FC v SC - [2022] NSWSC 1780

Supreme Court

New South Wales

Medium Neutral Citation: FC v SC [2022] NSWSC 1780
Hearing dates: 20, 21, 22, 23 & 24 June, and 7, 8, 13 & 14 July 2022
Date of orders: 15 December 2022
Decision date: 31 December 2022
Jurisdiction: Equity
Before: Slattery J
Decision:
Orders made pursuant to the NSW Trustee and Guardian Act 2009, s 41(1)(a) that the estate of the second defendant be subject to management under the Act. Other consequential orders made.

Catchwords:
MENTAL HEALTH - Protected Estates – the plaintiff applies for a declaration and orders under the New South Wales Trustee and Guardian Act 2009, s 41(1)(a) (“the TAG Act”) that the estate of his father, the first defendant, be subject to management orders under the TAG Act – the first defendant is taken out of the jurisdiction by his nephew, the second defendant – the first defendant now lives with the second defendant – the plaintiff applies for declarations that various powers of attorney and enduring guardian appointments executed by the father are void and of no effect – whether the first defendant is a person “incapable of managing his or her affairs” – whether the estate of the first defendant should be subject to management under TAG Act.

Legislation Cited:
Civil Procedure Act 2005, s 26
COVID-19 Legislation Amendment (Emergency Measures) Act 2020
Guardianship Act 1987 ss 4, 6H, 8, 15(3), 24
Jurisdiction of Courts (Cross Vesting Act) 1987 (NSW), s 9
Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld), s 4
NSW Trustee and Guardian Act 2009, ss 41(1A), 41(2)
Powers of Attorney Act 1998 (Qld), s 113
Powers of Attorney Act 2003, s 36

Cases Cited:
Aboody v Ryan [2012] NSWCA 395
Aboody v Ryan [2012] NSWSC 136
Application of SG [2011] NSWSC 372
CD v EF [2018] NSWSC 848
CJ v AKJ [2015] NSWSC 498
EB v Guardianship Tribunal [2011] NSWSC 767
IR v AR [2015] NSWSC 1187
PY v RJS [1982] 2 NSWLR 700
Re B (No. 1) [2011] NSWSC 1075
Szozda v Szozda [2010] NSWSC 804
W v G (2003) 59 NSWLR 220

Texts Cited:
Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince)
H. S. Theobald, The Law Relating to Lunacy (1924, Stevens & Sons Ltd)
Meagher Gummow and Lehane explain, W Gummow, M Leeming and P Turner, Meagher Gummow and Lehane’s Equity Doctrines and Remedies, 5th edition, LexisNexis , [15-105]

Category: Principal judgment
Parties: Plaintiff: FC
First Defendant: SC
Second Defendant: JC
Third Defendant: NSW Trustee and Guardian
Representation:
Counsel:
Plaintiff: Mr A. Crossland; Ms B. Flaherty
First Defendant: Mr A. Galapo
Solicitors:
Plaintiff: Jeffrey Barrett, Attwood Marshall Lawyers Pty Ltd
Second Defendant: in person
Third Defendant: Ms R. Stormont, NSW Trustee and Guardian

File Number(s): 2021/00074726
Publication restriction: No

Judgment

The plaintiff, FC is the son of the second defendant, JC. The first defendant, SC is the nephew of FC and a cousin of FC.
In these proceedings the plaintiff, FC, seeks a declaration and orders pursuant to the New South Wales Trustee and Guardian Act 2009, s 41(1)(a) (“the TAG Act”) that the estate of his father JC be subject to management under the TAG Act. JC resists those orders. An overview of the facts reveals the issues for decision.
Orders in this matter in Court’s protective jurisdiction were made on 15 December 2022. These reasons are now published in a form that keeps the identity of the parties and their families anonymous.

An Overview of Events

JC was born in Malta in September 1927 and at the time of the trial was aged 94. In 1941, when he was about 13, JC’s father was killed in a German bombing raid on Malta. After World War II JC migrated to Australia. He purchased land at Greystanes, a suburb of Sydney and built a house there. He married and had, the plaintiff, FC. An older brother, JN, had been born in Malta.
In 1997 JC returned to Malta for 10 years with his wife, JX. There he became more closely acquainted with his nephew, SC, the first defendant. JX died whilst they were living in Malta. JC returned to Australia in 2007.
In the 15 years since JC’s return from Malta JC became increasingly disaffected with his sons and showing greater closeness to his nephew SC. Events that occurred in the latter part of this period resulted in FC bringing these proceedings in the Equity Division, Protective List against SC, his father JC and the New South Wales Trustee and Guardian (“the TAG”) as the third defendant.
FC commenced these proceedings in April 2021 seeking the appointment of the TAG as receiver and manager of JC's estate on the grounds of JC's incapacity to manage his estate himself. JC’s estate was believed in April 2021 to have a market value of approximately $3.8 million. Lindsay J made orders appointing the TAG to manage JC’s estate after reviewing the medical evidence that FC advanced on an interim basis.
FC now seeks more complex final relief arising out of a series of transactions between 2017 and 2020, in which an enduring power of attorney and an appointment of enduring guardian that JC had made in favour of FC were revoked and replaced by instruments appointing SC as JC's attorney and enduring guardian. Some of the new instruments were executed in Queensland.
When JC returned from Malta in 2007, he was dissatisfied with the way his sons had taken care of his Greystanes home when he was away. He also became dissatisfied with the welcome he had received from his sons FC and JN. That led to JC initiating correspondence through his then solicitor Mr Paul Sant to FC and JN. Tension persisted between JC and FC after JN’s death in 2014.
SC and his family migrated to Australia in 2016 and settled in Cairns, Queensland.
In December 2017 JC executed an enduring power of attorney (“the 2017 EPOA”) and an enduring guardianship appointment ("the 2017 EGA”) appointing FC as his enduring attorney and as his enduring guardian. JC used the legal services of his long-standing solicitor, Mr Paul Sant to execute these documents.
In April 2020 JC suffered a fall and was admitted to Westmead Hospital. The circumstances of the fall were a controversial part of the contest between the parties and are discussed in more detail below. After JC’s hospital admission he underwent medical investigations to determine his capacity to care for himself at home, including a test of his cognitive capacity. JC was recommended for residential respite care. At the same time Mr Sant communicated to FC the existence of the 2017 EPOA and the 2017 EGA, which FC accepted.
In May 2020, JC was admitted to the Genesis Nursing Home (“Genesis”), not its real name, for respite care and to assess his long-term residential support requirements. But whilst JC was in Genesis, he communicated with SC. JC asked SC to take him out of Genesis. In June 2020 SC arrived in Sydney and visited JC. Shortly afterwards, SC engaged Mr Paul Falzon solicitor to assist JC leaving Genesis.
In July 2020 FC decided to place JC in Genesis permanently. FC and paid the accommodation bond of $370,000 for Genesis from JC's funds.
By July 2020, Mr Falzon was beginning to take action to represent JC's interests against FC. He placed a caveat over the Greystanes property in 2020, and in July 2020 he informed FC that he had instructions to revoke the 2017 EPOA and the 2017 EGA.
By August 2020 the contest had come to a head. On 3 August 2020 Mr Falzon executed what purported to be revocations of the 2017 EPOA and the 2017 EGA. But the August 2020 revocation documents were erroneously drafted such that JC purported to revoke the prior appointment of SC rather than FC as his enduring attorney and enduring guardian. In the Court’s view as will be explained the 3 August 2020 revocation documents were probably ineffective.
The same day JC left Genesis and took up accommodation at a motel with SC in Alexandria. Mr Falzon also wrote to Mr Sant informing him that JC had revoked the 2017 EPOA and the 2017 EGA and indicating JC's intention to leave Genesis but without telling FC either that JC had left Genesis or telling FC of JC’s whereabouts.
Two days later, unaware of his father’s whereabouts, on 5 August 2020 FC lodged applications in the New South Wales Civil and Administrative Tribunal ("NCAT").
On 6 August 2020, JC executed a new EPOA appointing SC as his enduring attorney and a new EGA appointing SC as his enduring guardian ("the August 2020 EPOA” and the “the August 2020 EGA"). The same day, JC executed a new will which had been prepared by Mr Falzon naming SC as his sole beneficiary.
On 8 August 2020, JC, SC, and SC’s son Sylvan flew to Brisbane and stayed in hotel quarantine for 14 days, as was then required for cross-border travel during the applicable pandemic travel restrictions.
On 9 October 2020 Mr Falzon wrote to FC advising him that JC had appointed SC as his attorney and enduring guardian and enclosed the executed documents. Two weeks later, on 21 October 2020 Mr Falzon asked Mr Sant to provide Mr Falzon with the Certificate of Title to the Greystanes properties and other financial documents. The August 2020 EPOA and the August 2020 EGA were executed in Queensland (check), although the August 2020 EPOA and EGA revocation documents were executed in New South Wales.
JC purchased a property in Cairns in December 2020, the sale of which settled in early 2021.
In March 2021 NCAT made an interim financial management order in respect of JC committing his estate to the management of the TAG. On 16 March 2021, during the NCAT final hearing FC requested the NCAT proceedings be transferred to the Supreme Court, which NCAT declined.
On 12 April 2021, FC commenced these proceedings and Lindsay J appointed the TAG as the receiver and manager of JC's estate. On 29 April 2021 the TAG lodged caveats over the land at the Greystanes which comprises two adjacent residential properties. Lindsay J’s orders required an authorised visitor to interview JC, a task undertaken by Ms Marie Heydon, who later gave evidence in the proceedings.
JC underwent a series of medical assessments and capacity assessments in July 2021. In these assessments he achieved better results than earlier assessments about the time he left Genesis.
FC seeks a range of relief. He seeks relief under the Powers of Attorney Act 2003 ("the POA Act") declaring that the August 2020 revocation instruments, and the August 2020 EPOA and August 2020 EGA are invalid by reason of JC lacking the capacity to make them. He also seeks declarations that JC is a person incapable of managing his affairs under the TAG Act, s 41(1)(a) and an order that JC's estate be subject to management of the TAG Act. He also seeks an order pursuant to TAG Act, s 41(2) appointing him or in the alternative the TAG, or a private manager. Ability One as manager of JC's estate.
These proceedings were conducted over the following days and part days, 20, 21, 22, 23 and 24 June and 7, 8, 13 and 14 July 2022. Mr Crossland, assisted by Ms B. Flaherty of counsel, instructed by Attwood Marshall Lawyers Pty Ltd, appeared for FC. Mr A. Galapo of counsel appeared for SC, on a direct access basis. Ms R. Stormont appeared for the TAG. JC, the second defendant, appeared for himself by AVL from Cairns. The AVL link to Cairns was of good quality and JC appeared clearly to the Court on screen and generally appeared to be alert and following the proceedings throughout, subject to needing some breaks.
The following is a narrative of the relevant history. This narrative represents the Court’s findings on the matters covered, except to the extent that the context indicates that only the parties’ allegations are being recorded in these reasons. For reasons of economy this narrative does not include reference to versions of the facts that have been rejected. There were many contests of fact in the proceedings that it is not necessary to decide to reach a result in these proceedings. But before the narrative commences the Court records some general observations about the credibility of some of the principal witnesses other than the expert medical witnesses, who were all credible and well-qualified. Comments about them are included where their evidence is assessed.

