section 4 principles is not borne out by the facts.

114. I find’s assertion be completely unpersuasive for the following reasons.

115. In the Public Guardian’s reasons for decision there is substantial discussion of the relevance of the paramount principle (that is, that PQX’s welfare and interests should be the paramount consideration). Under that heading the Public Guardian confirmed that PQX has maintained a consistent view during the term of the current and previous guardianship orders, which is that she does not wish to have contact with DYH. As noted above, the Public Guardian’s reason for proposing a trial access arrangement in the presence of an independent third-party care provider was to provide PQX with the opportunity to choose whether she has contact with DYH. So, the Public Guardian clearly viewed the intended trial access as a possible foundation for more regular access between PQX and members of her family including DYH.

116. I am satisfied that in doing this the Public Guardian adhered to the s4(a) principle of ensuring that PQX’s welfare and interests are its paramount consideration.

117. The Public Guardian in its reasons for decision also discussed the relevance of the following s4 principles: freedom of decision and action, encouragement to live a normal life community, protection from neglect abuse and exploitation, self-reliance in personal domestic and financial affairs, family relationships and cultural and linguistic environments and, significantly the views of PQX herself.

118. In relation to the last of those principles the Public Guardian reported that PQX has consistently maintained a strong view that she does not wish to live anywhere other than her home and has become upset when the subject of access to others is discussed.

119. I accept that the trial access proposal was a genuine attempt by the Public Guardian to preserve the family relationships whilst taking PQX’s own views into account.

120. I find that the Public Guardian’s reliance on those factors was appropriate and, to answer the Applicants’ assertion, that it was “borne out by the facts”.

Did the Public Guardian’s access decision satisfy the Section 4 principles?

121. I am satisfied that the Public Guardian provided reasons for its access decision which demonstrate compliance with all relevant Guardianship Act principles and that the decision was made in accordance with those principles. I am satisfied, as a paramount consideration, that the access decision was the one which would best promote the welfare and interests of PQX.

Conclusion as to the access decision

122. It must follow that the Public Guardian’s decision as to access was the correct one.

123. I have also considered whether that decision was the preferable one. Having taken into account all the established circumstances of the case, the factors which the Public Guardian took into account and the comparative strength of alternative solutions including particularly that proposed by the Applicants I am satisfied that the Public Guardian’s decision as to PQX’s access was the preferable one.

124. It follows that the Public Guardian’s access decision was the correct and preferable one and that the decision should be affirmed.

125. I ordered accordingly.

Order

126. Matter No. 2020/00341901:

1. The decision by the Public Guardian is affirmed.

127. Matter No. 2021/00011720:

1. The decision by the Public Guardian is affirmed.

**********

APPENDIX -relevant statutory provisions

administrative decisions review act,1997 (NSW)

63 Determination of administrative review by Tribunal

1. In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

   (a)   any relevant factual material,

   (b)   any applicable written or unwritten law.

2. For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

3. In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

   (a)   to affirm the administratively reviewable decision, or

   (b)   to vary the administratively reviewable decision, or

   (c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

   (d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

65 Power to remit matters to administrator for further consideration

1. At any stage of proceedings to determine an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal may remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

2. …

CIVIL AND ADMINISTRATIVE TRIBUNAL ACT, No 2, 2013 (NSW)

36 Guiding principle to be applied to practice and procedure

1. The "guiding principle" for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

2. The Tribunal must seek to give effect to the guiding principle when it:

   (a)   exercises any power given to it by this Act or the procedural rules, or

   (b)   interprets any provision of this Act or the procedural rules.

3. Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal:

   (a)   a party to proceedings in the Tribunal,

   (b)   an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal.

(4) …

GUARDIANSHIP ACT 1987 (NSW)

4   General principles

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.

80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian

(1)   An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that:

(a)   is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and

(b)   is of a class of decision prescribed by the regulations for the purposes of this section.

1. An application under this section may be made by:

   (a)   the person to whom the decision relates, or

   (b)   the spouse of the person, or

   (c)   the person who has the care of the person to whom the decision relates, or

   (d)   any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.

GUARDIANSHIP REGULATION 2016 - REG 17

17 Administrative review by Tribunal of guardianship decisions of Public Guardian

For the purposes of section 80A (1) (b) of the Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed.

Powers of Attorney Act 2003 (NSW)

36 Interested persons may apply for review

1. Tribunal may review making or operation and effect of power

A review tribunal may, on the application of an interested person, decide to review the making, revocation or the operation and effect of a reviewable power of attorney or not to carry out such a review.

1. As a consequence of reviewing the making, revocation or operation and effect of a reviewable power of attorney, a review tribunal may decide whether or not to make an order under this section.

2. …

(4) Orders relating to operation and effect of power    

A review tribunal may, if satisfied that it would be in the best interests of the principal to do so or that it would better reflect the wishes of the principal, make any one or more of the following orders relating to the operation and effect of a power of attorney:

(a)   an order varying a term of, or a power conferred by, the power of attorney,

(b)   an order removing a person from office as an attorney,

(c)   an order appointing a substitute attorney to replace an attorney who has been removed from office by a review tribunal or who otherwise vacates the office,

(d)   an order reinstating a power of attorney that has lapsed by reason of any vacancy in the office of an attorney and appointing a substitute attorney to replace the attorney who vacated office,

(e)   an order directing or requiring any one or more of the following:

(i)   that an attorney furnish accounts and other information to the tribunal or to a person nominated by the tribunal,

(ii)   that an attorney lodge with the tribunal a copy of all records and accounts kept by the attorney of dealings and transactions made by the attorney under the power,

(iii)   that those records and accounts be audited by an auditor appointed by the tribunal and that a copy of the report of the auditor be furnished to the tribunal,

(iv)   that the attorney submit a plan of financial management to the tribunal for approval,

(f)   an order revoking all or part of the power of attorney,

(g)   such other orders as the review tribunal thinks fit.

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: 24 May 2021