G v K

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: 'G' -v- 'K' [2007] WASC 319

CORAM: JENKINS J

HEARD: 20 SEPTEMBER 2007

DELIVERED : 21 DECEMBER 2007

FILE NO/S: CIV 1248 of 2007

BETWEEN: 'G'
Applicant
AND
'K'
First Respondent
'M'
Second Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :MS F CHILD

MR J MANSVELD
MR J JAMES

Citation :TJC [2007] WASAT 105
File No :GAA 1448 of 2006, GAA 1449 of 2006

Catchwords:

Guardianship and administration - Appointment of guardian - Whether Tribunal failed to ascertain or take into account the views and wishes of represented person - Representation of represented person - Procedure before Tribunal

Legislation:

Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2)(f), s 16(4), s 21, s 22, s 29, s 30(1), s 43(1), s 44(5), s 45, s 46, s 97(1)(iii), sch 1 pt B cl 12
Rules of the Supreme Court 1971 (WA), O 65 r 8
State Administrative Tribunal Act 2004 (WA), s 32(1), s 40, s 87(1)

Result:

Application for leave to appeal granted
Appeal allowed
Matter remitted to the State Administrative Tribunal for rehearing

Category: B

Representation:

Counsel:

Applicant:     In person
First Respondent           :     Ms W F Buckley
Second Respondent       :     No appearance

Solicitors:

Applicant:     In person
First Respondent           :     Shaddicks Lawyers
Second Respondent       :     No appearance

Case(s) referred to in judgment(s):

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460
TJC [2007] WASAT 10

JENKINS J: The applicant seeks leave to appeal the decision of the State Administrative Tribunal on 26 February 2007 to appoint her daughter, the first respondent, the limited guardian of her grandson. The second respondent did not appear.
The Guardianship and Administration Act 1990 (WA) s 3 provides that a person in respect of whom an application is made is a party to a guardianship proceeding in the Tribunal. The applicant's grandson does not appear to have been made a party to the application before the Tribunal and neither was he named as a party to this application. Later in these reasons, I will comment on the effect of his absence on the proceedings before the Tribunal.
The applicant and the first respondent agree that if I grant leave to appeal, I should determine the appeal without a further hearing.

Description of the parties

To protect the applicant's grandson's privacy and to ensure compliance with the Guardianship and Administration Act sch 1 pt B cl 12, I will use the following letters when I refer to various people and the applicant's grandson's place of residence:

The applicant	G
The applicant's grandson	T
The first respondent, being the applicant's former daughter‑in‑law and the mother of T	K
The second respondent, being the applicant's son and the father of T	M
The country town in Western Australia where T lives with K	B

I will also order that the title of the proceedings be amended to reflect this anonymisation.

Grounds of the application

The applicant seeks leave to appeal on the following grounds:
1.That the tribunal erred in failing to discern or take into account the wishes and views of T
2.That the tribunal erred in failing to make the best interests of T paramount
3.That the decision of the tribunal is not in the best interests of T
4.That G stood in the position of loco parentis of T for the first twelve years of his life, until he was taken away by the first respondent to Western Australia and the tribunal erred in failing to take this into account.
5.That the tribunal failed to make proper inquisition into, or to take proper account of the gross and callous negligence of T throughout his life.
6.That the tribunal was put on notice that the first respondent had been incompetent and incapable of providing adequate care for T and failed to take this into account, or to make proper inquiries thereafter.
The applicant seeks orders that the decision of the Tribunal granting guardianship of T to K be set aside, that the Public Advocate and the applicant be appointed joint guardians of T and that two part time carers should be appointed for T's personal care and companionship. Alternatively, she seeks orders that the Public Advocate be appointed guardian of T.