Credibility of Parties and Witnesses

Some witnesses gave evidence in the courtroom and others by AVL. The assessment of their reliability and credibility is closely interwoven with the Court’s assessment of JC’s evidence and the extent to which he had developed distorted and paranoid ideas about some family members. This paranoid ideation was not obvious even to several of the doctors who examined JC but emerged through the whole of the evidence. The Court had the advantage of being able to compare JC’s statements with its own assessment of the events and people about which he was making statements.
AC. AC is FC’s wife. She displayed a good memory of events in which she was involved and was able to add detail when questioned about those events. She had an obvious concern and empathy for JC and had been bringing meals to him over many years. She was somewhat mystified by JC’s apparent lack of appreciation of the efforts that she and her husband, FC, had plainly devoted in caring for JC. The explanation appears to lie in ideas that JC had developed about FC.
AC had an accurate and precise memory of the statements JC had made about her and her husband. She recalls for example JC declaring on one occasion that he did not want the food which she had prepared for him. She recalls that JC said to her that the food she had prepared for him had been "poisoned". It was very clear that she had done everything she reasonably could to prepare tasty, nutritious, and healthy food for JC. The statements JC made about the food were hurtful to AC and in part for that reason she well-remembered them.
The statements are also wrong. AC’s evidence is wholly accepted. Her evidence, coming as it did, quite early in the case, contained early signs to the Court that JC had developed strongly paranoid ideation directed at family members and specifically FC and her. This theme recurred throughout the evidence of many reliable witnesses, from whose evidence the Court could ascertain the facts and assess that some of JC’s statements about family members were divorced from reality.
SC’s submissions sought to reduce the effect of this evidence by contending that JC had not said his food had been “poisoned” but that he said, “it’s poison”, being more of a comment about the quality of her food. But it was clear from the context of AC’s evidence her manner of giving it that JC was not talking about the food going off in the fridge but about the food being used to poison him. But findings of JC’s paranoid ideation were based on more than this.
FC. FC was a blunt but truthful witness. He tended to be combative with the cross examiner but not because he was embellishing his evidence. Rather, he could not understand some of the questions being put. FC had demonstrated antipathy to SC and was resentful that SC had taken his father, JC, away from him surreptitiously, driving them apart both physically and undermining the father-son bond. But despite that attitude, and whilst making allowance for it, the Court assessed FC as a reliable witness.
FC did not always reveal all he remembered about events in his first answer to questions. But when probed by counsel or occasionally when asked questions by the Court, he could give detailed answers showing a sound and genuine recollection of events, which clearly and satisfactorily explained what he had done and why. His true memory of events was often deeper than he first disclosed and more to his advantage than he at first disclosed. He was not a witness who was intent upon arguing his case to its best advantage, but rather someone who was genuinely trying to help the Court with truthful answers.
FC's antipathy towards SC was well-controlled. He restrained himself in commenting about SC. He was remarkably restrained, when cross-examining counsel somewhat indirectly raised serious allegations of misconduct against him about leaving JC to die on 12 April 2020. The allegations were baseless.
These baseless allegations were the following: that FC had gone to JC's house on the afternoon of 11 April 2020 after finding out about JC’s fall, that FC had seen JC there distressed and needing to go to hospital, and that FC deliberately left JC without medical attention. These serious allegations are groundless speculation. The allegations are discussed further below and are firmly rejected. The allegations did nothing to diminish FC’s credibility or the Court’s assessment of his fitness as a potential enduring attorney or a potential enduring guardian for his father.
Mr Paul Sant. Mr Sant was a solicitor who acted for JC in the execution of the 2017 EPOA and the 2017 EGA and had been his solicitor for many years before that. Mr Sant had an excellent memory of the detail of his interactions with JC. This was partly because JC reminded Mr Sant of his own father. Mr Sant said that he thought when speaking to JC it was like talking to his own father. Mr Sant had an obvious empathy for JC and was concerned about all aspects of his welfare, beyond his legal engagements with him.
Mr Sant was able to add spontaneous detail to fill out his interactions with JC, with Mr Falzon (the solicitor who later took over JC’s affairs) and with FC. This showed him to have a well ordered and efficient memory. His account proved to be precise and reliable when compared with contemporaneous documents and the evidence of other reliable witnesses. Being shown documents and asked questions sometimes triggered more memories of his interactions with JC. But he was prepared to concede the limits of his memory.
Mr Sant's correspondence reflected the same personality that he presented to the Court. He was a highly experienced legal professional who was committed to his clients, expressed himself in considered language, understood the law well and had a detailed memory of his interactions with his clients and of his clients’ concerns.
Mr Sant made several judgments of considerable importance about JC's developing mental incapacity in 2019 based on several interactions with him in legal conferences that year. Mr Sant stands in a unique position in the proceedings. He has a professional background and dealt with JC and the family objectively. He had professional consultations with JC over many years. And in 2019 Mr Sant had several consultations with JC, both at JC’s home and in Mr Sant's office of half an hour to an hour in which he was able incidentally to assess JC's mental capacity.
Whilst Mr Sant did not undertake formal medical tests on JC, the Court assesses him to be a person of sound judgment whose evidence can be wholly relied upon in assessing JC’s mental capacity, when JC was trying to grapple with matters related to his property and affairs. Mr Sant presented a disturbing picture of JC having paranoid ideation and of other weaknesses in his thinking about his family and financial affairs. The Court accepts all of Mr Sant's evidence.
MC. MC is the grandson of JC. He is a civil engineer. He had a good relationship with JC until recent times. His professional background as a civil engineer, assisted him to give reliable and objective evidence about the deterioration in JC's condition over several years. He could identify with precision the features of JC’s deterioration and the evidence on which he based his opinion.
MC’s evidence was not tainted by bias or resentment towards SC. He was able spontaneously to add detail to all his descriptions of his dealings with JC. But he painted a disturbing picture of JC becoming increasingly angry over time with his family, to the point that he, MC, could no longer bring his own children, JC's grandchildren, to visit JC. In MC’s telling, JC's anger appeared very often to be directed towards people who JC described as "them". It was unclear to MC who “them” were. JC never clearly identified these people to MC. The Court accepts MC’s assessment that JC was suffering from paranoid ideation that dominated his conversations and interactions with other people.

MC's evidence is accepted. His evidence was given precisely and with the objective of fully informing the Court about the facts MC remembered. MC changed his evidence on one occasion in relation to when a visit took place to JC's Greystanes property. But the change was objectively backed up by GPS records in relation to the company fleet vehicle for the construction company for which he worked. His evidence about going to JC’s house on 14 March 2020 is accepted. As will be seen from the account below, the competing contention that he went there on 11 April 2020 to somehow assist his father, FC, to endanger JC’s life is wholly rejected and without substance. MC’s account of the days he did and did not visit JC is correct and can be accepted.
SC. The Court cannot rely upon SC. He selectively answered the questions he wanted to answer the way he wanted to answer them, rather than attending to the question asked of him. He was vague when he wanted to be vague to avoid confronting difficult questions and he disclaimed memory when it was inconvenient to give an account of what he remembered. He repeatedly argued with the cross examiner when there was no basis to do so. He gave bland overarching assurances of correct process being followed in many instances but when tested was not across the detail of what had happened. He tried to deflect probing questions by suggesting that his cross examiner ask somebody else the question.
Perhaps the most remarkable feature of SC’s evidence was his account of his decision-making to keep FC, Mr Sant and other members of JC’s family in the dark as to where he had taken and was keeping JC when he had left Genesis and before SC took JC by air to Queensland. SC had complete control of JC from the moment he left Genesis and was determined to take him out of the jurisdiction before anyone could stop him. He claims that he was simply carrying out JC’s wishes. At one level that was true. But to anyone of objective judgment “JC’s wishes” were a product of paranoid ideation. JC’s best interests were served by his most immediate family being involved in deciding where he lived.
But SC has taken good care of JC at SC’s home in Queensland. SC has set aside a part of his home for JC’s accommodation and use. The Court accepts JC’s evidence that this is satisfactory to him. Had it been otherwise the Court may have sought to intervene to vary JC’s current living arrangements.
But SC has shown no objective insight about JC’s broader welfare. Had he shown such insight he would have understood that before he took JC away from Sydney, FC or MC should at least have been contacted to be involved in any major decision that was being made about where JC was to live. Had he shown such insight he would have appreciated that deciding where JC was to live was an issue best informed by a range of views other than SC’s and JC’s alone. Had he shown such insight he would have been taking active steps to see how JC could be engaged with other members of his family in Sydney and specifically FC and MC.
JC. As earlier indicated JC gave evidence by AVL from SC’s home in Queensland. He expressed general contentment with his situation there. But when the subject of his treatment by FC came up he constantly repeated a refrain to the effect that he been abandoned in Genesis and that his son had ill-treated him in many ways. He expressed deep antipathy towards FC and members of FC’s family.
It is not difficult to understand why several doctors and Mr Falzon regarded JC as having capacity to manage his affairs. He expresses his desire for independence most forcefully. He is clearly of a resilient personality used to taking charge of his own affairs and wanting to make his own financial and life decisions for himself. He has fully been used to assessing risks and threats and deciding what was for his own financial and personal benefit throughout his life. But in recent years that independent outlook has become less capable, defensive and distorted in some respects when it comes to some other family members.
JC is a good listener who is quite alert for his age. He could in impressively process quite complex questions and give considered answers to them. During the Court’s interactions with him he appeared mostly to have satisfactory cognitive powers for someone of his age. Although he did tire and become confused and sleepy at times. The Court ensured that far as possible he was able to have rest periods. He gave evidence in a separate room free of the presence or apparent influence of other family members. So far as one can tell through AVL communications, JC appeared to be physically healthy.
Paul Falzon. Mr Falzon was the solicitor who executed and drafted the instrument that JC signed on 3 August 2020, revoking his prior power of attorney to FC. Mr Falzon continued to act for both JC and SC from August 2020. Mr Falzon's manner of giving evidence, made him a difficult witness to assess. He tended to jump around in his answers to questions, interrupting himself and then commenting upon either the question asked or on earlier parts of his answer. He tended to nit-pick with the questioner and to answer obliquely, not facing the direct question that was asked.
Although professionally qualified and clearly an honest witness, Mr Falzon instilled little confidence in the Court as being able to give a wholly dependable account of events in which he was involved. He often professed a lack of memory about events in relation to his retainer by JC and SC. Whatever he could remember did not always emerge quickly and responsively to questions. And he gave the impression that his evidence involved a strong element of reconstruction rather than direct memory.
Mr Falzon seemed ready to accept JC at face value, rather than to exercise professional judgment and probe the issue of his vulnerability to manipulation. There is little evidence of him having given clear and robust advice to JC that might conflict with the interests or wishes of SC. For example, Mr Falzon did not offer any significant challenge as to why JC was leaving MC and FC out of his 6 August 2020 will and giving the whole of his estate to SC and whether that might be as much the product of SC controlling JC or JC’s distorted thinking, as any other factor. He did not discover the structure of JC’s prior will. As a result of these considerations, Mr Falzon was a witness whose testimony the Court was sometimes cautious about accepting.
Mr Falzon had a somewhat simplistic attitude to his role. He simply took the view that if he, Mr Falzon, had been placed in a nursing home by his own child against his will, he would have treated the child in a similar way to the way JC had approached FC. He was not alive to the nuances in play in JC’s situation. He simply took the view that JC had a right to get away from his son and to cut him out of the will and he did not take upon himself the burden as JC’s legal advisor of seeking to put any other potential competing point of view to JC for his consideration. Mr Falzon could have played a significant role in keeping JC within the jurisdiction and having where he was to live decided by family consensus or alternatively independently arbitrated, rather than determined by SC’s fiat.
Mr Falzon did not suspect that JC was suffering from paranoid ideation. This was not necessarily Mr Falzon’s fault. Mr Falzon did not have the same advantages as Mr Sant of being able to compare JC’s behaviour over many years. He was questioned about this, and it was clear that the possibility of JC suffering paranoid ideation did not occur to him, and he never investigated it. Rather he took what JC said to him at face value, improbable though at times it must have sounded to a professional person such as him. Mr Falzon missed the true psychological dynamic here. Mr Falzon did not undertake any investigation of potential paranoid ideation in relation to either the enduring power of attorney that JC executed in on 6 August 2020 (“2020 EPOA”), or the enduring guardian appointment of the same date (“the 2020 EGA”).
Mr Falzon received instructions that neither Mr Sant nor FC were to be informed that the plan was for SC to take JC to Queensland. The Court is satisfied that Mr Falzon was aware of SC’s plan to take JC to Queensland secretly and was content to leave all other members of JC's family in the dark about the plan before it was executed.
Ms Marie Hayden. The orders made by Lindsay J on 12 April 2021 authorised Ms Hayden to prepare a report for the Court. She did so in the role of a visitor to provide expert evidence for the Court. The Court has found her evidence to be helpful. She undertook a lengthy in-person interview with JC. Her general observations and judgments about JC and his circumstances were insightful. All her evidence is accepted.
At one point it was suggested that she was biased because of a communication from her to the TAG in an email of 9 June 2021, shortly after her report was delivered. But she explained this communication well: she was not seeking to favour FC and that the observations in her email were merely to suggest lines of enquiry to the TAG for JC’s benefit. The Court is assured of her impartiality.
Mr Joshua Auld. Mr Auld was the solicitor who advised JC when he made his Queensland power of attorney and enduring guardian appointment on 5 January 2021, the January 2021 EPOA and January 2021 EGA. He gave clear direct and proficient evidence. He gave competent advice consistent with his advisory task. He had a good recollection of taking instructions from JC and had a fair opportunity to interact with him.
But there was a gap in Mr Auld’s assessment of his client’s capacity, which he did not pick up and which arose because of the nature of JC’s psychological makeup. Mr Auld heard that JC had “issues” with his son FC and that he distrusted FC. But he did not seek to explore that statement by JC, because he did not think it was relevant to the task before him. At one level that was correct. But this statement by JC masked JC’s underlying paranoid ideation which interferes with his capacity to make objective financial judgements in his own best interests and makes him vulnerable to suggestions that play upon that ideation.
These reasons now return to the narrative of findings.

