ECK v NSW Trustee and Guardian
[2020] NSWCATAD 143
•01 June 2020
Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: ECK v NSW Trustee and Guardian [2020] NSWCATAD 143 Hearing dates: 28 May 2020 Date of orders: 01 June 2020 Decision date: 01 June 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: (1) The disclosure of the names of the applicant, the applicant’s daughter (who is the subject of these proceedings) and the applicant’s daughter’s mother, is prohibited.
(2) The Tribunal determines to deal with the applicant’s application to the Tribunal, even though the applicant has not duly applied for an internal review to which the applicant was entitled.
(3) The respondent’s decision not to provide the applicant with the annual budgets for his daughter until he has paid his arrears of adult child maintenance is set aside.
(4) In substitution for that decision, the respondent is to provide to the applicant, within 28 days of the date of this decision, its annual budgets which were sent to the applicant’s daughter on 6 August 2015, 16 August 2016, 11 August 2017, 19 July 2018 and 27 November 2019.Catchwords: ADMINISTRATIVE LAW – Merits review – Decision of NSW Trustee not to provide its annual budgets to the father of an intellectually-disabled woman until he paid arrears of adult child maintenance – Whether decision was an administratively reviewable decision – Whether it was necessary to deal with the application in the absence of an internal review to protect the applicant’s interests – Whether respondent’s decision was the correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
NSW Trustee and Guardian Regulation 2017 (NSW)Cases Cited: DNP v NSW Trustee and Guardian [2018] NSWCATAD 212 Texts Cited: None cited Category: Principal judgment Parties: ECK (Applicant)
NSW Trustee and Guardian (Respondent)Representation: Solicitors:
Applicant (Self Represented)
NSW Trustee and Guardian Legal Branch (Respondent)
File Number(s): 2020/00041049 Publication restriction: The disclosure of the names of the applicant, the applicant’s daughter (who is the subject of these proceedings) and the applicant’s daughter’s mother, is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.
REASONS FOR DECISION
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The applicant is the father of an intellectually-disabled young woman (“the daughter”). The respondent, the NSW Trustee, is her financial manager.
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The applicant sought review of a decision of the NSW Trustee not to provide him with its annual budgets in respect of the daughter.
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For the reasons which follow, I have decided to set aside that decision and to make a decision in substitution, that the applicant be provided with those budgets.
Background
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In 2013, the daughter’s mother (“the mother”) applied to the Guardianship Tribunal for the appointment of a financial manager for the daughter. The applicant (to whom I will also refer as “the father”), was also a party to the application.
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The mother and father were at that time, and remain, separated. The daughter lives principally with the mother, but has, in the past, regularly visited the father.
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By 2014, this Tribunal had taken over the functions of the Guardianship Tribunal.
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On 6 June 2014, the Family Court ordered the father to pay to the mother $199 per week by way of adult child maintenance, under s 66G of the Family Law Act 1975 (Cth).
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On 2 September 2014, the Tribunal made a financial management order in respect of the estate of the daughter, committing management of her affairs to the NSW Trustee.
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On 15 October 2018, the Family Court varied its earlier order, such that the payment of maintenance was to be paid to the NSW Trustee.
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Between February and July 2019, there was some email correspondence between the father and the NSW Trustee. The father requested a meeting with the NSW Trustee about its budgets for the daughter. In reply, the NSW Trustee asked him to pay arrears of child support payments. The NSW Trustee indicated that it had “limited resources” for a meeting.
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On 25 August 2019, the father wrote to the NSW Trustee, requesting the NSW Trustee to prepare a financial plan for the daughter and to provide a copy of the financial plan to the mother and the father.
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On 2 December 2019, the father wrote to the Attorney General of NSW, requesting him to ask the Chief Executive Officer of the NSW Trustee to prepare a financial plan for the daughter, and to give the mother and the father a copy of it.
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On 10 January 2020, a Manager, Trustee Services for NSW Trustee and Guardian responded to the letter the father had written to the Attorney General. The letter informed the father that the daughter had been sent copies of her annual budgets (to her home address) since 2015, with the most recent budget being sent on 27 November 2019. It was noted in the letter that the Legal Branch of the NSW Trustee and Guardian had advised the father, by email on 30 July 2019, that once he had paid child support arrears, the office would be in a position to discuss a budget with him.
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On 7 February 2020, the applicant applied to the Tribunal for a review of the respondent’s “decision.” He did not identify, in terms, what that decision was. However, he annexed to the application form the letter of 10 January 2020, referred to above.