Nature of the application

At the initial hearing of the application, the first respondent submitted that the applicant could only seek leave to appeal on a question of law. This was incorrect as the provisions of the Guardianship and Administration Act apply, despite the enactment of the State Administrative Tribunal Act 2004 (WA).
The Guardianship and Administration Act s 21 provides that an application for leave to appeal may be made on grounds that the Tribunal made an error of law or fact, or both law and fact. It further provides that an application for leave to appeal may be made on a ground that the Tribunal acted without or in excess of jurisdiction or that there is some other reason that is sufficient to justify a review of the determination. The Guardianship and Administration Act s 22 provides that I should only grant leave to appeal if it is shown to my satisfaction that there is a prima facie case justifying an appeal on one or more of these grounds.
The Rules of the Supreme Court 1971 (WA) (SCR) O 65 r 8 provides that an application governed by O 65, which this application is, will be by way of rehearing. A court dealing with an application for leave to appeal or an appeal by way of rehearing can exercise its powers only if satisfied that there was an error on the part of the original decision‑makers: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 203. The principles applicable to such matters were set out by Buss J (Steytler P agreeing) Lackovic v Insurance Commission of Western Australia (2006) 31 WAR 460 477 ‑ 478. I am required to conduct a rehearing based on the material before the Tribunal and any further material I admit into evidence: Guardianship and Administration Act s 29. My ability to find error is limited to the extent that the Tribunal's decision relied upon a view of a witness' credibility based on demeanour and impressions. This is because I did not have the advantage of seeing and/or hearing the witnesses as they gave their evidence.
There was no additional evidence tendered at the hearing of the application. Subsequent to the hearing I received correspondence from G enclosing documents she had obtained from the B police. These documents consist of reports of six jobs completed by the B police between May 2005 and September 2007. As the documents have been obtained under freedom of information legislation, the personal details of the person to whom they relate has been omitted. They all refer to the fact that a boy, apparently intellectually disabled, had been found walking alone in the B area. An inference is available that the documents refer to T. As the first respondent has not had an opportunity to see these reports, I will not take them into account. In view of my decision on this application, G will be able to decide whether to use the documents in the future proceedings in the Tribunal.

The application to the Tribunal

G, K, M and the Public Advocate each applied to the Tribunal, pursuant to the Guardianship and Administration Act s 40, to be appointed guardian of T. Those applications were heard together on various dates in 2006 and on 26 February 2007.
The State Administrative Tribunal Act s 32 provides that the Tribunal is bound by the rules of natural justice, shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms. The section also provides that the Tribunal shall not be bound by the rules of evidence, but may inform itself on any matter in such matter as it thinks fit.
The Tribunal heard from the applicants or their representatives. They also heard evidence from Mr Steven Cohen, a clinical psychologist who had been asked by K to assess T and K. The Tribunal did not hear from T.
At the conclusion of the hearing on 26 February 2007, the Tribunal ordered as follows:
1.[K] be appointed limited guardian of [T] with the following functions:
(a)To decide where [T] is to live, whether permanently or temporarily;
(b)To decide with whom [T] is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of [T]; and
(d)To determine the services to which [T] should have access.
2.The Public Advocate be appointed limited guardian of [T] with the following function:
(a)To determine what contact, if any, [T] should have with others and the extent of that contact.
3.The Tribunal approves delegation by the Public Advocate of her functions as guardian of [T] to an officer or employee employed in the Office of the Public Advocate.
4.This order is to be reviewed by 26 February 2008.
The Tribunal indicated that it would publish written reasons for its decision at a later date. On 10 May 2007 those reasons were published.
The reasons are substantial and comply with the Tribunal's statutory obligation to provide written reasons of its decision.