JC, FC and SC in Malta and Australia

The Years up to 2020

JC had to assume family responsibilities at an early age in Malta. His family life was scarred by the ravages of World War II. When in his father was killed in 1941 as a young teenager JC had to give up school to help look after and provide for his younger siblings. After marrying JX in Malta, the couple migrated to Australia in 1950. They had their first child, JN, in Malta and had their second child FC in Australia. JC and JX both worked hard in Australia. He worked as a factory hand and blender in a flour mill. JX ran a chicken farm and market garden with the help of the two boys.
JC and JX were both entrepreneurial and hard-working and soon built up enough capital in their adopted country to acquire the Greystanes property. This property comprised two blocks of land on which separate dwellings were erected. JC lived in one and let out the other from time to time.
JN and FC grew up at the Greystanes property with their parents. JN and FC left home as young adults but maintained a good relationship with their parents.
Two of JC’s sisters also migrated from Malta to live in Sydney. One of them, KC, featured in some of the evidence. Neither of them gave evidence in the proceedings.
In 1997 JC and his wife decided to return to Malta. JC met SC, the son of JC’s brother there soon afterwards. JX was diagnosed with terminal cancer in Malta and died there in 2003, having been advised it was unwise to return by air to Australia because of her cancer diagnosis. After JX’s death, JC was not ready to come back to Australia and he remained living in Malta on his own.
JC spent much time with his brother’s family, who closely supported him after JX’s death. As a result, SC came to know his uncle JC well and they formed a good relationship in a family context. JC became the godfather to SC’s eldest son, Sylvan. At the time some of the evidence was filed for the NCAT hearing in late 2020 JC was still speaking to his brother, SC’s father, by telephone in Malta on a regular basis.
SC and his family decided to migrate to Australia in 2016. They settled in Queensland, purchasing a home in a suburb of Cairns. After arriving in Australia, SC reconnected with JC and maintain regular phone contact with him, with the pair speaking weekly. And SC would come to Sydney from time to time and visit JC and stay at his Greystanes property.

From JC’s 2007 Return to Australia until Early 2020

JC’s return to Australia in 2007 began a slow fracturing of his relationship with both his sons. The mechanism of this process are obscure but it became evident as soon as JC arrived back. He immediately expressed disappointment to FC and JN about how the Greystanes property had been cared for in his absence.
The JC had given no advance notice of his return. FC and JN were living their own lives. But despite this, rather than express elation at seeing his sons again, JC visited harsh criticism upon them about their care for the property. He was still agitated about this issue years later at the time of giving evidence.
It can be accepted that the Greystanes property was below JC’s expectations when he returned. But he had been away for 10 years, and he did not give advance warning of his return. Had he done so his sons would have had time to prepare it for presentation to him. There was a subsidiary contest about the state of the Greystanes property when JC returned in 2007 but it does not have to be fully resolved.
JC’s house was neglected while he was away. The photographic evidence shows this, with disorder inside and neglect outside. Several JC’s boats kept on the property outside were damaged. But most of the damage and disorder was curable by concerted tidying up and repair work. But JC took what greeted him as a personal insult by JX and FC. In repeated later correspondence and conversations with FC, MC and others, JC complained about the quality of his welcome when he returned to Australia – “I had a very poor welcome” and about the state of the Greystanes property – being “full of rubbish”, with glass broken in the windows and that he had to sleep in the cold every night and that no one did anything for him.
FC and JN could have done better to look after the Greystanes property. But on any balanced view these are matters that many parents might have overlooked in time. But JC responded by withdrawing contact from FC and MC, saying to MC in correspondence “this is why I haven’t come to all of your special [occasions]” on one occasion corresponded. But JC’s disappointed reaction to his sons disappointing care of the Greystanes property was curiously excessive and unreasonable given his own lack of forewarning of his return. His excessive response to this in 2007 was perhaps an early indicator of growing distortions in his thinking towards his sons.

JC Develops Paranoid Ideas

JC had developed and was regularly articulating elaborate paranoid ideas by 2019 – 2020. The credible evidence of this is overwhelming. SC strongly challenges this testimony but JC was expressing a worrying range of these ideas.
FC, MC, AC and Mr Sant give many examples of behaviour such as this on JC’s part. Their evidence of these matters is wholly accepted. What follows are many illustrations of JC’s expression of paranoid ideas from each of these witnesses. Only those examples have been selected in which JC is directly or indirectly expressing the idea that he is threatened and in which the Court accepts that JC’s statements are wrong, either because they are obviously fanciful or because the Court accepts other credible and compelling inconsistent evidence.
FC’s Evidence. JC’s behaviour became increasingly odd in the few years before 2020. The Court accepts FC’s evidence that his father would complain to him that “some people broke into my house and stole some papers and clothes”. But there was no evidence discernible by FC that a break-in had occurred or that the police needed to be called when JC said these things.
Since about 2019 FC noticed that JC was misplacing documents medications and clothes. JC would become angry and frustrated easily, sometimes for no reason and would turn on FC and accuse him of trying to take his house and his money. Such accusations were groundless: FC was a supportive son. He did not have designs on JC’s money or property.
After JN died in 2014, JC continued to express a belief that JN was still alive. He would sometimes say to FC after JN’s death things about JN such as, “JN is broke”. In response FC would have to calm him down and not confront him directly with the fact that JN was dead. But instead he would say to JC, “JN’s not broke dad”. Sometimes this would lead to JC having angry outbursts, saying to FC, “Go home. I do not want you to be here.”
By 2019 JC was falsely imagining that people were living in his house at the Greystanes property. He said to FC at one stage of FC’s grandson JS, “JS is living in my garage”, accusing FC and MC of bringing him there to live. But JS was at home and there was no one living in the garage at the Greystanes property.
AC’s Evidence. The Court accepts AC’s evidence that since 2017 she and FC would travel about every 2 to 3 weeks the 45-minute journey from their home in Castlereagh to the Greystanes property where FC would visit JC and mow the lawns. But JC was cautious about people helping tidy up inside the house because of the deep-seated fear of things going missing.
In 2019 JC’s distorted thinking became particularly acute. AC recalls JC talking that year about people going into his house and taking important papers, clothes, and medications when he was shopping. This was not possible because of the bolts on the doors and windows. Inquiries about what was missing and offers to help look for it were met with the puzzling and irrational response from JC blaming JC’s late son, “JN is still alive, and he is the one breaking in and taking things from my house”.
JC had a former tenant in one of the two Greystanes houses, Mr P, who did come by occasionally to visit JC at home. FC and MC and other members of the family were worried about his presence around JC. But Mr P was not the subject of express complaints from JC about people being in his house. Mr P’s actions do not account for the wide range of JC’s complaints about “them” being in his house.
Late in 2019 JC began to say the first time to AC, that “FC and JX are not my children, they were fathered by another man”. This JC never made such a statement about JX before 2019 and this appeared to be a confused account of the marriage of another relative. JC made disturbing statements echoing this shortly before he left Genesis.
AC had cooked Maltese food for JC since about 2015 which he enjoyed. But AC noticed the cooked food began to remain in the fridge as it never had before after she had brought it. JC had ever been concerned about it going off before 2019 but his idea that he was being poisoned began to develop about then and resulted in him leaving the food. She eventually stopped bringing it.
JC started to see his own grandsons as hostile. After MC had recently brought his brothers, all JCs grandsons, to visit the Greystanes property, JC became angry at FC about the visit and said to FC within AC’s hearing, “I do not want you to bring men into my house”. When according to AC, FC tried to explain that they were his grandsons, JC became insistent saying “No, you brought men into my house because you are trying to take my houses and my land from me.
JC spoke angrily about the death of his wife, JX, and through distorted thinking blamed his sons for her death. He said to AC on one occasion “FC and JX knew she was sick, and they said nothing to me. They let us go back to Malta and I had to look after her on my own. I was stuck over there”. There is no evidence that FC was aware that JX had cancer before she left for Malta in 1997 six years before she died.

MC’s Evidence. MC had the same kind of experiences with JC. On occasions JC called him by telephone complaining that somebody was in JC’s house. But when he and FC came around to JC’s house and investigated there was no one there. MC noticed several years ago that JC blamed “them” for broken appliances and replacing new items in the house with old and new food in his fridge with spoiled food.
MC was strategic in dealing with JC. He maintained a relationship with JC for longer than most other family members. This is partly because he intuitively observed that JC became particularly suspicious of people who visited his house and then went out of his sight, for example to go to the kitchen or bathroom. MC was careful never to do that and through this strategy he retained JC’s trust for much longer than others.
In a small selection of examples from 2019 MC also recalls JC: saying that FC was “not my son”, recounting that JC thought he had AIDS because people JC referred to as “them” had broken in and left a video telling him that he, JC, was infected with the AIDS virus, declaring in response to notice of a neighbour’s development application that “someone has taken my land and they are developing it”, and explaining that a streetlight that was regularly out of service was because a neighbour was “part of the mafia and arranged for the light to be disconnected so I had to turn on my outdoor lights”. All these statements were fanciful and paranoid.
Mr Sant’s Evidence. Similar evidence comes from Mr Sant, who said that JC was telling him that people were “entering his house and taking stuff, that JC was wanting to pursue his accountant or the bank because they were taking his money. These things made Mr Sant concerned about JC’s welfare. Although Mr Sant had been JC’s solicitor for 10 years he had never heard of SC from JC until May 2020.