Non-publication order
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A person is prohibited, under s 65 of the NCAT Act, from publishing or broadcasting the name of any person involved in proceedings in the Guardianship Division of the Tribunal. The proceedings in the Guardianship Division of this Tribunal involving the daughter form the background to these proceedings. In addition, there is a public interest in maintaining the confidentiality of proceedings involving an intellectually-disabled woman. As the Tribunal has observed, it is desirable to maintain the privacy of people subject to financial management orders (DNP v NSW Trustee and Guardian [2018] NSWCATAD 212 at [6]).
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For these reasons, I am satisfied that it is desirable to make an order prohibiting the disclosure of the names of the applicant, his daughter who is the subject of these proceedings and his daughter’s mother, under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). Accordingly, I have made such an order.
Tribunal’s administrative review jurisdiction
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The NSW Trustee and Guardian manages the daughter’s estate under Division 1 of Part 4.5 of the NSW Trustee and Guardian Act 2009 (NSW).
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Section 62 of that Act provides:
62 Administrative review by NCAT of decisions by NSW Trustee under this Division
(1) An affected person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the NSW Trustee that—
(a) is made in connection with the exercise of the NSW Trustee’s functions under this Division, and
(b) is of a class of decision prescribed by the regulations for the purposes of this section.
(2) Each of the following is an affected person—
(a) a managed person in respect of whose estate the decision was made,
(b) the spouse of a managed person in respect of whose estate the decision was made,
(c) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.
(3) Subsection (1) does not apply if the decision of the NSW Trustee was made in accordance with a direction given by the Supreme Court to the NSW Trustee.
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Clause 45 of the NSW Trustee and Guardian Regulation 2017 (NSW) provides that all decisions made by NSW Trustee in connection with the exercise of NSW Trustee’s functions under Division 1 of Part 4.5 of the Act are prescribed for the purposes of section 62(1)(b) of the Act.
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Section 30 of the NCAT Act provides for the Tribunal’s administrative review jurisdiction. It relevantly provides:
30 Administrative review jurisdiction
(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Note. See section 9 of the Administrative Decisions Review Act 1997.
…
(3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Note. See section 7 of the Administrative Decisions Review Act 1997.
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Section 55(1) of the Administrative Decisions Review Act 1997 (NSW) provides that an application for an administrative review of an “administratively reviewable decision” may only be made by an interested person. An “administratively reviewable decision” is defined in s 7 of that Act as a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Is there an administratively reviewable decision?
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At the hearing, I asked the father to identify the “administratively reviewable decision” of which he sought review. He said that the decision he wanted reviewed was the NSW Trustee’s decision not to provide him with a copy of the annual budgets in respect of his daughter.
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Ms Sawtell, for the NSW Trustee, accepted that the decision not to provide the father with a copy of the annual budgets was a reviewable decision. She said, however, that the decision was properly characterised as a decision not to provide him with a copy of the annual budgets until he paid his child support arrears. She said that, after that, the NSW Trustee would be happy to discuss the budgets with him.
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I am satisfied that the decision not to provide the father with a copy of the annual budgets relating to his daughter is an administratively reviewable decision. It is a decision made in connection with the exercise of the NSW Trustee’s functions under Division 1 of Part 4.5 of the NSW Trustee and Guardian Act, within s 62(1)(a) of that Act. It is also “of a class of decision prescribed by the regulations” for the purposes of s 62 (NSW Trustee and Guardian Act, s 62(1)(b); NSW Trustee and Guardian Regulation, cl 45). It is therefore “a decision of an administrator over which the Tribunal has administrative review jurisdiction” within s 7 of the Administrative Decisions Review Act.
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I am also satisfied that the father is an “affected person” who is entitled to seek review, within s 62(1) of the NSW Trustee and Guardian Act. This is because he is a person whose interests are, in the Tribunal’s opinion, adversely affected by the decision (see s 62(2)(c)). The NSW Trustee did not contend otherwise.
Lack of internal review
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The father did not seek internal review of the NSW Trustee’s decision before making his application to the Tribunal. Generally, an application to the Tribunal for the review of an administratively reviewable decision may not be made unless the person has applied for an internal review of that decision (Administrative Decisions Review Act, s 55(3)). However, the Tribunal may deal with an application to the Tribunal where an internal review application has not been made if it is satisfied that “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” (Administrative Decisions Review Act, s 55(4)(b)).
