EBQ

Case •

[2015] NSWCATGD 22

•

14 July 2015

No judgment structure available for this case.

NSW Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: EBQ [2015] NSWCATGD 22
Hearing dates:14 July 2015
Date of orders: 14 July 2015
Decision date: 14 July 2015
Jurisdiction:Guardianship Division
Before: B Shipp, Senior Member (Legal)
Decision:

Adjourned for two months

Catchwords: ADJOURNMENT – review of guardianship order – conflict between joint guardians – one guardian not able to participate in hearing – procedural fairness – delay not adverse to interests of person under guardianship
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Category:Principal judgment
Parties: Ms EBQ (the person under guardianship)
Mrs LDQ and Mrs HPE (the guardians of Ms EBQ)
Representation: Not applicable
File Number(s):31424
Publication restriction:Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

  1. The Tribunal adjourned the review of the guardianship order for Ms EBQ part-heard for a period of approximately two months.

Background

  1. Ms EBQ is a 57 year old woman with an intellectual disability who has lived since the age of nine at a public residential centre in Regional NSW. Both o her parents are deceased, and she has 4 siblings - Mrs LDQ, Mrs HPE, Mr TMQ and Mr TVR.

  2. In August 2005, the Tribunal made a financial management order appointing the Protective Commissioner (now the NSW Trustee and Guardian).

  3. In September 2013, Mrs LDQ applied to become the replacement financial manager, and also applied for a guardianship order. In January 2014, the Tribunal confirmed the appointment of the NSW Trustee and Guardian as Ms EBQ's financial manager. The Tribunal also appointed Mrs LDQ and Mrs HPE as their sister's joint guardians for a period of 12 months, to make decisions about her accommodation, health care, medical and dental treatment and services.

  4. In January 2015, the Tribunal reappointed Mrs LDQ and Mrs HPE as Ms EBQ's joint guardians for a period of six months with the same functions.

  5. The guardianship order is again due for review.

What did Tribunal have to decide?

  1. The questions which have to be decided by the Tribunal are:

  • Is Ms EBQ someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

  • Should the Tribunal make a further guardianship order and if so, what order should be made?

  • Who should be the guardian?

  • How long should the order last?

The hearing - Non-participation of Mrs LDQ - Decision to Adjourn

  1. At the end of these Reasons for Decision are lists of the parties to the review and witnesses who attended the hearing. [appendix removed for publication]

  2. Mrs HPE - one of the joint guardians - attended the hearing. Another sibling - Mr TVR - participated by phone, as did Ms SFZ, Nursing Unit Manager.

  3. The Tribunal was informed that the other guardian Mrs LDQ - would be participating by mobile phone. The Tribunal called Mrs LDQ at the time scheduled for the hearing, and left a message on her answering service. The Tribunal tried again on a few more occasions at the commencement of the hearing with the same result.

  4. The Tribunal proceeded with the hearing in the absence of Mrs LDQ, satisfied that she had been placed on notice of the hearing. Mr TVR confirmed that the number the Tribunal was calling was the correct number for Mrs LDQ.

  5. The hearing commenced at 9:30 am. At 10:08 am, Mrs LDQ called and spoke to the Tribunal's case officer indicating that she had received the Tribunal's message for the hearing today but "was not able to answer the phone." The message continued that Mrs LDQ was now available to answer the phone. She left the same mobile phone number.

  6. Having received this message, the Tribunal proceeded to call this number again, and was met again by the same answering service. The Tribunal was unable to make any further attempts to call Mrs LDQ as the time for the hearing had almost expired. The Tribunal member had to conduct a further hearing at 10:30 am.

  7. As Mrs LDQ is a party to these proceedings, the Tribunal had to consider whether it could properly proceed in the absence of her evidence. The Tribunal accepted that she had been properly served with the Notice of Hearing. In preparation for the hearing, she had spoken to the Tribunal's case officer on 22 June 2015. She had also prepared a Private Guardian's Statement to the Tribunal in May 2015. There had been no request from her for an adjournment of this review hearing.

  8. As the evidence evolved, it became clear that the other guardian Mrs HPE was requesting that Mrs LDQ be removed as the joint guardian, leaving her as the sole guardian, for the reasons indicated below. Her brother Mr TVR supported this request. Principles of procedural fairness would normally require that any party affected by a decision of the Tribunal would be given a proper opportunity to respond to the material and relevant evidence adverse to them. While Mrs HPE's views had been summarised in the case officer's report (and served on Mrs LDQ) the detailed reasons supporting her views were only given during the hearing. This means that Mrs LDQ had not had the opportunity to respond to this. Section 38(5) of Civil and Administrative Tribunal 2013 (NSW) (CAT) Act provides as follows:

38 (5) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and

(b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.

  1. The issue raised by Mrs HPE is one of the matters to be determined by the Tribunal. As the Tribunal found it likely that it would renew the guardianship order in one form or another, the question of who should be appointed is a live one.