JC’s Fall and Admission to Hospital – 11/12 April 2020

JC had a fall at the Greystanes property on 11 – 12 April 2020. He was found by police on the floor of his home and was taken by ambulance to Westmead Hospital.
Members of JC’s family had tried to contact him about the time of the fall and were unable to do so. FC, MC, and SC all gave evidence of being unable to contact JC by telephone at this time. They made individual attempts to contact him, as did Mr P, JC’s former tenant in the Greystanes property. According to police records Mr P was the one who alerted the police at shortly before the time of 1753 on 11 April. It is reasonable to infer that JC had his fall a short time before Mr P’s alert. The police arrived at JC’s house at around 0730 on 12 April 2020 and found the front door of the Greystanes property unlocked and a box of groceries outside the door. They entered the house and found JC on the ground in the spare bedroom. JC was, conscious and “somewhat responsive” as the police described it but unable to get to his feet. Police called an ambulance which arrived shortly after and took him to Westmead Hospital where he was admitted at 0800 for assessment. The police attending to JC noted that he appeared uninjured. JC’s family reunited with him in hospital.
This apparently simple account of what happened to JC became complicated by an unusual contest. SC’s case propounded a theory based on slender circumstantial evidence that FC (and possibly MC) had become aware on the evening of 11 April of JC’s fall and had entered the Greystanes property, found JC there disabled by the fall and deliberately abandoned him without medical assistance to his fate.
The basis of SC’s case theory may be shortly stated. The police log of the incident indicates that Mr P, the informant to police, rang again at about 1841 to tell the police that he had attended at JC’s house and the lights were on inside. The log records Mr P informing the police, “all doors are locked”. A statement in evidence by local priest records that he received a call to visit JC on 11 April and that “he was in need of food”. The priest’s diary records that he drove to the Greystanes property between 1700 and 1730 with a box of food “and proceeded to knock at the door. No one answered”. He knocked again much louder and waited. His statement records, “[a]s no one answered the door, I left the box of food at the front door” he then rang back the person who had contacted him and attended to other pastoral and ceremonial duties, as it was Easter Saturday that day.
SC submits that the priest’s statement shows that JC’s front door was locked. It does not. The priest’s statement is equally consistent with his being tentative about going into house when the door was not answered. It does not record the door being locked. The only evidence that the door was locked was Mr P’s statement in the police log. Mr P was not called to give evidence to establish that the doors were locked.
SC’s case submits that this evidence indicates that someone accessed JC’s house despite the various locks on JC’s door and an alarmed security system, which MC had installed. SC submits that the only way that Mr P’s evidence of the door being locked can be reconciled with the police finding it unlocked the next morning is a visit from FC and MC, particularly as MC agreed that JC always locked up the house “like a drum”. SC says it was unlikely that Mr P unlocked the house or that a stranger broke in coincidentally that night. He says everything points to FC and MC being there.
But both FC and MC emphatically denied being there that night just before JC was admitted to Westmead Hospital. The Court accepts their denial. SC’s case challenged their denial by saying that FC admitted in evidence that he attended JC’s home with his son MC, and his youngest son that night to see how JC was.
But FC did not make such an admission. Under cross-examination FC explained he went to check on JC one night. Mr Galapo put to FC that the incident “could…have been April?” FC responded in the negative saying it was “probably near the end of March”, and ultimately, FC put it as “around March”. In the Court’s assessment FC was clearly referring to another incident not the one on 11 April. Indeed, MC, confirms that the time stamped GPS technology on his work truck shows that he went to JC’s place in March, and the same digital technology shows that he was not there in April.
Apart from the Court’s acceptance of FC and MC’s evidence, the digital record is decisive in showing that the occasion when FC, MC and another family member went to the property together was not 11 April 2020. SC submitted the digital record could have been fabricated or that a non-work vehicle could have been taken to JC’s place on 11 April. And MC’s evidence was criticised because he did not check the CCTV footage at JC’s house. But these contentions are speculative and unhelpful.
SC’s case then points to a Westmead Hospital record on 14 April which he submits shows that FC and MC admitted they were at the property on 11 April. But on a proper reading the Westmead Hospital record does not support SC’s case. In that record FC and MC are giving background information about the 11 April incident and at the same time referring to the March incident where they did attend the property. The reason the two were linked in FC’s thinking when he was giving an account to Westmead Hospital is that he suspected that the former tenant, Mr P might have been behind both incidents, as he had been pestering JC since about December 2019 and had triggered the security alarm at JC’s place on occasions. The writer of the Westmead Hospital record, taking the history from FC, is not at all clear about the March and April incidents being separate.
SC’s case denies making any “positive” allegations of misconduct against the plaintiff but says that his submissions are “merely exploring the evidence and pointing out the unexplained inconsistencies within the evidence” because of the paramount concern for JC’s interests in the exercise of the Court’s protective jurisdiction and to challenge FC’s and MC’s credibility. But the most likely explanation of what happened on the night of 11 April 2020 is simple: the police log probably erroneously records the communication made by Mr P, who was never called to state what he saw, and it is likely that despite commonly locking the house JC had left it unlocked at that time. The evidence which would support the view that FC and MC attended on 11 April and then abandoned their father is threadbare.
The Court questioned Mr Galapo’s instructions to raise this issue and to explain the evidentiary basis for such a serious contention about FC and MC. Mr Galapo confirmed that what was being put on the issue was on instructions from his client SC. For SC to propound this theory on such flimsy evidence, confirms what emerges from other evidence: SC is ready to see the worst of human nature in FC and MC.

In Westmead Hospital and Placing JC in Genesis – April to Early May 2020

Upon admission to Westmead Hospital, JC reported that the unwitnessed fall that he had suffered at the Greystanes property occurred while he was trying to get out of bed. He was diagnosed as having suffered a small left trochanter avulsion fracture, which was assessed as appropriate to managed without surgery. No other injuries appear to have been diagnosed from the fall.
A second unwitnessed fall is recorded after JC was admitted to Westmead Hospital. He was found by nursing staff, alert and responsive without obvious injury and with no permanent consequences for JC.
In the days following JC’s admission, Westmead Hospital staff administered a series of physical and cognitive tests to determine whether JC was fit to return home to his Greystanes property. These tests all supported the conclusion that JC could not look after his own needs at home on his own and ultimately led to the decision to place JC in Genesis, initially for respite care. As will be seen, the decision was based on sound medical and social work advice. It was not FC’s decision alone. To the extent FC was a decision-maker, far from the picture later presented by JC, FC was not motivated by any ill will towards his father but was taken with deep regret. Yet the decision was taken over JC’s opposition and in a background of rising Covid 19 cases in nursing homes throughout Australia.
JC undertook his first cognitive assessment on 14 April 2022, the Rowland Universal Dementia Assessment Scale (RUDAS) – a widely used scale for the measurement of cognitive capacity – and scored 17/30. On 22 April, Dr Thanegi May Linn, a Registrar at Westmead Hospital, wrote a “Capacity Assessment for Finance And Accommodation” in respect of JC for the geriatrician, Dr Peter Landau, stating:

“During this inpatient stay, [JC] was assessed by [a] medical team and other allied health professionals.
Reportedly, he has been paranoid about family taking property for some time and worsening cognition over the last year in particular, needing 24/7 care. His RUDAS (Cognitive screening) is 17/30 is 17/30 (visuospatial orientation 5/5, praxis 2/2, drawing 0/3, judgment 2/4, memory recall 0/8, language 8/8)
His cognitive impairment is impacting his safety awareness, information processing and problem-solving ability. We believe that JC does not have insight into his care needs 24/7 and does not have decision-making capacity regarding finance and accommodation and hence, he will not be able to return home safely.”

This record of reports of paranoia from JC’s immediate family was made before this litigation started and rebuts any suggestion of recent invention of this condition on their part. Entries such as this which the Court accepts as an accurate account of what was said to Dr Linn significantly blunt SC’s attack on the credibility of FC, AC, and MC in their accounts of JC’s paranoia.
Ms Melina Di Bella, a social worker at Westmead Hospital, noted on 14 April that JC was not safe to be discharged on that date, suggesting that ‘services in situ’ or nursing home placement were both options being explored. Ms Di Bella stated:

“JC has a supportive brother-in-law [KC’s husband], son and grandson… JC is open to returning home with services in situ for domestic assistance and transport. Son appears to be agreeable to this however brother-in-law Angelo believes that JC is not managing well at home. Angelo believes that JC’s cognition has declined over the months [and] struggles to maintain/complete self-care tasks [and] domestic tasks around the home.”

Ms Di Bella discussed in JC’s potential nursing home placement with JC and other family members. One factor in the decision about placing JC was that KC’s husband, JC’s brother-in-law, who would normally have been relied upon to assist JC with transport to medical appointments and grocery shopping was about to undergo surgery for his second hip operation. This greatly concerned FC as he was having great difficulty reconciling himself to the possibility of placing JC into an aged care facility. Ms Di Bella explained to me that she could organise at home services for JC but that there would be a long wait.
Ms Alicia Galea, a social worker at Westmead Hospital visited him on several occasions. In the summary of her assessment report on JC dated 28 April 2020, Ms Galea wrote:

“JC presents with global cognitive impairment and reduced functional mobility. The [multidisciplinary team] recommend 24/7 support, which family are unable to provide. JC wishes to return home, however as per Geriatrician assessment, he does not have insight into his care and needs, nor decision-making capacity re: finances and accommodation.”

On 29 April, Ms Alison Bradshaw, a social worker, and aged care assessment team (ACAT) Assessor and Delegate, compiled a ‘support plan’ which provided an assessment of JC’s suitability for different levels of aged care. Her assessment stated:

ASSESSMENT
Mobility: Previously independent with four wheeled walking frame however recurrent falls. Currently requires stand-by assistance, four wheeled walking frame & mobility belt. Also requires verbal prompts to use breaks & manoeuvre walker appropriately.
Transfers: Previously independent with bed mobility & bed, toilet & chair transfers. Currently requires stand-by assistance for same.
Personal Care: Previously independent however frequency unknown. Currently requires one person moderate assist with showering & dressing from seated position.
Toileting: Previously independent. Currently requires stand-by assistance.
Continence: Remains continent of bladder & bowel.
Eating: Previously independent. Currently requires set-up assistance with minced moist diabetic diet & thin fluids.
Instrumental Activities of Daily Living: JC reports he is able to complete the house work without assistance however his family report evidence of hoarding & squalor. Prior to his inpatient admission JC was driving & shopping for himself however his family also provided occasional assistance with transport to medical appointments & grocery shopping. At home JC relied on frozen meals & was taking his medication inconstantly. He is currently dependent on the hospital nursing staff for medication administration & continues to rely on his son for assistance with financial management.
JC scored 2/14 on the OARS & 12/20 on the Barthel which indicates a high amount of assistance is required with daily activities.
Cognition: JC scored 17/30 on the RUDAS administered by inpatient OT on 14/04/20. As per treating team, JC presents with a global cognitive impairment & would have difficulty with complex & novel tasks placing him at risk of misadventure if he were to return home alone. JC was also noted to have paranoid thoughts during his admission; believing people were breaking into his house & stealing food & medication. Family report cognitive changes over the past 6-12 months & low mood.
RECOMMENDATION:
MJC would benefit from approval for:
Residential Respite (High Level)
Permanent Care

By 29 April, hospital staff were strongly encouraging FC that JC would not be able to return home without care. SC’s case in the proceedings pushed the idea that that FC favoured putting JC into residential care even to the point that JC’s placement in Genesis was on FC’s insistence.
But this case is not made out. It is inconsistent with the contemporaneous documentary evidence and FC’s own testimony. Ms Galea, in her 28 April report pointed out that JC needed the same full-time care in the future that he was getting at the hospital. She discussed the major options of in-home care with family or family living with JC for full-time supervision and support, or a combination of government subsidised and private services involving placement in an assisted care facility. She noted:

FC and AC appear to be having great difficulty accepting that JC cannot return home to care for himself with support from services. FC said he purchased a shower chair and was going to put in a handheld shower hose. FC and AC expressed the desire to know they had did everything they can before placing him in [an aged care facility].
…
FC was appointed JC’s EPOA/EG in 2017. FC and his wife AC appear to be having great difficulty accepting that JC cannot return home and request more time to process the information they have received.