Reasons for decision

The reasons note that T is a young man, then aged 19 years. He was born in New South Wales. He suffered 'neonatal hypoxic ischaemic encephalopathy and subsequent cerebral palsy with a spastic left hemiplegia, epilepsy, and moderate intellectual disability'. It was noted that until relatively recently the epilepsy had been poorly controlled. The reports before the Tribunal referred to profound impairments of adaptive behaviour and maladaptive behaviours including aggression, tantrums and absconding. T's communication skills were described as poor. The severity of T's intellectual disability rendered him in the long term dependant on adults for assistance with his daily living.
T is the eldest of five children of K and M. M suffered significant injuries in a motorcycle accident when T was a baby and continues to suffer the affects of those injuries. The relationship between the parents of T has been difficult and they are now separated. T, his parents and siblings lived in New South Wales until T was approximately 12 years of age. Up until then G had a lot of contact with T. T now lives with K and all but one of his siblings in B, a country town in Western Australia. In 2002, K and M agreed that T would live with K and that M would have a two week block of contact each year. Some members of K's extended family live in B. M and one of T's brothers live in country New South Wales, as does G and some other members of M's extended family.
So far as the family background is concerned the Tribunal said:
The parents of [T] were married in 1987 and divorced in May 2005. There was a long period of separation when [K] left New South Wales with the children in late 1999 or early 2000 and lived in Western Australia until October 2005. It seems that [K] did not disclose her whereabouts to [M] and the father and his extended family did not know where his children were living for some period of time.
In 2004, [T] received a large sum in compensation for injuries he suffered at birth. In mid 2005, the funds were released following an order for the appointment of a trustee company as administrator of his estate.
A property was purchased by the administrator in a country town in Western Australia for [T]. [T], [K] his mother and siblings lived there until October 2005 when, following a visit to Western Australia by [M], [K] and children, including [T], moved back to New South Wales in an attempt to reconcile with the father of the children. The attempted reconciliation failed and [K] and children reportedly moved to a women's refuge in New South Wales and then later returned to Western Australia in mid 2006. The property which had been purchased by the administrator and in which the family had been living prior to the move from Western Australia had, by that time been sold, despite what was said to be the express instruction given by [K] that it not be.
Since returning to Western Australia and the applications made to the Tribunal, [T] has commenced an alternative to employment programme and further social activities are planned for him. He has also since this time attended regular physiotherapy and speech therapy and has more recently attended an appointment with a neurologist to review his epilepsy. Further dental treatment is said to be planned for him in the near future. He is living with his mother and siblings in a rented house while an appropriate property is considered for purchase by the administrator. His main activities are said to be his attendance at the alternative to employment programme and family outings with his mother, siblings and maternal aunt and cousin. TJC [2007] WASAT 105, [15] ‑ [18]
The Tribunal then referred to the relevant statutory provisions contained in the Guardianship and Administration Act s 4:
1)the primary concern of the Tribunal must be the best interests of [T];
2)every person is presumed to be capable of looking after his own health and safety and making reasonable judgments about matters relating to his person until evidence satisfies the Tribunal to the contrary;
3)a guardianship order may not be made where there is an alternative means of meeting a person's needs that is less restrictive of his freedom of decision and action;
4)where an order is made, it must be in terms that impose the least restriction on the person's freedom of decision and action; and
5)the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned [19].
The Tribunal noted that the guardianship applications had been adjourned to allow for investigation by the Public Advocate. After that investigation, the Public Advocate's representative recommended that the Public Advocate be appointed as T's plenary guardian.
The Tribunal summarised the evidence and material before it. There was a considerable amount of written material about T's past medical history, dental treatment, speech pathology, occupational therapy and physiotherapy. There were also statements and submissions from the various parties.
