FX v NSW Trustee and Guardian (External)

[2011] NSWADTAP 31

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31

Hearing dates:

20 May 2011

Decision date:

30 June 2011

Jurisdiction:

Appeal Panel - External

Before:

Magistrate N Hennessy, Deputy President
Ms C Huntsman, Judicial Member
Ms A Wunsch, Non-Judicial Member

Decision:

1. The decision of the Guardianship Tribunal dated 19 January 2011 in relation to the third respondent (FW) is affirmed.

2. The application of the second respondent (XO) for costs is refused.

Catchwords:

APPEAL - procedural fairness - relevance of material - opportunity to be heard

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Aged Care Act 1997 (Cth)
Family Provision Act 1982
Guardianship Act 1987

Cases Cited:

GM v Guardianship Tribunal [2003] NSWADTAP 59
IF v IG & Ors [2004] NSWADTAP 3
K v K [2000] NSWSC 1052
KA v Public Guardian [2004] NSWADTAP 25
Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Re R [2000] NSWSC 886
Re Refugee Tribunal; ex parte Aala (2002) 204 CLR 82
S v S [2001] NSWSC 146

Category:

Principal judgment

Parties:

FX (Appellant)
NSW Trustee and Guardian (First Respondent)
XO (Second Respondent)
FW (Third Respondent)
Guardianship Tribunal (Decision maker)

Representation:

FX (Appellant - in person)
Byrnes & Cox (Second Respondent )
CBD Legal (Third Respondent)

File Number(s):

118002

Publication restriction:

s 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision

 Decision under appeal 

Citation:

C/22541

Date of Decision:

2011-01-19 00:00:00

Before:

Mr W Tearle
Dr C West
Dr C Quinn

File Number(s):

2011/394

reasons for decision

Introduction

1. APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), C HUNTSMAN (JUDICIAL MEMBER), A WUNSCH (NON-JUDICIAL MEMBER)): FX has appealed against a decision of the Guardianship Tribunal making a guardianship order in relation to his mother and appointing the Public Guardian as his mother's guardian. FX is entitled to appeal on a question of law but must obtain the Appeal Panel's permission before appealing on any other ground: Administrative Decisions Tribunal Act 1997 ( ADT Act ) s 118B(1).

Background

1. FW, who has dementia, had been living with her son for several years before she was admitted to an aged care facility for emergency respite care on 30 August 2010. The need for care came about because FX's mental illness led him to be admitted to hospital where he remained for approximately three weeks.

1. On 9 September 2010 FW's daughter, XO, applied for a guardian to be appointed for FW. It was FX's inability to look after his mother while he was in hospital and the fact that he was suffering from a mental illness which led XO to apply for a guardianship order. Less than a week later FW appointed her son as her enduring guardian.

1. On 15 October 2010 FX took his mother from the aged care facility where she was residing so that she could attend a doctor's appointment. He failed to return her that evening, as agreed, but brought her back the following day. He reported to the manager of the aged care facility that his mother's feet were swollen and that she needed medical attention. Because of the manager's concern that FX had removed his mother from the facility, the scheduled hearing before the Guardianship Tribunal was brought forward to 5 November 2010.

1. On that day, the Guardianship Tribunal adjourned the application for a guardianship order for 10 weeks. FX agreed that, in the meantime, he would not remove his mother from care without consulting the manager of the aged care facility. He maintains that he abided by that condition.

1. On 11 November 2010 FX went to the aged care facility at about 4 pm requesting that his mother be discharged so that she could see a doctor the following day. FX says that it was necessary to take his mother to a doctor because despite advising the aged care facility of his concerns about his mother's swollen feet, nothing had been done. The manager attempted to persuade FX that it was not in his mother's best interests for her to be discharged so suddenly. FX disagreed and removed his mother from the facility.

1. The following morning FX took his mother to the Local Court where his application for an apprehended violence order against his sister was to be heard. He also took his mother to a medical appointment that afternoon.

1. At a hearing on 16 November 2010 the Tribunal made a temporary guardianship order appointing the Public Guardian for a period of 30 days. In that decision, the Tribunal expressed the following view:

The Tribunal is concerned that the sudden removal of FW from the facility, being a place where there is evidence she was well settled and had made friends, followed by the attendance at a hearing involving a dispute between her two children, would have been stressful for FW and not in her best interests.

1. On 14 December 2010 the Guardianship Tribunal reviewed its temporary order and renewed it for a further six weeks. At the 19 January 2011 hearing, which is the subject of the current appeal, the Tribunal reviewed the December order and renewed it for 12 months appointing the Public Guardian as FW's guardian.