Ms Galea also noted that FC and AC were saying that they “needed time to digest” making what was proving to be a difficult decision about these issues. Ms Galea completed another progress report on 22 April progress report, noted:

“FC and [AC] also became teary during our conversation, as they are still feeling challenged with the idea of JC going into an [Aged Care Facility] against his wishes.
FC became visually emotional and teary and voiced the difficulty in making this decision on behalf of JC, as he fears it will impact their relationship. Validation, re-assurance and emotional support was provided by [Social Worker].
FC expressed his wish for JC to return home, however acknowledged that he respects the [Multi-Disciplinary Team’s] assessments and recommendations and that he cannot overlook this.”

FC’s first wish for his father to return home is corroborated by another social worker Ms Bradshaw, who in her 29 April report stated:

As JC requires 24-hour supervision & assistance with most activities of daily living his treating team are recommending he be discharged into Permanent Care. JC does not agree with this recommendation & wishes to return home however he has been assessed by Geriatrician, Dr Peter Landau to lack the capacity to make decisions about his accommodation & services. JC's son, FC would ideally like his father to return home however understands the team's recommendation & is seeking access to Permanent Care on behalf of his father.

Lesley Toovey, a social worker at Westmead Hospital summarised the hospital record accurately in her report to NCAT of 26 August 2020 which stated:

It is also noted on the medical record on numerous occasions that FC was often in tears with coming to terms about the recommendation that his father move into residential care and that FC required significant support and counselling about this.

These hospital notes affirm FC’s evidence that he was insistent at listening to the social worker and medical advice and was most interested in ensuring that JC received care commensurate with his reported physical and cognitive limitations. But FC was running up against the problem that he and AC were a 45-minute drive away from Greystanes, they could not afford to fund full-time care and assisted homecare would take some time to put in place and Greystanes. Placing JC in an aged care facility, even just for respite in the short term, began to look like the only realistic option left available after exploring all the others. But JC remained resistant, unrealistically insisting that he could manage.
At one point the notes presciently record FC expressing his fears that his deciding to place JC in assisted care would impact on their relationship.

Late in April FC contacted JC’s then solicitor, Mr Paul Sant of Longton Legal. Mr Sant advised FC that JC had appointed FC as his enduring guardian and power of attorney in 2017, but that to release any documents FC was required to provide to Mr Sant a medical certificate attesting to JC’s lack of capacity. FC provided this, a report from Dr Linn, shortly after and met again with Mr Sant on 29 April, where the enduring power of attorney and enduring guardian appointments were signed as accepted by FC, and at which points FC’s appointments were activated.
By 30 April JC had been in Westmead Hospital for 17 days, and the ACAT had provided its support plan, recommending high level residential respite or permanent care. But FC was still grappling with the idea that JC may be placed in permanent care. On 30 April, Ms Galea’s progress report noted that ‘FC and AC Lisa became teary during our conversation, as they are still feeling challenged with the idea of JC going into an [aged care facility] against his wishes.” The report also noted that FC was “understanding of patient flow”, which infers that by this point, Westmead Hospital were making FC aware that it was time for JC to leave hospital and enter an alternative care arrangement, thus freeing up a bedspace within the hospital. FC still sought time to decide on JC’s care arrangements and asked that JC remain at Westmead Hospital until early May.
On 5 May, it appears that JC was beginning to become resigned to the fact that he would be transferred to an aged care facility. Ms Galea’s progress notes on the same day state:

“- JC still feels that he can return to his home without support. JC acknowledged that he knew he would be going into a facility after discussions with the medical team and understands this is the plan.
- SW explained that JC will have his own room and en suite. JC appeared happy with same.”

On 6 May, JC was admitted to the Genesis aged care facility. Another facility with stronger Maltese connections was examined but Genesis was available. FC says, and the Court accepts, that his decision to admit JC to Genesis was based on his belief that aside from JC’s family providing permanent care which was not available, this was his father’s only realistic option. The Court also accepts that at the time FC made this decision, he believed that JC’s stay could be temporary if his rehabilitation – especially the strengthening of his legs to increase his balance – was adhered to, allowing him to return home under a private care arrangement. That belief was contrary to the medical assessments which held out little prospect for any improvement in JC. But improvement was a son’s hope.

JC Reacts to His New Accommodation in Genesis – May June 2020

JC immediately detested his placement in Genesis. JC entered the residential aged care system just as the death rate from the Covid-19 pandemic in aged care institutions was becoming alarming. It is not surprising that JC became fearful and desperate about his situation. Almost immediately began blaming FC for his circumstances. JC wanted to get out of Genesis and he calculated that the decision-makers who had put him in Genesis were hardly likely to help get him out. So, he turned to SC to help.
SC says, and the Court accepts, that he and JC made contact in early May. JC begged SC to get him out of Genesis. SC had been alerted to JC’s plight by SC’s father in Malta. JC had apparently been able to contact him there and SC’s father contacted SC and asked him to investigate. When SC first telephoned JC in Genesis from Cairns, JC complained that FC had put him there “without even asking me” and that FC was ignoring him.. JC concluded “I don’t trust him”. SC promised to get JC out as soon as the NSW – Queensland borders opened.
When the NSW Queensland border temporarily reopened, SC came down to Sydney. He judged that JC had lost weight. The Court accepts SC’s version of JC explaining to him his desire to escape from Genesis:

“I do not know what to do. FC never told me that he was moving me here. Do not talk to FC. Do not trust him. He was the one who put me here. FC only visited me a couple of times to ask me some questions….[FC] said he would only return my house keys if I ever got out of Genesis. I just want to leave and live free. I am in prison here.”

The words SC says JC used, “do not talk to FC” were most likely to have been said. JC did want to keep his dealings with his nephew, SC, a secret from his son, FC. The origins of those instructions were complex. They were partly driven by JC’s overwhelming need to get out of Genesis to avoid Covid 19 and a fear that FC would try and prevent that outcome if he found out. But one source of the instructions for confidentiality was incorrect and based on JC’s own illusory ideas, typified by the statement “FC never told me that he was moving me here” which was incorrect at many levels. The hospital notes and FC’s testimony show that JC was told repeatedly that it was likely he would have to go a nursing home like Genesis once the other options were eliminated. One of the recurrent themes that JC conjured up in his evidence was that FC had tricked him into going into Genesis by not telling him in advance.
JC also put SC onto an experienced source of appropriate advice. JC had previously been assisted with personal issues by Ms Kate Kennedy, a social worker with the Seniors Rights Service. SC rang Ms Kennedy who suggested that SC should go through NCAT and apply to revoke the 2017 EGA and 2017 EGOA, if FC wanted decision-making power to assess JC. She did not advise SC to act on his own initiative without going through NCAT.
When SC arrived in Sydney, he began to visit JC in Genesis on a regular basis. He was in Sydney to follow-up on his father’s request to see what was happening to JC. SC was closely attentive JC’s needs and welfare from that time. JC responded to him well. But SC had a limited view of JC’s welfare, which did not involve including JC’s children.
SC says and the Court accepts that JC became emotional, stating that he was a prisoner, that he couldn’t sleep, and felt that he was going to die soon, and that Genesis was the worst place to be during the pandemic. JC says in his own statements that when he was at Genesis he would cry at night, that he wanted his freedom, and that he was fearful of the Covid-19 pandemic.
SC says that JC told him to find a solicitor. The Court is not confident that JC had such agency in the matter. But in any event SC sought out a solicitor who could speak Maltese. Ultimately Around FC met Mr Paul Falzon of Falzon Legal in mid-to late June 2020.

Mr Paul Falzon is Engaged – mid-June 2020

Mr Falzon was retained on 23 June 2020 to assist JC to find a way to leave Genesis. The Court does not accept that JC was the prime driver in retaining Mr Falzon, but JC became the client. Due to Genesis’s Covid-19 protocols, Mr Falzon could only speak with JC through telephone or video calls, not in person. During these early discussions, Mr Falzon spoke with JC about his options to remove FC as JC’s enduring guardian and enduring power of attorney. The idea of having JC reassessed by a geriatrician to see if he had the capacity to revoke the 2017 EPOA and 2017 EGA emerged as a prime objective. But finding a geriatrician who could see JC during the pandemic was difficult. There was no discussion about going to NCAT. And the quiet search for geriatrician shows that SC and JC had something less open in mind.
The Court accepts Mr Falzon’s evidence that on 14 July 2020 he held a teleconference with JC in which JC said that he was worried that FC was now trying to sell his property. Mr Falzon responded by placing a caveat on the property claiming an estate or interest as registered proprietor, against any dealing inconsistent with that interest and against the item “details supporting the claim” the caveat records “apprehension of improper dealing by his son FC”.
This event is direct evidence of JC’s loss of confidence in FC as result of his being accommodated at Genesis. In context the event is also generally supportive of the wider inference of JC’s fixed paranoid idea that FC was likely to engage in “improper dealing” with the Greystanes property. The only evidence available to Mr Falzon that FC was intending to sell the Greystanes property was from JC. JC was attributing to FC the improper motive of selling the Greystanes property for FC’s benefit.
The same day SC and FC encountered one another at Genesis. FC expressed some hostility towards what he saw as SC’s interference in his relationship with his father. SC kept asserting his authority my saying “I am obeying uncle’s orders and my father’s orders [from Malta]. Uncle is here against his will.”

Mr Sant and Mr Falzon Meet – 22 July 2020

JC informed Mr Falzon that Mr Paul Sant had been his solicitor in the past. Mr Sant and Mr Falzon had offices in the same building in Parramatta, and they met on 22 July 2020 at Mr Falzon’s office. The Court’s findings accept Mr Sant’s version of their conversation.
Mr Sant protested about the caveat allegedly lodged on behalf of JC and explained that he, Mr Sant enacted for JC for many years, and he was not able to make proper decisions for himself now. Mr Sant told Mr Falzon that JC had never mentioned SC to him. Mr Sant disputed that FC had made the decision to put JC in a nursing home, but he emphasised the decision was the determination of the social worker at Westmead Hospital. Finally, there was discussion about a possible roundtable conference to resolve things, then Mr Sant confirmed that FC had no current intention for FC to sell JC’s house, but if JC remained in Genesis and an accommodation bond was required, then selling the house may have to be considered.
Mr Sant volunteered to get a copy of Dr Linn’s report to Mr Falzon. Then the most controversial part of the conversation commenced. Mr Falzon said that Mr Sant then threatened Supreme Court proceedings if the caveat was not removed. Trailing his coat somewhat, Mr Falzon says that he said, “So FC wants to sell JC’s house within seven days?” Mr Falzon then claims that he suggested a roundtable conference to agree on a way forward to avoid costly litigation and that Mr Sant agreed that was a good idea and offer to get instructions and “I will get back to you”.
The Court does not accept Mr Falzon’s version of this part of the conversation, except the roundtable conference was discussed as a possible way forward. The Court does not accept that Mr Sant undertook the obligation to get back to Mr Falzon. His version make it looks like it was Mr Sant’s obligation to get back to Mr Falzon. That was not how matters were left.
But on both Mr Falzon’s and Mr Sant’s versions FC communicated his view that it was in JC’s best interests for JC to stay at Genesis; and Mr Falzon did not tell Mr Sant that there was any proposal in the offing to remove FC as JC’s attorney and enduring guardian.
Mr Falzon emailed Mr Sant the following day confirming his meeting with Mr Sant the previous day, confirming that “JC is keen to live outside a nursing home with as much independence as possible and hence our involvement through his nephew SC”. The email said nothing about Mr Falzon’s asserted conclusion that FC “wants to sell JC’s house within seven days”. It said nothing about Mr Sant’s alleged promise to obtain instructions from FC and “get back to you”. Nor did Mr Falzon ever follow up Mr Sant’s alleged promise to “get back to you” about a roundtable conference to avoid costly litigation before participating in the events of 6 August 2020 which enabled JC to leave the jurisdiction. SC had already formed plans to take JC out of the State without telling FC.
On 23 July 2020, on Mr Falzon’s instructions Falzon Legal begun the search for a geriatrician which led to Dr. Xinsheng Liu, a Geriatrician and Consultant Physician undertaking capacity assessment on JC on Friday, 31 July 2020 at Genesis. Dr Jim Huynh, JC’s GP, provided a referral to Dr Liu. The Court judges JC as incapable of making such a strategic planning decision on his own at that time. Those instructions to engage another geriatrician only made sense as creating the preconditions to pursue the option of revoking and remaking JC’s existing 2017 EGA and 2017 EPOA. That outcome was foreseeable by SC and Mr Falzon by no later than 23 July.