The Tribunal noted that, in summary, the allegations made by G regarding the conduct of K were that she had neglected T's health in that his dental care had been neglected to the extent that his teeth had rotted and he had suffered pain. She also alleged T had suffered cracked hands and feet, acne, poor diet and that K had been uncaring of him. This lack of care on behalf of K was said to be shown by her leaving T alone in the house, allowing him to run away from home and not reporting him missing to the police. G submitted that the mother had not provided a safe environment for T.
The Tribunal noted that M supported the allegations of G in respect to the neglect of T's dental care. M had stated that his contact with T was limited and that K had undermined his attempts to have regular telephone contact with all his children.
On the other hand, K had characterised her relationship with M as one marked by domestic violence. M entered a plea of guilty to an assault on K in June 2006. M had described the assault as a technical one and said that he had not punched K. He admitted that he assaulted one of his children but denied assaulting T as alleged by K. K obtained a 12 month apprehended violence order, naming M as the respondent, from the New South Wales Local Court in October 2006.
In respect of M's relationship with G, M stated that he detested her because she interfered in the running of his home and that she was 'continuously hassling him over [K's behaviour]'.
There was a dispute between the parties as to the amount of contact T had with M and G. K said that telephone contact occurred in compliance with the terms of a consent order from the Family Court. Further, proposals had been made for block contact between T and M in Western Australia. In respect of this contact, M stated that there was no medical reason why he could not travel but that he was reluctant to travel to Western Australia because he was afraid of his former sister‑in‑law. The Tribunal noted that this was not consistent with G's submissions that it was difficult for both her and M to travel to visit T for medical reasons.
The Tribunal referred to the evidence of Mr Cohen. It said that it accepted him as having expertise in the assessment of persons with intellectual disability. It noted that both M and G were invited to participate in his assessment but had not responded. G had advised the Tribunal that she declined to participate in the assessment on the advice of her solicitor.
Mr Cohen's assessment was based on an hour long interview with T and K and a review of the written material submitted to the Tribunal. The psychologist stated that, in his opinion, the primary relationship of T is that with K. He noted that K had conceded that she had made some mistakes in T's early life and had missed appointments because she was attempting to balance the needs of T with those of her other children.
As to T's capacity to understand the purpose or meaning of the assessment that he had undertaken, Mr Cohen said that T was able to give spontaneous emotional feedback in an immediate sense but, because of his intellectual disability, he was not capable of expressing where he wished to live or understanding what such a decision involved.
Mr Cohen stated that because of the developmental difficulties experienced by T, his needs would best be met by a consistent, preferably 'one to one' carer in a family situation. Less desirable would be paid carers, who would be likely to lack continuity.
The Tribunal noted that Mr Cohen's evidence was challenged by G because it was based on a short interview by a psychologist who did not know T.
The Tribunal noted that it had obtained extensive health records in regard to T. It noted that there were references in those records to missed appointments and break downs in communication between health care providers and the family. The Tribunal stated that when T lived in New South Wales the applicant was, according to the files and her own evidence, heavily involved in T's attendance at medical appointments and often stayed with him when he was admitted to hospital.
The Tribunal noted that there was a reference in the records to the family ceasing T's anti‑epileptic medicine in 1997 which contributed to him fitting at that time. There was also reference to a failure to adhere to medical regimes and lack of engagement with services, such as speech therapy and physiotherapy. There was also a reference to a painful burn suffered by T while he was in the care of G. This became infected and required skin grafts when he was about 3 or 4 years of age.
The Tribunal noted that it received a report from a general practitioner in New South Wales referring to the period up until June 2000. The general practitioner opined that T struck him as being well looked after by his parents. Another report from a general practitioner in Western Australia stated that he had seen T 14 times between March 2001 and December 2004. The house in which the family had lived had been next door to his surgery and he had seen T frequently. He noted that K was a 'caring person' and that he had 'no concerns about the standard of care' of T.
In respect to the allegations that K neglected the dental health of T, the Tribunal simply noted the allegation made by both G and M. It further noted a report dated 9 October 2006 from the Oral Health Centre of an assessment in 2004 of numerous dental problems and the treatment of T's teeth under a general anaesthetic in January 2005.

