FBC v Public Guardian

[2022] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FBC v Public Guardian [2022] NSWCATAD 202

Hearing dates:

On the papers

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Gatland, Senior Member

Decision:

(1) The Tribunal dispenses with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2).

(2) The publication of the name of any of the Applicants, of the person subject to the decision under review or the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).

(3) The proceedings are dismissed.

Catchwords:

ADMINISTRATIVE LAW — Reviewability — whether review of decision otiose — dismissal of proceedings

Legislation Cited:

Civil and Administrative Act 2013 (NSW)

Guardianship Act 1987 (NSW)

Cases Cited:

Fox v Commissioner of Police NSW [2016] NSWCATAD 77

General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125

NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15

State Electricity Commissioner of Victoria v Rabel [1998] 1 VR 102

Texts Cited:

None cited

Category:

Principal judgment

Parties:

FBC (First Applicant)
FBD (Second Applicant)
Public Guardian (First Respondent)
FFA (Second Respondent)

Representation:

Solicitors:
FDZ (B Ramjan, Guardian ad Litem)
Applicants (Self-represented)
First Respondent (Employed Solicitor)
Second Respondent (Self-represented)

File Number(s):

2021/00201066

Publication restriction:

The publication of the name of any of the Applicants, the person subject to the decision under review and the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).

REASONS FOR DECISION

Background

1. These proceedings were commenced on 13 July 2021 by the Applicants, FBC and FBD, against the First Respondent, the Public Guardian. In about September 2021, one of FBC’s siblings, known as FFA, was joined as the Second Respondent.

2. The Applicants sought a review of a decision made by the Public Guardian concerning access and visiting arrangements for FDZ who is FBC’s mother and FBD’s mother-in-law.

3. The Public Guardian now applies for the proceedings to be dismissed on the basis that the decision which had been the subject of review is no longer operational. The question to be determined on the dismissal application is whether there is anything further for the Tribunal to review or determine.

4. The parties have been given the opportunity to make submissions as to whether the Tribunal should dispense with holding a hearing with respect to the First Respondent’s application for dismissal of the proceedings. The Tribunal is satisfied that the matter can be adequately determined in the absence of the parties and accordingly, the Tribunal has dispensed with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2). I note the Applicants, Ms Ramjan who was appointed Guardian ad Litem for FDZ and the First Respondent have all provided submissions which the Tribunal has taken into consideration in determining the application.

Facts

5. FDZ is the mother of ten children. From the material before the Tribunal, FDZ is clearly a member of a devoted family and a person who thrives on social interaction, particularly with her children with whom she is very close. This closeness is typified in Ms Ramjan’s response to the present application, where she states:

[FDZ] was very clear to me she loved all her children and no one child should be favoured over any other.

6. FDZ is also 96 years hold and, in addition to her advanced age, suffers from chronic medical conditions including heart failure which results in fluid build-up and dementia which is principally exhibited by short-term memory loss. The treatment of her heart condition requires that FDZ take medication at four-hourly intervals and be positioned carefully in an upright posture.

7. In August 2020, FDZ moved permanently to an aged care facility. Prior to this date, FDZ lived at home and with her primary carer, FFA.

8. FBC and FFA together with another of their siblings were appointed by FDZ as her enduring guardians. That appointment took effect in 2013.

9. In January 2017, the Public Guardian was appointed to make decisions on behalf of FDZ. The basis of that appointment was limited to questions of access, specifically the Public Guardian was appointed to determine “access: to others and the conditions of that access”.

10. From the material before the Tribunal it is apparent this appointment was required because of conflict between FDZ’s children concerning the level and frequency of access and how such access might be balanced with FDZ’s health needs.

11. On 19 March 2020, the appointment of the Public Guardian was reviewed and extended for three years. As with the original appointment, the extent of the Public Guardian’s appointment was limited decisions concerning “access: to others and the conditions of that access”.

12. From around the time of the Public Guardian’s second appointment, access and visitation to FDZ was severely limited because of visiting restrictions imposed due the COVID-19 pandemic at the aged care facility where she lives. This added a further level of frustration and complexity to FDZ’s access to visits and contact from her all of her children. It is clear from the submissions made by both the Public Guardian and Ms Ramjan, that it was principally these external restrictions which caused an increase in the level of family conflict leading to the access decisions which came before the Tribunal.