Mr Falzon Takes Advice and Engages Dr Liu – 23 to 31 July 2020

On 29 July Mr Falzon organised a conference with a specialist in Elder Law, Mr Rodney Lewis. Mr Falzon had an initial conversation with Mr Lewis and then sent Mr Lewis an email conveying some factual background and then continued as follows:

“We have tried to organise a meeting with FC the enduring guardian and power of attorney through his solicitor Paul Sant, of Longton Legal to discuss options for JC to live independently with some care.
We have told Paul Sant that our instructions are that JC has capacity to make his own decision as to where he lives and that he wishes to go to live in Cairns QLD.
We are now looking at putting an application to the Guardianship Division. We have an application to review the guardianship and need a new guardian and attorney.
We believe that one of the geriatricians we have contacted has made an assessment of JC's capacity. If that is the case, we believe that JC should be able to make his own assessment. However, if that is not the case, we will need your assistance and advice.

Mr Falzon’s email to Mr Lewis conveys several important implications. Mr Falzon was conscious that JC wanted to move with SC to Cairns. Through his consultations with Mr Lewis, Mr Falzon thought that he would be proceeding in the first instance by application to the Guardianship Division of NCAT to review the existing guardianship arrangement. Whether the geriatricians report showed JC had capacity would determine whether further assistance was needed from Mr Lewis.
Whatever Mr Lewis said to Mr Falzon about going to the Guardianship Division of NCAT, it reinforced what Ms Kennedy had said to SC in May: that SC should contact NCAT and apply to revoke the 2017 EGA and 2017 EGOA.
On 30 July Mr Sant wrote a lengthy letter back to Mr Falzon which raised concern that FC had removed JC’s documents from the Greystanes property. The letter concluded in a manner which emphasised Mr Sant’s 10-year relationship with JC, rankled at the allegations of impropriety against FC implicit in the caveat, demanded the caveat’s removal, and overall foreshadowed strong difference of view about the management of JC’s future welfare. The letter ended as follows:

JC's ongoing moderately severe dementia has been recently confirmed as well as his inability to live at home alone. We are instructed that SC and his son are engaged in conduct promoting and encouraging JC to believe that he can return home, that SC will look after him and that FC caused him to be admitted into a nursing home. This conduct is not in JC's best interest and the representations are false and baseless and leading to continued conflict between JC and those who are trying to settle him and assist him in accepting his circumstances.
We are instructed that FC is prepared to discuss JC's ongoing care with those who have a genuine interest in the well being of JC but such will only occur once the Caveat has been removed and the documents removed from Mr. Calleja's residence returned.
We await your response.

The reference to JC’s moderately severe dementia in this letter was to Dr Linn’s report of 22 April 2020. With Dr Linn’s report sent to Mr Falzon were notes of a report of Dr Lucy Luo who had seen JC at Genesis on 15 June. The report shows that Dr Linn’s review was not an isolated event explicable by his presence in Westmead Hospital in April. Dr Luo’s report is no better than notes, but its effect can readily be seen.

behavior problems? depression wanting to go home
-cognition
history of dementia
RUDAS in hospital 17/30
today 5/5 orientation, 0/8 recall, 8/8 language, 2/4 judgement
total score of 19/27(better than before)
-recurrent falls at home and also in hospital
nil falls in nursing home
social history
lived at home alone with no services, NOK step son (he has no children)
he has his own house
? application for financial management
-depression
not happy being here
denies depression, thought he is able to manage at home
Impression
dementia-moderately severe
recurrent falls
Suggest:
should stay in the nursing home unless family provide care to him.
(he said his brother's son may come from QLD to look after him)
discussion with his son
FC tried to explain to him about process of enduring POA and enduring Guardian
JC has no capacity to manage his finances at present and unable to live at home alone however if JC would like to change his enduring POA or enduring guardian guardianship application can be lodged.

Even in June, about six weeks before the exchange of correspondence between Mr Falzon and Mr Sant, JC’s RUDAS score had marginally improved but JC had disturbed thought patterns about FC: JC falsely denies he has a son. Mr Falzon sent a copy of Dr Linn’s report to Dr Liu before Dr Liu this went to see JC.
Mr Falzon arranged for Dr Liu to see JC on 31 July. Neither Mr Sant nor FC was informed of these arrangements. Dr Liu reported to Dr Huynh in the following terms:

In summary, JC has mild short-term memory loss due to early dementia only (RUDAS scores - 26/30). Based on the capacity assessment today, he still has good insight for making his own decisions for his lifestyle and changing his will or appointing his POA. Due to his advanced age, memory and mobility decline, if he wishes to live in the community, he will require community services (home care) or supervision from the family and some assistance for managing his financial affairs.

This assessed JC as having greater decision-making capacity than Dr Linn had assessed in April, although it was well aligned with Dr Linn’s report on JC’s need for support for day-to-day living. Mr Falzon was entitled to rely upon Dr Liu’s assessment of JC’s cognitive capacity.
During Dr Liu’s assessment of JC, Dr Liu says that JC clearly understood what Dr Liu was asking him and was “responding appropriately”. Dr Liu says that JC “clearly expressed his views on living with his nephew and financial matters”. This shows that JC had well-developed thoughts in his own mind about going to live with SC in Cairns even before he left Genesis.”

JC Leaves Genesis for a Hotel – Monday 3 August 2020

On Monday, 3 August 2020 Mr Falzon held an AVL conference with JC in Genesis about revoking the 2017 EPOA and 2017 EGA. Documents purporting to revoke FC’s appointments were executed on the same day when JC left Genesis.
The instrument purporting to revoke the 2017 EPOA was formally invalid because it only referred to revoking an EPOA instrument made in favour of SC, not one in favour of FC. No EPOA instrument in favour of SC existed at the time. And the instrument revoking the 2017 EGA appeared formally valid but was not effective until it was notified to FC. It was not notified to FC before JC left Genesis later that day. These documents are invalid for other reasons considered later in the legal analysis of these transactions.
Mr Falzon says that he said to JC, “[y]ou can now remove FC from your life”, to which he says JC replied, “I want you to get FC out of all my life”. Mr Falzon obtain instructions from JC for Mr Falzon to sign on his behalf, to which JC responded, “yes please do that so I can leave here and go with SC and SC’s son”.
The Court accepts that this conversation took place. It is some evidence of a request by JC to keep his departure from Genesis confidential from FC, but the words get FC “out of all my life” can perhaps bear that meaning.” Mr Falzon must also have appreciated from this conversation that SC and SC’s son were going to take JC out of Genesis immediately and soon to Cairns with them.

These judgments may at one level appear harsh to SC, who has generously provided for JC and continues to do so. But his generosity is hedged about with control of JC and JC’s submission. SC should be justly compensated for his generosity. Submissions should be made to the Court as to appropriate orders for this to be done. But SC’s reasonable expenses in accommodating and attending to all of JC’s needs should be compensated out of JC’s estate during his lifetime.

Validity of the 2021 EPOA

The 2021 EPOA was executed in Queensland and attracts an application Queensland Law, the POA act raising an initial question about the jurisdiction of this Court to grant relief.
The Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld), s 4 confers the jurisdiction of the Queensland Supreme Court on this Court in “state matters”, a state matter relevantly being one in which the Supreme Court of Queensland has jurisdiction other than by reason of the law of the Commonwealth or another state. The Jurisdiction of Courts (Cross Vesting Act) 1987 (NSW), s 9 provides that this Court “may” exercise that cross vested jurisdiction.
FC submits that the 2021 EPOA is invalid under the Powers of Attorney Act 1998 (Qld) (“POA Act (Qld)”), s 113. SC contests this conclusion. The Queensland Supreme Court exercises jurisdiction under the POA Act (Qld) other than by reason of a law of the Commonwealth or of another state. Such jurisdiction is a state matter within the Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld). This court may exercise that jurisdiction under the Jurisdiction of Courts (Cross Vesting Act) 1987 (NSW), s 9.
In its discretion this Court will exercise that jurisdiction for several reasons. JC has long lived in New South Wales and has only recently been taken to Queensland, displacing any possible inference of forum shopping. The NCAT proceedings, from which these proceedings developed, were commenced before JC was taken to Queensland. The 2021 EPOA is one of a series of similar transactions involving JC in New South Wales and Queensland within months of one another. Although JC’s living in Queensland interim orders presently exist placing his affairs under the management of the TAG in New South Wales. The jurisdiction to be exercised under the Queensland legislation is very similar to that being exercised under the New South Wales legislation.
The 2021 EPOA was executed about five months after the 2020 EPOA Revocation and the 2020 EPOA but the conclusion the Court draws in respect of it is the same as for these earlier instruments in relation to SC’s undue influence, indeed the inference of such influence is even stronger because of JC was well settled in SC’s household by that time and very conscious of the lived difference between that household and Genesis.
POA Act (Qld), s 113 is in almost identical terms to POA Act, s 36. It provides:

“113 Declaration about validity
(1)   The court may decide the validity of a power of attorney, enduring power of attorney or advance health directive.
(2)   The court may declare a document mentioned in subsection (1) invalid if the court is satisfied—
(a)   the principal did not have the capacity necessary to make it; or
(b)   it does not comply with the other requirements of this Act; or
(c)   it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence.
(3)   If the court declares the document invalid, the court may, at the same time, appoint 1 or more attorneys for the principal.”