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I am satisfied that the application to the Tribunal was made within a reasonable time following the making of the decision. The decision was communicated to the applicant by letter dated 10 January 2020. He applied to the Tribunal 28 days later, on 7 February 2020.
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The most significant question is whether it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests. The applicant said that he had been asking the NSW Trustee for the financial documents for some time now, and as a parent he needed to protect his daughter’s interests. He said that the NSW Trustee was not being accountable for the way in which it managed her money.
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Ms Sawtell, for the NSW Trustee, did not oppose the Tribunal dealing with the matter without the NSW Trustee having conducted an internal review.
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I am satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant’s interests. That is partly because it is in the applicant’s interests as the father of an intellectually disabled woman to have matter resolved expeditiously, especially having regard to the long history of correspondence between the parties in which this issue has been raised but not resolved. Secondly, he would now be out of time to make an internal review application, which might mean that he would lose his entitlement to have the decision reviewed at all. Thirdly, although the NSW Trustee accepts that it has made a reviewable decision, it did not inform him, in its letter of 10 January 2020, of his right to apply for an internal review of the decision.
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For these reasons, I have decided to deal with the applicant’s application, pursuant to s 55(4)(b) of the Administrative Decisions Review Act.
What is the correct and preferable decision?
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The Tribunal’s task, when reviewing an administratively reviewable decision, is to decide what the correct and preferable decision is having regard to the material then before it (Administrative Decisions Review Act, s 63(1)). It is often said that the Tribunal “stands in the shoes” of the administrator (here, the NSW Trustee).
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It is the duty of everyone exercising functions under Chapter 4 of the NSW Trustee and Guardian Act with respect to protected persons to observe certain principles (NSW Trustee and Guardian Act, s 39). These include that the welfare and interests of protected persons should be given paramount consideration (NSW Trustee and Guardian Act, s 39(a)).
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The NSW Trustee did not raise any objection to the provision to the father of the annual budgets concerning the daughter, other than that he had not paid adult child maintenance. It provided evidence, which I accept, that as at 10 January 2020, the father was $11,741 in arrears on those payments.
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The Tribunal does not condone the father’s apparent failure to comply with the Family Court’s orders. However, in the Tribunal’s view, the father’s non-compliance with the Family Court orders is a separate issue from that of whether he should be provided with a copy of the budgets prepared by the NSW Trustee in respect of his daughter. As Ms Sawtell said at the hearing, the NSW Trustee has other legal options available to it in respect of any alleged non-compliance with the Family Court’s orders.
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I consider that it is in the daughter’s interests for the NSW Trustee to be transparent in the way in which it deals with her money, at least to the extent of providing her parents with access to its budgets. According to the NSW Trustee’s letter of 10 January 2020, the annual budgets are sent to the daughter at her home address. This probably means, in practice, that her mother has access to them, as the daughter lives with her mother. In my view, it is also appropriate for her father to have access to them. This would mean that, if the NSW Trustee made a financial decision with which he disagreed, he may be able to seek administrative review of it. He may also be able to seek judicial review of such a decision. The outcome would be that financial decisions which are, or which are perceived to be, adverse to the daughter’s interests would be subject to scrutiny.
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Accordingly, I have decided that the correct and preferable decision is for the NSW Trustee to provide the applicant with the annual budgets it has prepared in respect of his daughter. I therefore set aside the NSW Trustee’s decision not to provide him with the annual budgets until he has paid the arrears of adult child maintenance. In substitution for that decision, I determine that the NSW Trustee is to provide all of its annual budgets, in respect of the applicant’s daughter, to the applicant (Administrative Decisions Review Act, s 63(3)(c)).
Orders
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The disclosure of the names of the applicant, the applicant’s daughter (who is the subject of these proceedings) and the applicant’s daughter’s mother, is prohibited.
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The Tribunal determines to deal with the applicant’s application to the Tribunal, even though the applicant has not duly applied for an internal review to which the applicant was entitled.
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The respondent’s decision not to provide the applicant with the annual budgets for his daughter until he has paid his arrears of adult child maintenance is set aside.
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In substitution for that decision, the respondent is to provide to the applicant, within 28 days of the date of this decision, its annual budgets which were sent to the applicant’s daughter on 6 August 2015, 16 August 2016, 11 August 2017, 19 July 2018 and 27 November 2019.
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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: 01 June 2020
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