Next, the Tribunal referred to a report from a speech pathologist which noted that T's speech is unintelligible to unfamiliar listeners. The Tribunal said that it was not clear from the material before it the extent, if any, of speech therapy that T had received since he left school.
Next, the Tribunal considered correspondence from doctors at Princess Margaret Hospital (PMH). This material included a letter in December 2003 to a general practitioner from a neurologist, which noted that urgent assistance was required with in‑home and out‑of‑home respite and the behaviour management programme for T because of his 'violent and difficult behaviour'. In February 2004 doctors at PMH wrote again to the general practitioner noting that following the involvement of the Disability Services Commission, the behaviour of T had improved and the degree of aggression had reduced. The author noted that 'wandering was still a problem'. The letter noted that at that time T was 'well supported at the [Special] School' where he attended.
The Tribunal then referred to K's statements wherein she conceded that in the early life of T she and the family faced many difficulties, including financial, health and other problems. In addition, she experienced difficulties with M's behaviour. She agreed that G had been involved in the care of T and had taken him to appointments. Her justification for this was that G was unwilling to care for her other younger children so that she, K, could attend the appointments. K denied that G had been T's primary carer during this or any other period. The Tribunal noted that the medical files from a New South Wales hospital contained references to G presenting T for treatment and the possible conflict or lack of consistency in the care of T within his family. The Tribunal also noted that K alleged that G had opposed the use of anti‑epileptic medication due to its side effects. She was alleged to have intervened in the treatment proposed by a dentist for T.
The Tribunal said that K had submitted that between 2000 and 2005, while living in Perth, she had little family support and had considerable difficulty managing T's behaviour. Two medical reports completed in 2002 noted that T exhibited significant challenging behaviour such as running away, temper tantrums, inability to follow directions and self‑stimulatory behaviour such as teeth grinding which supported this evidence. In respect to the delay between the referral to a neurologist for management of T's epilepsy in 2003 and T's eventual attendance in January 2007, K stated that during this period she was travelling to New South Wales for Ts' compensation case and this had placed considerable demands on her. She stated that since her return to Western Australia in July 2006, the dental treatment of T 'was back on track' and appointments with an oral surgeon were to be made later in the year for further cosmetic work on T's front tooth. K stated that T attended the neurologist in January 2007 and a further appointment was planned. She considered T's epilepsy to have stabilised on new medication although he went through phases of fitting.
K submitted that since the family moved back to Western Australia, a number of services had been engaged for T, including an alternative to an employment programme which he attended twice weekly. I was given further details of this. T attends the Activ Foundation Inc (Activ) each Monday and Friday and for half a day each Tuesday. The recreation officer from the programme stated that T enjoyed the arranged activities, 'was always smiling' and was a valued member of the group. She said that he had formed friendships 'in his own way'. The officer stated that K was open, co‑operative and appropriate in her dealings with her.
A report of an occupational therapist, prepared at the request of the Public Advocate and dated 13 November 2006, reported that following a home assessment the current accommodation of T with K and T's siblings was appropriate.
The Tribunal then dealt with the issue of the capacity of T. It referred to the Guardianship Administration Act s 43(1)(b) which provided that before the Tribunal could appoint a guardian, it must be satisfied that the person for whom an order was sought has attained the age of 18 years and is:
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
The Tribunal found that T was a person for whom all three of the paragraphs quoted above applied. This finding is not disputed by G.
The Tribunal then dealt with T's need for a guardian. It noted that before it could appoint a guardian for T it must be independently satisfied that there was a need for a guardian and that the needs of T could not be met by other means which were less restrictive of T's freedom of decision and action.
The Tribunal then referred to the Public Advocate's representative's submissions. Those submissions noted that there was a history of problematic engagement with services for T and that while K had been co‑operative, engaged services and dental care and managed T's epilepsy since the applications had been initiated in the Tribunal, these arrangements were relatively recent. The submission was that to ensure ongoing services for T there should be an impartial authority, the Public Advocate, to make decisions on health care and services for T. The Public Advocate also recommended that a case manager be engaged to co‑ordinate services in line with a recommendation made in a report prepared for T's compensation claim. The Public Advocate submitted that an independent guardian should be appointed to decide where T should live, given the conflict between the parties and the competing proposals of K, M and G. The representative of the Public Advocate said that a further report in relation to the appropriateness of the current accommodation of T should be obtained and that in coming to a decision about where T should live, the Public Advocate would take into account the consent orders made in the Family Court in 2002 and the outcome of M's application to vary those orders. The representative of the Public Advocate did not recommend that the current care arrangements be changed. The Public Advocate submitted that plenary authority should be granted to the Public Advocate as guardian to ensure that any contact arrangements could be enforced; including the recovery of T from New South Wales should the terms of any contact arrangements not be honoured.