FC submits that the 2021 EPOA is invalid as it was the product of “unconscionable conduct”, as defined at s 113(2)(c). FC’s submissions to the extent they speak of “unconscionable conduct” should, in accordance with the pleaded allegation in the Amended Statement of Claim, paragraph [31], should be taken to refer to undue influence which is the relevant term used in s 113(2)(c), and which in context is clearly indicated.
FC submissions point to JC’s special disadvantages, his old age and his high degree of reliance on SC for care and assistance; SC’s knowledge of the matter; that SC took no steps to inform Devenish Law that JC had executed the 2020 EPOA and 2020 EGA, or of the NCAT proceedings seeking to challenge those instruments, or the significant costs JC had already incurred defending the NCAT proceedings, or that JC’s capacity was soon to be assessed by a jointly appointed expert at NCAT’s direction. FC submits that all these omissions indicate that SC was calculated to maintain control over JC.
FC also points out that the 2021 EPOA which JC contained clauses authorizing the appointed attorney to enter into transactions where the attorney’s interests in relation to the transactions could conflict with JC’s interests.
In reply, SC submits that all the evidence shows that everything he did in taking him out of Genesis and looking after him in Cairns has been in JC’s best interests and in accordance with JC’s express wishes. He says that JC’s execution of the 2021 EPOA did not involve a transaction or gift passing from JC to SC and while it is true that JC trusted SC, SC did not advise or encourage JC to execute the 2021 EPOA.
But this submission is not persuasive. The expression “induced by… undue influence” within POA Act (Qld), s 113(2)(c) should be construed, as Barrett J explained in Szozda as operating in the context of making a power of attorney. This may not directly involve a transaction passing property but nevertheless involves the conferring of power to engage in a wide range of transactions passing property of great financial consequence to the appointor and involves the need for insight into one’s estate and affairs close to that of making a will.
And the submission that SC did not advise or encourage JC to execute the 2021 EPOA somewhat misses the point of the nature of SC’s operative undue influence over JC in January 2021. It is difficult to know what passed between SC and JC on this subject as the Court does not accept SC’s account of his discussions with JC to explain how JC came to see Mr Auld the office of Devenish Lawyers on 7 January 2021. But the Court is confident that JC did not have the self-possession or personal resources to decide upon, advance and then execute a wish to make another EPOA in SC’s favour in addition to the 2020 EPOA. The idea of JC executing the 2021 EPOA must have come from SC. Even if he did not strongly push the idea with JC, in the Court’s view he made it known that is what he would like JC to do and the relationship of influence he had over JC then made it happen.
In reply, SC’s submission accepts that the 2021 EPOA authorized the appointed attorney to enter transactions that could conflict with JC’s interests. But SC says he was not aware of this provision in the 2021 EPOA. The Court accepts this evidence. SC did not seek to encompass specific terms in the 2021 EPOA, such as this clause and was not aware of this clause at the time. This does not add to the argument for setting aside the 2021 EPOA.
But one part of SC’s submission on this clause is not accepted. SC submitted that JC had knowledge of this clause., evidenced by JC’s answer in cross examination that he was aware SC could “get benefits or gifts from the power of attorney”. The Court is not convinced that JC really understood the question.
Finally, SC submits that JC received independent legal advice from a competent solicitor before executing the 2021 EPOA. SC submits that JC’s execution the 2021 EPOA was therefore not “induced by… undue influence” within the meaning of POA Act (Qld), s 113(2)(c).
But as before, accepting that Mr Auld was a thorough attorney, and he came across that way, there was a great deal of JC’s circumstances and the relationship between SC and JC of which he was not aware. He was not aware of the NCAT proceedings seeking to challenge the 2020 EPOA and 2020 EGA, including on grounds of SC’s undue influence or of the forthcoming assessment visit JC from a jointly appointed expert, Dr Russell. And he was not aware of JC’s fixed paranoid ideation about FC. Had he been aware of these matters he could have given far more robust independent advice focused upon the potential risks associated with a relationship of actual undue influence by SC over JC. He could have suggested delaying execution of the 2021 EPROA until Dr Russell’s report was available. It is not difficult to see that such advice could have produced quite a different outcome. As was the case with the 2020 EPOA, JC did not receive independent legal advice sufficient to displace the effect of JC’s influence.

Validity of the 2020 EGA Revocation and the 2020 EGA

FC submits that the 2020 EGA Revocation is invalid as it fails to comply with the relevant statutory scheme, defined in the Guardianship Act 1987 (‘Guardianship Act’). Guardianship Act s 6H provides:

6H Revocation of appointment by appointor
(1)   A person who has appointed an enduring guardian may, by instrument in writing, revoke the appointment.
(2)   An instrument does not operate to revoke the appointment of an enduring guardian unless—
(a)   at the time of executing the instrument, the appointor had the legal capacity to revoke the appointment, and
(b)   the instrument is in or to the effect of the form prescribed by the regulations, and
(c)   the instrument is signed—
(i)   by the appointor, or
(ii)   if the appointor instructs—by an eligible signer who signs for the appointor in the appointor’s presence, and
(c1)   the execution of the instrument is witnessed by an eligible witness, and
(c2)   the eligible witness certifies that the appointor executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument, and
(c3)   if the instrument is signed for the appointor by an eligible signer—the eligible witness certifies that the appointor, in the witness’s presence, instructed the signer to sign the instrument for the appointor, and
(d)   written notice of the revocation is given to the appointee.
(3)   Without limiting subsection (2) (c) (i), an instrument is signed by the appointor if the appointor affixes his or her mark to the instrument.
(4)   If an eligible signer signs an instrument on behalf of an appointor as provided by subsection (2) (c) (ii), the appointor is taken to have signed the instrument for the purposes of this Act (including subsection (2) (c2)).

Guardianship Act s 5 defines the following terms in the following way:

eligible signer, in relation to a notice or other instrument, means a person who—
(a)   is at least 18 years of age, and
(b)   is not a witness to the notice or other instrument, and
(c)    in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian.
eligible witness means a person who—
(a)   is any of the following—
(i)   an Australian legal practitioner,
(ii)   (Repealed)
(iii)   a registrar of the Local Court,
(iv)   a person (or a person belonging to a class of persons) prescribed by the regulations for the purposes of this subparagraph, and
(b)   in the case of an instrument appointing an enduring guardian or revoking an appointment—is not an appointee or substitute enduring guardian.

In the form of 2020 EGA Revocation, JC revokes the appointment of FC as his enduring guardian and says in accordance with the applicable regulation that he understands that the revocation will not be effective unless “the enduring guardian has been given written notice of the revocation”. It is signed on its face with the words “J C”, but this signature had been written remotely by Mr Falzon whilst he was in AVL communication with JC in Genesis. The form also states, “the appointer revoking the appointment voluntarily instructed Paul Gordon Falzon to sign the revocation on their behalf and that person executed the revocations in my presence, via telephone”, the italicised words being in Mr Falzon’s handwriting. The document is signed by Mr Falzon in his own name and dated 3 August 2020.
FC argues that Guardianship Act s 6H was not complied with in two respects. First, Mr Falzon signed on behalf of JC, but failed to specify on the form that he was signing on his behalf as an 'eligible signer'. Mr Falzon conceded that this was done in haste and was an error. Second, Mr Falzon said he was not in JC's physical presence when he signed the 2020 EGA but on a video call with JC, and a failure for the revocation document to be signed in JC's presence does not comply with Guardianship Act s 6H(2)(c)(ii). FC submits that for these reasons the EGA Revocation was not valid at law.
As to the second point, the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 which commenced on 25 March 2020, relevantly amended the Guardianship Act to permit execution of documents such as this remotely by video link. The point has no substance.
As to the first point, the executed document is not defective for want of compliance with s 6H(2)(c)(ii) as compliance with that provision can be achieved without necessarily declaring the witness to be in “eligible signer”. That can be inferred. But although it was not clearly argued by the parties, the 2020 EGA revocation appears not to comply with s 6H(2)(c2) as it does not certify that the appointor executed the instrument voluntarily in the presence of the witness and appeared to understand the effect of the instrument. The introductory words of s 6H(2) would appear to be intractable, “an instrument does not operate to revoke the appointment of an enduring guardian unless…”, and prevent the 2020 Revocation taking effect to revoke the 2017 EGA.
SC’s submissions appear to assume that even if the 2020 EGA revocation was ineffective to revoke the 2017 EGA that the execution of the 2020 EGA was itself effective to revoke the 2017 EGA. But this is debatable and was not fully explored in submissions. But the 2020 EGA was invalid for other reasons, the operative undue influence of SC.

Financial Capacity and Appointing a Financial Manager

The Court may appoint a financial manager to a person’s estate where it is satisfied that he or she is incapable of managing his or her own affairs: TAG Act s 41(1)(a). The classic statement of Powell J in PY v RJS [1982] 2 NSWLR 700 as to when a person is not incapable of managing his or her own affairs

“It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she appears incapable of dealing in a reasonably competent fashion with the ordinary routine affairs of man: and (b) that by reason of that lack of competence there is shown to be a real risk that either (i) he or she may be disadvantaged in the conduct of such affairs, or (ii) that such monies or property which he or she may possess may be dissipated or lost.”

This definition has been reaffirmed and commented upon on many occasions, many of which have been summarised as discussed by Lindsay J in CJ v AKJ [2015] NSWSC 498.
JC needs other people to communicate with professional advisers and to engage in any substantial financial transaction. He does not have agency to do these things himself. That lack of competence the need to use others has exposure to a real risk that he may be disadvantaged and that his property may be dissipated.
The Court has reached the view that JC is incapable of managing his affairs within TAG Act, s 41(1)(a). He needs a financial manager. Although he presents well on the surface in relation to his desire to manage his own financial affairs, he has major vulnerabilities which make him highly suggestible to the making of financial decisions that either are irrational or not for his benefit. And whatever his capacity to manage his financial affairs until about January 2021 the medical and psychologist evidence is a sound basis to infer that since then he either cycles through good and bad periods of capacity or his general insight into his financial affairs has slowly declined.
Apart from capacity issues, JC has major vulnerabilities due to his overall relationship with SC and his paranoid ideation about FC. JC would make any financial decision that would keep him with SC in Cairns. Any threat to his current stability would be a highly persuasive reason for him to make any financial decision. For example, he could be persuaded to lend money or buy properties, if he felt that would ensure his future security.
Another reason for making financial decisions for which he is highly suggestible is the thought that FC might receive some of his money or have the opportunity of obtaining some of his money. For example, he could be persuaded readily to sell the Greystanes properties to keep them away from FC.
But perhaps the greatest leverage that could be used against JC is the threat for him to go back into a nursing home. He would pay any money or buy any property or do anything to avoid that outcome, no matter how much he in fact needed that kind of support, if SC was no longer willing or able to provide it. This may explain why JC, despite living frugally and closely scrutinising expenses such as the costs of his care in Genesis, was rather nonchalant about the substantial legal costs he incurred during the NCAT proceedings and oblivious to the need to separate his legal liabilities to Mr Falzon from SC’s legal liabilities.
FC cannot be appointed JC’s financial manager. JC does not trust him. SC cannot be JC’s financial manager. SC’s controlling behaviour and relationship of undue influence over JC is a major source of JC’s vulnerability. SC’s past conduct in foreclosing JC’s options also make the Court during reluctant to entrust him with the responsible office of JC’s financial manager. The only acceptable solution is for the TAG to remain as financial manager as the default position in the short term.
But the Court was impressed by the evidence of Ability One to act in the role of financial manager supervised by the TAG, notwithstanding that JC was now living in Cairns. Ability One appear to be equipped to respond rapidly to an interstate appointment to give immediate close attention to JC’s financial needs.
Engaging the Queensland TAG is another option, but lines of communication to this Court’s supervision are likely to be more direct if Ability One is appointed. But before the appointment is made the parties may wish to have input into the terms of the appointment and should come prepared to put submissions to that effect on the next directions date.
The Court examine closely the possibility of making a partial management order in respect of JC’s estate. But no structure that would give JC personal financial autonomy without risk to his estate seems workable.