The Access Decisions

13. There were two access decisions before the Tribunal, the second decision superseding the first.

14. The first access decision was made when the Public Guardian consented to a schedule which had been devised after a family conference process. The first access decision was affirmed on internal review on 19 July 2021.

15. The schedule to which the Public Guardian consented in the first access decision was for a period between 31 May and 1 August 2021. The schedule covers nine weeks and records visitation times and days for nine of FDZ’s children together with one of those children being assigned phone call access throughout a week. The schedule makes no allowance for the personal commitments of the children and is not an attempt to compel visitation; it merely divides up the weeks to allow each sibling the opportunity to visit their mother without placing strain on her health.

16. The Public Guardian made a second access decision with respect to FDZ covering the period between 11 November and 12 December 2021 and contained a visiting and calls schedule in similar form to the first access decision. This second decision was remitted back to the Public Guardian and affirmed on internal review on 17 December 2021.

17. Thus, it is the second access decision which is the subject of the present proceedings.

Public Guardian’s Submissions

18. The central tenets of the Public Guardian’s dismissal application are as follows:

1. The effect of the second access decision passed more than four months prior to her application for dismissal,

2. The second access decision had ceased to have any effect and

3. To the extent any further decisions regarding access should be made, those further decisions are capable of being the subject of an internal review and then a fresh application to the Tribunal.

Response of the Guardian ad Litem

19. Ms Ramjan was appointed as FDZ’s Guardian ad litem on 8 December 2021.

20. In early February 2022, Ms Ramjan sent an email to the Applicants concerning nominated days for visits, telephone calls and skype meetings to which FBC indicated his agreement.

21. Arising from the family conference and the case management of the Tribunal, on 21 February 2022, the Public Guardian sent an email to the Applicants and the Second Respondent and Ms Ramjan in her capacity as Guardian ad litem. The email advised that the Public Guardian had received a new roster which she was considering consenting to and which was largely the same as that which had been discussed at the family conference. On the material before the Tribunal, including correspondence forwarded by FBC from Ms Ramjan, this was the agreed level of phone contact as at early February 2022.

22. Ms Ramjan’s response states that:

1. The schedule for phone and Skype calls is now superseded by the easing of restrictions at the aged care home where FDZ resides.

2. It is now possible and preferable to timetable face to face contact visits for the Applicants to see FDZ.

23. Ms Ramjan urges the Public Guardian to now draw a timetable allowing fair and equal access to all of FDZ’s children to FDZ taking into account her “fragile medical state and age” and notes further that FDZ’s time may be very limited given her worsening medical state. Ms Ramjan urges family members to try to visit FDZ frequently for short periods to meet her social and emotional needs while taking into account her health and cognitive state.

24. While Ms Ramjan’s response most properly addresses matters going to the substance of FDZ’s care and needs, they also reveal the decision the subject of FBC and FBD’s application which initiated these proceedings is no longer in operation for the Tribunal to review.

Applicants’ Submissions

25. The Applicants provided a bundle of submissions and supporting documentation. Unfortunately, the submissions do not directly address the question of whether there is a decision which is still operational to be reviewed by the Tribunal or what the Tribunal is left to determine in the proceedings.

26. In brief summary, the Applicants’ submissions are to the following effect:

1. FBC and FBD were involved in the decision to appoint the Public Guardian to make access decisions for FDZ on 19 March 2020;

2. FBC has been discriminated against by the Public Guardian, this is demonstrated by the Public Guardian recording that her access decision made in 26 May 2021 was not FBC’s preferred access arrangement.

3. The Public Guardian has not approved access orders for FDZ for December 2021 or any of January 2022 – May 2022.

4. The Public Guardian has discriminated against FDZ because they have considered a diagnosis of dementia to be a “one size fits all situation” and are guided by their personal views on the subject.

5. The action taken by Ms Ramjan was successful because Ms Ramjan listened to FDZ and took an interest in FDZ’s point of view.

6. There was a lack of fairness which FBC complained about in 2021 in respect of the phone calls and roster schedule for visits.

27. A recurring theme in the Applicants’ submissions is a complaint of unfair treatment by the Public Guardian in reaction to the Applicants’ efforts to ensure that FDZ has her social, cognitive and familial interaction needs met. There is no doubt the Applicants are dedicated in their care and concern for FDZ, however there is no evidence before the Tribunal which demonstrates they are the subject of unfair treatment.

