FYB v Public Guardian

[2024] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	FYB v Public Guardian [2024] NSWCATAD 267
Hearing dates:	7, 14 February 2024
Date of orders:	05 September 2024
Decision date:	05 September 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Leal, Senior Member
Decision:	The decision of the Public Guardian on 21 July 2023, to refuse the applicant’s request to have his daughter stay overnight at his residence, is affirmed.
Catchwords:	GUARDIANSHIP - Review of decision as to accommodation – suitability of accommodation - welfare and interests of the person subject to guardianship – decision affirmed
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Administrative Decisions Review Act 1997
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	None cited
Category:	Principal judgment
Parties:	FYB (Applicant) Public Guardian (First Respondent) FZN (Second Respondent) GBB (Third Respondent)
Representation:	Applicant (Self-Represented) Crown Solicitor (First Respondent) Second Respondent (Self-Represented) Third Respondent (Self-Represented)
File Number(s):	2023/00251911
Publication restriction:	Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, a person must not, without the consent of the Tribunal, publish, or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1. The applicant is the father of a twenty-nine-year-old woman who has Rett Syndrome, a rare genetic condition with associated severe physical and intellectual disability. She also has epilepsy, is non-verbal, requires a feeding tube for nutrition and is legally blind. She requires twenty-four-hour supervision and has lived in supported living accommodation since September 2022. Following a guardianship order made in 2023, the Public Guardian has the authority to determine the daughter’s accommodation, which includes any overnight or holiday stays, while her mother, who is the second respondent in these proceedings, exercises functions in relation to access, health care, services and travel. The mother and father live separately and the father is seeking a review of the Public Guardian’s refusal to allow the daughter to stay overnight at his place. Her mother and her stepfather have been joined as parties to these proceedings and, together with the daughter’s care co-ordinator, support the Public Guardian’s decision. 

2. In conducting the review, it is my role to determine whether the Public Guardian’s decision to refuse the applicant’s request that his daughter stay at his residence overnight is the correct and preferable decision, having regard to the material and any applicable written or unwritten law: s63 of the Administrative Decisions Review Act 1997 (NSW)). I may take into account material which was not before the primary decision maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

3. In exercising my jurisdiction, I am guided by the principles set out in the Guardianship Act, in particular the need to protect the welfare and interests of those who are subject to a guardianship order. (s4(a) of the Guardianship Act 1987 (NSW); P v NSW Trustee and Guardian [2015] NSWSC 579).

4. In determining this matter, I am not bound by the decision of the Public Guardian. Rather, it is my role to make the correct and preferable decision on the evidence before me, and in light of the relevant legislation, including the principles set out in the Guardianship Act. Having taken this all into consideration and for the reasons set out below, I have decided to affirm the decision of the Public Guardian to refuse the applicant’s request to have his daughter stay overnight with him at his residence.

Non- publication of names 

5. Pursuant to s64 of the Civil and Administrative Act 2013, I have made an order prohibiting the disclosure of the name of the applicant, the second and third respondent and the person subject to guardianship. For this reason, I will refer to the person subject to guardianship as ‘the daughter’, to the applicant as FYB or the father, the second respondent as FZN or the mother and the third respondent as GBB or the stepfather.

Issues 

6. The following issues arise in this matter: 

1. As a result of the daughter’s various diagnoses, what is her functional capacity? 

2. What are the daughter’s needs with respect to matters such as her care and equipment? 

3. Are these needs met in the father’s proposal for overnight visits to his residence? 

As a result of the daughter’s various diagnoses, what is her functional capacity? 

7. It is not in dispute that the daughter suffers from the neurodevelopmental condition, Rett Syndrome, in addition to cerebral palsy, scoliosis, epilepsy and ocular albinism (which renders her legally blind). She has severe physical and intellectual disabilities, is non-verbal, doubly incontinent and wheelchair-bound.  

8. In a report prepared on 12 January 2024, occupational therapist, Warren Berger, assessed the daughter’s functional capacity as follows: 

1. mobility: non-weight bearing, wheelchair bound, bed bound; 

2. poor trunk stability; 

3. no functional use of her hands and arms bilaterally; 

4. no fine motor skills with her hands developing contractures; 

5. no functional use of her lower limbs; 

6. non-verbal; 

7. moderately impaired vision; 

8. severely impaired cognition. 