Grounds of appeal

1. FX's grounds of appeal, as they emerged during the course of the hearing, can be summarised as follows:

(1)   The Tribunal breached the rules of procedural fairness by:

(a)   failing to refer to a letter he wrote to the Tribunal dated 28 October 2010 which set out the history of his sister's conduct since 1999 and failing to give him an adequate opportunity to present that evidence;

(b)   failing to refer to a report from the Department of Health and Ageing about the two occasions on which he removed his mother from the aged care facility;

(c)   failing to give him an adequate opportunity to present a plan for the way in which his mother would continue to receive care.

(2)   The Tribunal breached its statutory duty by failing to have regard to the views of FW.

Breach of procedural fairness

October 2010 letter

Allegations

1. FX submitted that the Tribunal failed to refer to his letter dated 28 October 2010 in its reasons for decision. Furthermore, he said that he did not have an opportunity to talk about the content of that letter during the January hearing.

1. The letter makes several derogatory allegations about XO and her conduct in relation to FW. Those allegations relate, in part, to proceedings that XO commenced in the Supreme Court seeking provision from her father's estate under the Family Provision Act 1982 ( now repealed). In the letter, FX questions XO's integrity stating, in part, that:

Since Supreme Court [XO] has turned on a revenge path to destroy my mother and myself / see Parkes Shire Council Rate debt for some $8K as she took some 6 years to transfer the matrimonial home back to her mother / yes there is lots more to come as [FW's] legal costs and finalisation of Supreme Court Orders 2001 will be attended to by a Sydney lawyer who is at present conducting a full investigation / [FW]'s integrity is again under the microscope.

Findings

1. On the basis of the documents provided to the Appeal Panel by the Guardianship Tribunal, we are satisfied that the Tribunal received FX's 28 October letter. Mr Byrnes, the solicitor for XO, said he received a copy of the letter by e-mail from the Guardianship Tribunal on 2 November 2010. The letter is listed in the list of documents attached to the reasons for decision made on 5 November 2010. On that day the Tribunal adjourned the proceedings to a date to be fixed.

1. Without a transcript we only have the informal oral evidence from FX and Mr Byrnes, the solicitor representing XO, as to what happened at the Guardianship Tribunal. FX says he was not given an adequate opportunity to present oral evidence about his sister's lack of integrity as outlined in the letter. Mr Byrnes says that FX was given ample opportunity to present his case. Ms Kaiti, representing FW, submitted that without a transcript it was very difficult to determine whether there has been a breach of procedural fairness.

Reasoning

1. The Tribunal has a protective jurisdiction: GM v Guardianship Tribunal [2003] NSWADTAP 59 at [40]. It is the duty of everyone exercising functions under the Guardianship Act 1987 to observe the principle that "the welfare and interests" of the person who is the subject of the application should be given "paramount consideration": KA v Public Guardian [2004] NSWADTAP 25 at [13]. The Tribunal adopts an inquisitorial approach to its decision making, carrying out investigations, gathering evidence and questioning parties and witnesses. The High Court has consistently applied the common law rule that a party be given a reasonable opportunity to give evidence and make submissions to investigative tribunals. (See for example, Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57; Re Refugee Tribunal; ex parte Aala (2002) 204 CLR 82.)

1. The Tribunal as constituted for the January 2011 hearing had access to the 28 October letter even though that letter was not listed in its reasons for decision. We are not satisfied, on the basis of the oral evidence provided by FX, that he was not provided with a reasonable opportunity to present his evidence and make submissions to the Tribunal. The fact that this evidence about his sister's integrity is not referred to in the reasons for decision can be explained by the fact that those allegations were not relevant to any issue in the proceedings.

1. The allegations were not relevant to the first step in the process, that is, determining whether FW was a "person in need of a guardian": s 14(1), IF v IG & Ors [2004] NSWADTAP 3 (13 February 2004). There was no dispute in this case that FW was such a person. Nor were the allegations relevant to the second step in the process, that is, considering whether a guardianship order should be made: s 14(2). In exercising its discretion to make (or not make) a guardianship order, the Tribunal is obliged to take into account the matters listed in s 14(2) including preserving existing family relationships. As well as the matters listed in s 14(2), the Guardianship Tribunal is entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision. In order to take those matters into account it was not necessary for the Tribunal to come to a view about XO's integrity.

1. Finally, XO's integrity was not relevant to the third step (who to appoint as the guardian) because she was not putting herself forward as a suitable person to be her mother's guardian. Her application was that the Public Guardian should be appointed.

Conclusion

1. The Tribunal had access to a letter FX wrote to the Tribunal dated 28 October 2010 which questioned her integrity. We are not satisfied on the basis of the evidence that FX was not given a reasonable opportunity to present evidence about that matter to the Tribunal. There has been no breach of procedural fairness.

Report from Department of Health and Ageing

Background

1. FX said that during the hearing before the Guardianship Tribunal on 19 January 2011, he gave a copy of a report from the Department of Health and Ageing to the presiding member. That report was prepared in response to a complaint FX made to the Aged Care Complaints Investigation Scheme within the Department on 8 November 2010. FX said that the report was not in the list of documents attached to the decision nor was it referred to in the reasons for decision.