  2. In making a decision about whether to adjourn the proceedings, the Tribunal also had to consider:

  1. its guiding principle set out in Section 36(1) of the CAT Act "to facilitate the just, quick and cheap resolution of the proceedings," and

  2. the principles set out in Section 4 of the Guardianship Act 1987 (NSW) (as brought into consideration by Section 36(5) of the CAT Act).

  1. Section 4 provides that the welfare and interests of the subject person is the paramount consideration, and the Tribunal had to determine whether Ms EBQ's interests would be adversely affected by the adjournment of the proceedings. Mrs HPE suggested that joint decision-making with her sister was becoming difficult due to Mrs LDQ choosing not to communicate with her, and changing her mind about matters concerning Ms EBQ to which she had previously agreed. While this was not advantageous to Ms EBQ, the Tribunal did not regard these matters as posing any serious threat to her wellbeing, if there was a relatively short adjournment. Nor did the Tribunal regard a short adjournment as seriously offending the guiding principle.

  2. For these reasons, the Tribunal decided to adjourn the review of the guardianship order to a date to be fixed by the Registrar in approximately two months.

  3. The Tribunal notes however that it is the responsibility of all parties and interested persons to make themselves available for the hearing. It is in the interest of parties (and in accordance with the Tribunal's guiding principle) to bring proceedings to a close promptly and without unnecessary delay, and notes that matters can proceed in the absence of parties if proper notice has been provided, and if it is in the interests of the subject person. Any person who wishes to be involved in the next hearing should be available at the commencement of the time set down for the hearing.

  4. What follows is a summary of the evidence given at the hearing.

Is Ms EBQ someone for whom the Tribunal could make a further order because she continues to have a disability which prevents her from being able to make important life decisions?

  1. The Tribunal has previously found that Ms EBQ's intellectual disability cause her to be at least partly unable to manage her person in the sense of making informed decisions about her significant lifestyle issues. The Tribunal received no further evidence on this issue, and relied on the previously considered evidence to find that Ms EBQ remains a person for whom a guardian can be appointed.

Should the Tribunal make a further guardianship order and what order should be made? Who should be guardian?

  1. The evidence provided at the hearing suggested that there is a continuing process towards the rehousing of residents currently at the public residential centre. Mrs HPE told the Tribunal she had attended a meeting with Mrs LDQ and staff of the public residential centre in which they had agreed for Ms EBQ to be relocated into a suitable house in Regional NSW. However Mrs LDQ refused to sign the relevant form until she had spoken to someone else, and there was a delay before she signed. According to Mrs HPE, there was no reason for Mrs LDQ not to sign on the day, and they would have been further ahead with the planning if this had happened. Mrs HPE also notes that Mrs LDQ avoided her at the meeting, and did not attempt any joint decision-making.

  2. Ms SFZ confirmed that both sisters were involved in this meeting. The current plan is for Ms EBQ to move into a purpose built home with four to five residents. The service -provider has not yet been determined. Mrs HPE suggested that there is more work to be done in relation to determining the exact location and the mix of residents. Ms SFZ confirmed that progress is likely to be slow. They have a large number of residents to re-house. Three houses are in the process of being built, and another seven more are to be built. ADHC will also build a transition unit to trial the proposed co-residents being together.

  3. Mrs HPE also spoke of an agreement in principle with her sister for the purchase of a transportable wheelchair for Ms EBQ. Mrs LDQ later changed her mind about this, and was unnecessarily offensive towards Mrs HPE unfairly suggesting that she could not manage the wheelchair.

  4. Mrs HPE also suggested that she and her sister have a basic disagreement about the extent to which Ms EBQ can communicate. Ms SFZ agreed with Mrs HPE that Ms EBQ can communicate well using facial expressions. Mrs HPE states that Mrs LDQ believes Ms EBQ cannot communicate at all and does not need to be consulted.

  5. Mrs HPE and Mr TVR suggested that the above issues indicate that Mrs LDQ has little understanding of Ms EBQ, and that Ms EBQ is not her priority. For this reason, they believe that Mrs LDQ should be removed as a guardian, leaving Mrs HPE as the sole guardian.

  6. Mr TVR noted that it is only Mrs HPE who communicates with him. He had advocated for the joint guardianship between his sisters but now realises that it is not operating in Ms EBQ's best interests. He supports the appointment of Mrs HPE who he describes as having looked after Ms EBQ since she was 17. He states that Mrs HPE has always been there for Ms EBQ, and has been the main person in the family who has taken care of her. He is sceptical about Mrs LDQ's motivation.

  7. Mrs HPE told the Tribunal it would be much simpler if she was the sole guardian. She has the time and resources to attend the public residential centre as required, and she will always keep her siblings informed.

  8. Ms SFZ told the Tribunal she supplies the same information to both sisters, but it would be easier for the facility to have just one guardian to work with.

Conclusion

  1. The Tribunal made no final findings about the need for a guardian or who should be appointed, and has adjourned to provide Mrs LDQ with a further opportunity to respond to the matters raised above.

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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

Decision last updated: 29 July 2015

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