Review of the 2020 EGA and Appointing a Guardian for JC

FC’s submissions treat the review of the 2020 EGA on much the same grounds as the 2020 and 2021 EPOA, as challengeable upon the basis of SC’s undue influence over JC magnified by JC’s fixed paranoid ideas about FC.
For the same reasons given earlier in respect of the 2020 and 2021 EPOA, namely SC’s undue influence magnified by JC’s paranoid ideation about FC, the 2020 EGA should also be set aside to the extent it is otherwise valid. Mr Falzon had insufficient appreciation of the actual relationship of undue influence and of JC’s paranoid ideation about FC to give adequate advice when JC executed the 2020 EGA. But there is no direct equivalent in the Guardianship Act to POI Act s 36(2)(c), which authorises the Court to declare invalid a challenged instrument that is the product of “undue influence”.
But the Guardianship Act confers sufficient jurisdiction on this Court for the Court to make formal order setting aside the 2020 EGA, should it be so minded. Guardianship Act, 6L confers on the Court power to “review the appointment (or purported appointment) of an enduring guardian and may make such orders as it thinks appropriate in respect of the appointment”. That power is broad enough to declare the appointment invalid or to confirm it and to make orders that the guardianship tribunal would have made under Guardianship Act, Part 3. The Court will declare the 2020 EGA invalid but will not take that course until another person or body has been notified and is ready to take up the role of JC’s guardian so a fresh appointment can be made smoothly.

Who should be JC’s guardian? The parties advance competing submissions about what should occur in substitution for the 2020 EGA.
The applicable legal principles may be shortly stated. I have previously summarised them in CD v EF [2018] NSWSC 848 at [140] – [141]. The Court's inherent protective jurisdiction in relation to persons incapable of self-management has been well described in several recent authorities. The Court refers to Lindsay J's judgment in IR v AR [2015] NSWSC 1187 at [101]- [106]. The Court's inherent jurisdiction is derived from 19th century English law and practice upon its reception into this State through the Third Charter of Justice in 1823. The practice and procedure of the English Lord Chancellor at the time was that the Court could appoint a "committee of the person" to persons incapable of self-management. That office was then perceived to be the equivalent of what we would now describe as a tutor. The role was acquainted with that of "curator" under Roman law: Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince). The "committee of the person" was also the historical title of the office of the guardian appointed by the Lord Chancellor in the exercise of the Equity Court's inherent protective jurisdiction: H. S. Theobald, The Law Relating to Lunacy (1924, Stevens & Sons Ltd); and see the discussion of the office by Lindsay J in IR v AR [2015] NSWSC 1187 at [55]- [57].
The Court's inherent jurisdiction is referred to and confirmed under the Guardianship Act. Importantly, that Act does not limit the Court's inherent jurisdiction: Guardianship Act 1987, s 8. That jurisdiction is referred to in the Act as existing alongside the statutory powers of the Act, s 23: IR v AR [2015] NSWSC 1187 at [117]- [118].
Guardianship Act ,s 4 sets out the general principles which must be followed in the exercise of functions under the Act. Principal among these relevantly are the principal principles to give paramount consideration to the welfare and interests of JC, to promote his freedom of decision and action, to allow him to leave a normal life in the community as far as possible and to take into consideration his views.
Both the Guardianship Act and the policy of the general law is that, when considering an appointment of someone to act as committee of the person, the appointment of the Public Guardian is an appointment of last resort. This is firstly provided for in Guardianship Act 1987, s 15(3), as follows:

"A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person."

This aspect of the legislation reflects the policy at general law: "it has always been the policy to appoint a member of the family as committee or guardian of the person if that were possible" and "just because a decision is required about accommodation and there is some dispute about this does not mean that a close family member holding one view ought not be appointed": W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25]- [26]; see also Application of SG [2011] NSWSC 372 at [33]; EB v Guardianship Tribunal [2011] NSWSC 767 at [293]; and Re B (No. 1) [2011] NSWSC 1075.
SC strongly submits that JC’s best interests are served by appointing SC as JC’s guardian. FC submits that this will conform with the principles enshrined in Guardianship Act, s 4. In support of this submission SC cites CD v EF. But SC should not be appointed as JC’s guardian. The reasons for this can be seen by dealing with SC submissions on the issue.
SC says JC has been living happily with him for the past two years. SC has been assisting him, driving him to appointments, supervising his medications and taking on outings. SC’s son has been providing care including cooking of meals. JC has not had a fall since arriving in Cairns and his mental health has dramatically improved since she was in Genesis, moving from depression to an elevated well-being. Dr Russell, Ms Hayden and Ms Wilkinson have all assessed JC. And JC wishes to stay at his home in Cairns with SC assisting him.
SC says FC is not a suitable guardian and his offer to come live with JC in JC’s investment property in Cairns is “inauthentic and implausible”.
SC submits that the Public Guardian should not be appointed because JC does not wish for that to happen, it is not practical, and it may interfere with the excellent assistance that SC and his family are providing to JC.
The Court accepts that FC is not a suitable guardian for JC. The overwhelming evidence of JC’s fixed paranoid ideas about FC make him an unsuitable figure to interact with JC in an appropriate manner to give effect to his wishes and that is likely to promote his best interests. It would most probably be detrimental to JC’s mental health to appoint someone as JC’s guardian about whom JC held paranoid beliefs. The same applies to other family members other than SC, for example MC.
But a fundamental problem with appointing SC as JC’s guardian is that the Court does not trust that he will make any effort to keep open the possibility of a relationship between JC and SC would JC and with any other JC’s family members apart from SC and his immediate family. To commit JC to SCs guardianship is to commend him to a future of isolation without the possibility of contact from wider family, which will not promote JC’s welfare and interests. The possibility of contact with wider family is fundamental to JC’s best interests and well-being.
Another problem with appointing SC as JC’s guardian is that it is likely to increase the power of SC’s relationship of undue influence over JC, which will not be in JC’s best interests.
SC’s submission appears to equate him being appointed as JC’s guardian with JC continuing to be accommodated with SC. Unless SC wants to change his mind about JC’s accommodation, it is quite possible for JC to have a guardian other than SC appointed but JC could still be accommodated with SC in Cairns. Were the Public Guardian to be appointed as JC’s guardian the Court would expect that the Public Guardian would make its own assessment of JC’s accommodation needs and may well decide that staying with SC in Cairns is the best for him.
The Court is conscious that appointing the Public Guardian is an appointment of last resort. But both SC and FC are clearly unsuitable for appointment here is JC’s guardian. Unless a mutually agreed acceptable family member can be found in the meantime the Court will appoint the Public Guardian as there is no realistic alternative. But the Court will give the parties an opportunity to see if another family member can be found. For that reason, the Court will not make the appointment at this time but will do so at the next directions hearing unless another alternative is available.
The Court has not heard submissions in relation to costs and will do so at the next directions hearing.

Conclusions and orders

For these reasons the Court makes the following declarations, orders and directions:

Declare that pursuant to the Jurisdiction of Courts (Cross Vesting) Act 1987, s 9 and in exercise of the jurisdiction conferred on the Court by the Jurisdiction of Courts (Cross Vesting) Act 1987 (Qld), s 4(1) and (by its power thereby) under the Powers of Attorney Act 1998 (Qld), s 113 that the Enduring Power of Attorney (‘EPOA’) executed in Queensland by the second defendant on or about 7 January 2021, is invalid.

Declare pursuant to the Powers of Attorney Act 2003 (“the POA Act”), s 36(3) that the EPOA executed in New South Wales on or about 6 August 2020 by JC is invalid and of no legal effect.

Declare pursuant to the POA Act, s 36(3A) and under the general law that the document entitled 'Revocation of Enduring Power of Attorney' executed on or about 3 August 2020 by JC is invalid and of no legal effect.

Declare pursuant to the NSW Trustee and Guardian Act 2009 (“NSWTAG Act”), s 41(1)(a) that the second defendant is incapable of managing his affairs.

Order pursuant to the NSWTAG Act, s 41(1)(a) that the estate of the second defendant be subject to management under the NSWTAG Act.

Order pursuant to the NSWTAG Act, s 41(1)(b) that Ability One be appointed manager of the estate the second defendant subject to the orders and direction of NSWTAG.

Stay the operation of declarations (1), (2) and (3) and orders (4), (5) and (6) until 10 February 2023 at 4.00 pm to preserve the status quo in the short term best interests of the second defendant during the vacation period whilst the parties have an opportunity to prepare and advance submissions in relation to the transition of the management of the second defendant’s estate to Ability One and as to the terms of that management.

Direct the parties to file further submissions by 31 January 2023 and any submissions in reply by Monday 6 February 2023 addressing any consequential issues arising out of this decision.

List these proceedings for further argument at 9:30 AM on seven February 2023 or at such other time that is mutually convenient to the parties as is arranged with the chambers of Slattery J.

Liberty to apply.

**********

Decision last updated: 31 December 2022

Medium Neutral Citation:	FC v SC [2022] NSWSC 1780
Hearing dates:	20, 21, 22, 23 & 24 June, and 7, 8, 13 & 14 July 2022
Date of orders:	15 December 2022
Decision date:	31 December 2022
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Orders made pursuant to the NSW Trustee and Guardian Act 2009, s 41(1)(a) that the estate of the second defendant be subject to management under the Act. Other consequential orders made.
Catchwords:	MENTAL HEALTH - Protected Estates – the plaintiff applies for a declaration and orders under the New South Wales Trustee and Guardian Act 2009, s 41(1)(a) (“the TAG Act”) that the estate of his father, the first defendant, be subject to management orders under the TAG Act – the first defendant is taken out of the jurisdiction by his nephew, the second defendant – the first defendant now lives with the second defendant – the plaintiff applies for declarations that various powers of attorney and enduring guardian appointments executed by the father are void and of no effect – whether the first defendant is a person “incapable of managing his or her affairs” – whether the estate of the first defendant should be subject to management under TAG Act.
Legislation Cited:	Civil Procedure Act 2005, s 26 COVID-19 Legislation Amendment (Emergency Measures) Act 2020 Guardianship Act 1987 ss 4, 6H, 8, 15(3), 24 Jurisdiction of Courts (Cross Vesting Act) 1987 (NSW), s 9 Jurisdiction of Courts (Cross Vesting Act) 1987 (Qld), s 4 NSW Trustee and Guardian Act 2009, ss 41(1A), 41(2) Powers of Attorney Act 1998 (Qld), s 113 Powers of Attorney Act 2003, s 36
Cases Cited:	Aboody v Ryan [2012] NSWCA 395 Aboody v Ryan [2012] NSWSC 136 Application of SG [2011] NSWSC 372 CD v EF [2018] NSWSC 848 CJ v AKJ [2015] NSWSC 498 EB v Guardianship Tribunal [2011] NSWSC 767 IR v AR [2015] NSWSC 1187 PY v RJS [1982] 2 NSWLR 700 Re B (No. 1) [2011] NSWSC 1075 Szozda v Szozda [2010] NSWSC 804 W v G (2003) 59 NSWLR 220
Texts Cited:	Blackstone, Commentaries on the Laws of England (9th ed, 1783, Printed for Strahan, Cadell, & Prince) H. S. Theobald, The Law Relating to Lunacy (1924, Stevens & Sons Ltd) Meagher Gummow and Lehane explain, W Gummow, M Leeming and P Turner, Meagher Gummow and Lehane’s Equity Doctrines and Remedies, 5th edition, LexisNexis , [15-105]
Category:	Principal judgment
Parties:	Plaintiff: FC First Defendant: SC Second Defendant: JC Third Defendant: NSW Trustee and Guardian
Representation:	Counsel: Plaintiff: Mr A. Crossland; Ms B. Flaherty First Defendant: Mr A. Galapo Solicitors: Plaintiff: Jeffrey Barrett, Attwood Marshall Lawyers Pty Ltd Second Defendant: in person Third Defendant: Ms R. Stormont, NSW Trustee and Guardian
File Number(s):	2021/00074726
Publication restriction:	No