1. The report examined two issues. The first was whether the aged care facility had breached any of its responsibilities when it discouraged FX from removing his mother from the facility on 15 October and 11 November 2010. The second issue was whether the aged care facility failed to ensure that FW was reviewed by a medical practitioner within a reasonable period of time after FX expressed his concern about his mother's swollen feet.

1. In relation to the first issue the report found that the aged care facility had not breached any of its responsibilities and had acted responsibly in attempting to prevent FX from removing his mother from the aged care facility . As FX was his mother's legal guardian at the relevant times, the aged care facility could not prevent him from removing his mother.

1. In relation to the second issue, the Department found that the aged care facility had breached the Aged Care Act 1997 (Cth) by failing to ensure that FW was reviewed by a medical practitioner within a reasonable time of FX making such a request on 16 October 2010. FX maintains that the finding on that issue vindicates his decision to remove his mother from the facility on 11 November and take her to a doctor.

Findings

1. Although we have no transcript of the proceedings, we accept FX's evidence that he gave a copy of the report to the presiding member of the Tribunal at the January 2011 hearing.

Reasoning

1. The Guardianship Tribunal had access to the report even though it was not listed in the reasons for decision. Mr Byrnes says that FX was given ample opportunity to present his case and that the Tribunal was aware of FX's reliance on the report. In light of all the evidence, and in the absence of a transcript, we are not satisfied that the Tribunal failed to give FX a reasonable opportunity to present his evidence and make submissions about the issue of him removing his mother from the aged care facility.

1. We agree that it is noteworthy that the Tribunal did not refer to this evidence in its reasons for decision. While mentioning the evidence of Ms Perry, FW's guardian, that the majority of medical appointments could be arranged within the aged care facility, the Tribunal did not refer to the evidence in the Department's report. Rather than taking that evidence into account and making a finding of fact as to the appropriateness of FX's behaviour in removing his mother from the facility, the Tribunal based its decision on the existence of "ongoing conflict" between FX and XO. While that approach raises some questions about the adequacy of the Tribunal's reasons, FX did not appeal on that ground and we did not raise the issue during the hearing of the appeal.

Conclusion

1. We are not satisfied on the basis of the evidence that the Tribunal failed to give FX a reasonable opportunity to present evidence and make submissions about the removal of his mother from the facility. There has been no breach of procedural fairness.

Plan for FW's continued care

Background

1. FX brought a support person from the People with Disability (PWD) advocacy service to the Guardianship Tribunal hearing. He says that that person had a plan for the future care of FW. FX alleges that his support person was 'shut down' and the plan was not communicated to the Tribunal.

Findings

1. Without a transcript of the hearing or some corroborating evidence of FX's version of events, we are not satisfied that FX was denied a reasonable opportunity to present his evidence.

Conclusion

1. There is no breach of procedural fairness in relation to the non-communication of a plan.

Failing to take into account FW's views

Background

1. FX submitted that the Tribunal failed to take into account his mother's view that he should make decisions on her behalf.

Reasoning

1. In considering whether or not to make a guardianship order, the Tribunal is required to have regard to the views of the subject person: s 14(2)(a)(i). In its reasons for decision the Tribunal noted that at an earlier hearing on 14 December 2010, FW had informed the Tribunal that she would trust her son to make important decisions for her. That was the only evidence the Tribunal had of FW's views. Taking into account those views and other matters, the Tribunal decided that it would be in FW's best interests to appoint the Public Guardian as her guardian.

Conclusion

1. The Tribunal took into account FW's views. It is not an error of law to make a decision that is inconsistent with those views.

Appeal against the merits

1. FX applied for leave for the appeal to be extended to the merits of the Tribunal's decision on the same grounds as outlined above: ADT Act , s 118B(1)(b).

1. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. Those cases interpret s 67(1)(b) of the Guardianship Act which is the equivalent provision to s 118B(1)(b) of the ADT Act in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that "it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67", but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

"It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed."

1. FX plainly disagrees with the Guardianship Tribunal's decision to make a guardianship order and to appoint the Public Guardian. His disagreement does not justify extending the appeal to the merits of the Tribunal's decision. There is nothing on the face of any of the grounds of appeal which raises broad questions of administration or policy or the applicability of policy to individual cases. Nor has FX identified how the Guardianship Tribunal went about the fact finding process in an unorthodox manner or in a way which is likely to produce an unfair result.

Costs

1. XO applied for costs. While the Tribunal has power to award costs, the general rule is that each party pays his or her own costs: ADT Act , s 88. We are not satisfied that it is fair to award costs in this case.

Orders

1. The decision of the Guardianship Tribunal dated 19 January 2011 in relation to the third respondent (FW) is affirmed.

2. The application of the second respondent (XO) for costs is refused.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 30 June 2011