28. The evidence before the Tribunal suggests that the Public Guardian is carrying out her role by making decisions which are, in her assessment, in the best interests of FDZ and consistent with the general principles set out in the Guardianship Act 1987 (NSW), s 4. Such decisions being made after consulting with FDZ’s doctors, the aged care provider and all of FDZ’s family.

29. Crucially, however, the Applicants are not presently fettered by any access restrictions – whether imposed by COVID-19 responses or by the Public Guardian.

Relevant Law

30. The Tribunal may dismiss proceedings at any stage where it considers the proceedings are, among other matters, misconceived or lacking in substance; Civil and Administrative TribunalAct, s 55(1)(b).

31. In Fox v Commissioner of Police, NSW [2016] NSWCATAD 77 at [26], the Tribunal, considering the meaning of the words of s 55(1)(b) observed that:

“…The term “misconceived” represents a claim that does not “disclose a cause of action”, while “lacking in substance” may be seen as referring to a claim where the defendant could obtain summary judgment: Alchin v Rail Corporation of New South Wales [2012] NSWADT 142. There is also an overlap between the concepts identified in s 55(1)(b). For example, a proceeding may be frivolous or misconceived because it is lacking in substance: Worldwide Enterprises Pty Ltd v Westpac Banking Corporation [2010] VCAT 1125, [39].”

32. In State Electricity Commissioner of Victoria v Rabel [1998] 1 VR 102 at [124], Ormiston J stated:

…”misconceived” referred to a misunderstanding of legal principle and “lacking in substance” as encompassing an untenable proposition of fact or law.

33. In the present case, the Public Guardian is seeking orders akin to a summary dismissal of the proceedings. The summary disposal of any application should be exercised sparingly and only where the proceedings cannot possibly succeed; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125.

34. One basis on which a matter may be amenable to summary disposal, including dismissal, is where the decision will have no consequence for the parties or could, at most be considered advisory. In NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15, where the Tribunal was asked to determine an appeal by the government agency despite the underlying request having been withdrawn, the Appeal Panel observed at [13]-[14];

13   … it would not be appropriate in the circumstances of this case to answer a question which is "merely moot, theoretical, abstract, hypothetical and advisory": Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it "would not deliver what would, in effect, be an advisory opinion on an issue which had become moot." The Court went on to say that, "Courts do not entertain appeals on questions which would ‘produce no foreseeable consequences for the parties’". These principles were recently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148.

14   In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had been resolved and no substantive issue remained to be determined. In this case, there is another reason for declining to exercise any discretion we may have to determine a moot appeal. In our view, there is a real question as to whether the Department’s appeal is against an "appealable decision". Section 113(1) of the ADT Act allows a party to appeal to the Appeal Panel against an appealable decision of the Tribunal.

Determination

35. The proceedings initiated by FBC and FBD were not misconceived or lacking in substance when first commenced in the Tribunal. There were matters which were required to be resolved and which were properly within the jurisdiction of the Tribunal to determine; Guardianship Act, s 80A.

36. Since their commencement these proceedings have been the subject of case management by the Tribunal. Over this time, decisions have been made, remitted, made again and carried out with the effect that there is now no decision which is currently being implemented and for which there is any utility in the Tribunal continuing to review.

37. The Applicants submit the Public Guardian is yet to make access decisions in relation to periods after December 2021. To the extent the Public Guardian has not or refuses to determine the conditions of access for FDZ in accordance with her appointment, such are matters are reviewable and, if the Applicants are dissatisfied, they are able to seek internal review and bring a fresh application to this Tribunal if they remain dissatisfied.

38. At present, there is no decision in operation for the Tribunal to review and the proceedings are otiose. If the Tribunal were to review a non-operative decision, the outcome of that review would have no effect. Not only would this be inappropriate, but it would also be a waste of the Tribunal’s resources and those of the parties and antithetical to the guiding principle set out in the Civil and Administrative Tribunal Act, s 36(1) which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Conclusion

39. For the foregoing reasons, the Tribunal dismisses the proceedings, noting that future decisions of the Public Guardian are amenable to internal and external review in the event the Applicants or anyone one else with appropriate standing is dissatisfied with those further decisions.

Orders

1. The Tribunal dispenses with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2).

2. The publication of the name of any of the Applicants, of the person subject to the decision under review or the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).

3. The proceedings are dismissed.

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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: 17 June 2022