9. According to Mr Berger, the daughter requires full assistance by two carers with toileting, dressing, grooming and feeding. One carer is insufficient due to the daughter’s uncontrolled movements, her unpredictable behaviour, her inability to meaningfully use her hands and fingers and the risk of injuries to both the daughter and her carers.  

As a result of her diminished functional capacity, what are the daughter’s needs with respect to matters such as her care and equipment? 

10. To manage her diminished functional capacity, the daughter is provided with the following facilities and equipment at her supported living accommodation: 

1. an adjustable bed with padded safety rails; 

2. a bath/change trolley; 

3. a powered ceiling hoist for transfers between her bedroom and adjoining bathroom;  

4. a powered floor hoist for all other transfers; 

5. a purpose-built day bed and personal massage chair, used for ‘out of chair’ time. 

11. She has her own carer to look after her when she is awake, two carers to administer her medication, feed her, dress, wash and groom her and transfer her (for example from her wheelchair to her bed or to the shower). At night, there are two carers on shift when the five residents are sleeping. 

12. On the evidence before me, I am satisfied that the equipment provided by the supported living accommodation is required to meet the daughter’s needs. I am also satisfied that, given the daughter’s need for twenty-four-hour care, the carer ratio provided by the supported living accommodation is necessary to properly manage the daughter’s needs and not risk injury to her or to the carers when transferring her.  

Are these needs met in the father’s proposal for overnight visits to his residence? 

13. It is not in dispute that the father lives in a one-bedroom split-level unit, with the bedroom at entry level and the living area accessed by internal stairs. It is also not in dispute that hoists to transfer the daughter are not fitted in the unit. According to the 2020 report prepared by occupational therapist, Kendrick Morgan, the father’s unit does not have enough space to safely use a mobile hoist in either the bathroom or the bedroom. No evidence has been provided to me to contradict this assessment. Accordingly, I am satisfied, on the evidence before me, that the father’s unit is unsuited to a mobile hoist.   

14. The daughter is now twenty-nine years old and weighs approximately fifty kilograms.  This is a substantial weight for the father to carry up and down stairs when transferring the daughter from the living area to the bedroom of the father’s unit. Apart from her weight, the daughter suffers epileptic fits during which her body jerks, making it even more difficult to carry her.  By carrying his daughter in his unit, particularly up and down the internal stairs, the father risks tripping and falling and thereby injuring himself and his daughter. He also risks dislodging the daughter’s feeding tube when carrying her.  

15. In the risk assessment report prepared by the father in March 2023, he does not refer to any other carer support during his daughter’s proposed overnight stays with him. As set out above, it is not in dispute that, at her supported living accommodation, the daughter has two carers to assist with her personal care and feeding and lifting her with a hoist. For the father to do these tasks alone would risk injury to himself and his daughter, given the strength needed to lift, shower and change her. For these reasons, I am not satisfied that the daughter’s needs can met in the father’s proposal for overnight visits to his residence. It would, therefore, not be in the daughter’s best interest to have overnight stays at her father’s current residence. 

16. In making this finding, I have considered the principles set out in the Guardianship Act and have given paramount consideration to the welfare and interests of the daughter, noting that, given the nature of her disability, the daughter is unable to provide her views in relation to her father’s request.

17. In considering the importance of preserving family relationships, I accept the father’s commitment to his daughter and his desire to be present for her and to care for her.  I accept, too, that until 2019, his daughter did have overnight stays with him. I admire the applicant’s commitment to his daughter and his willingness to be so actively involved in her care.  As set out above, however, there are too many risks involved in the daughter having overnight stays in a residence that is ill-equipped to manage her needs. On the evidence before me, these needs are better met by her supported living accommodation.   

18. I note the mother’s evidence that the daughter does not require personal care for periods of up to four hours, which would allow the father to spend meaningful time with his daughter, either in the supported living accommodation or by taking her out, especially given he has arrangements in place for her transportation. I note the mother’s evidence that the supported living accommodation arranges outings on the weekend that the father might also attend. The mother is also amenable to the father taking the daughter on other outings during the day, in addition to visiting her at her supported living accommodation.  

Conclusion 

19. For the reasons set out above, I am satisfied that it would not be in the best interests of the daughter to stay overnight with her father in his current residence.  

20. Accordingly, the decision of the Public Guardian to refuse the applicant’s request to his daughter stay overnight at his residence should be affirmed. 

Orders 

1. The decision of the Public Guardian on 21 July 2023, to refuse the applicant’s request to have his daughter stay overnight at his residence, is affirmed.  

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 05 September 2024