Under a heading of 'Findings' the Tribunal said that it considered that T's family had experienced significant difficulties. The effect of this had been that there had been periods in T's life when it appeared that his needs, including essential health care, had not been met. This was apparent taking into account the evidence of the New South Wales Regional Hospital file as well as the more recent delay in specialist follow‑up of management of T's epilepsy and provision of dental care.
The Tribunal found that up until 2000, T was primarily in the care of both parents although G provided an important role in providing respite care and assistance in attending medical appointments with T.
In the period from 2000 until late 2005, whilst T was in the sole care of K, the medical records showed that there was a gap in the specialist management of T's epilepsy and missed appointments for his dental care.
The Tribunal noted that against this, the evidence of the general practitioners who provided T's regular medical care in both Western Australia and New South Wales supported the role played by the parents as providing appropriate care for T.
The Tribunal said that it was apparent from the reports before it that there had been occasions when T had wandered away from home. However, it found that it did not have any evidence that K failed to take steps to find T or did not report him missing.
The Tribunal inferred that there was no evidence of any recent statutory intervention in respect of T but that there was some monitoring of the family and its care of T by agencies in Western Australia. The Disabilities Service Commission had provided services to the family from 2004 and T's school had also provided support.
The Tribunal found that whilst T may not have had all the services which had been identified as necessary for his development, it could not be said that his health and personal care were neglected by K in the manner alleged by G. The Tribunal said that G laid all the failures in the provision of services at the feet of K. Whereas, the Tribunal accepted the explanation of K that the combination of problems experienced by the family had led to a number of difficulties and that with assistance she had been able to arrange for services for T that were now in place.
The Tribunal considered that it was of concern that K moved back to New South Wales in 2005, disrupting the family and other support of K and T. The Tribunal found that the move had had a negative impact on T and on his estate. The Tribunal was satisfied that the current services, including medical treatment, recreational activities, dental treatment and allied therapies were meeting the needs of T. The Tribunal considered that T's accommodation was presently stable and that his need for accommodation was met by K.
The Tribunal found that the involvement of G, while well‑intentioned, appeared to have caused ambiguity, at least historically, as to who had authority to consent to treatment for T. G's insistence that she was the primary carer for the first 12 years of T's life, although not a position supported by either K or M, suggested that she did play a significant role in his care and this may have contributed to this ambiguity.
The Tribunal found that the animosity between G and K was clearly evident. It found that G minimised the incident of domestic violence which her son admitted and she did not acknowledge any of the difficulties which the family experienced other than by way of making further criticism of K.
The Tribunal noted that the evidence of Mr Cohen, the occupational therapist and the Activ recreation officer was at odds with the allegations made by G of continuing neglect of T by K. The Tribunal accepted that their contact with T had been limited. However, the Tribunal preferred their evidence to that of G. It found that G's concerns about the past delays in dental treatment of T may be justified, but the other general allegations made by her of ongoing neglect were not supported by the evidence, particularly as G could have no direct knowledge of T's day‑to‑day care by K when T was living in Western Australia. G's continued assertion of these allegations appeared to the Tribunal to be a reflection of her fixed beliefs about K.
The Tribunal was satisfied that, given the history of conflict, there was no less restrictive means of ensuring the particular needs of T were met, other than by making guardianship orders. G does not challenge this finding.
The Tribunal found that it was necessary for an independent person to be appointed to manage M's and G's contact with T.
The Tribunal accepted Mr Cohen's evidence about T's inability to contribute in relation to the decision about where he should live or in relation to the proceedings before the Tribunal. The Tribunal found that it was not possible to ascertain the wishes of T in relation to the appointment of a guardian.
The Tribunal then considered who was the appropriate person or persons to be appointed as a guardian or guardians of T.
The Tribunal noted that, unless the Public Advocate was appointed jointly with another person, she may not be appointed a guardian unless the Tribunal made the finding that there was no other person who was suitable and willing to be appointed guardian: the Guardian and Administration Act s 44(5). It noted that the Public Advocate's representative did not support a joint appointment of the Public Advocate with any party, submitting that decision‑making might be compromised because of the level of conflict and the opposing views of the parties regarding where T should live.
On balance the Tribunal considered that the appointment of K as sole guardian to determine where T should live and to consent to services on his behalf was the least restrictive one which would meet his needs. Taking all of the evidence as a whole, the Tribunal did not consider that a finding that K is not suitable for appointment had been made out.
The Tribunal found that the issues which had been identified as requiring the authority of a guardian were addressed by two limited orders. One based on the proposals of K for the care of T and her appointment with the necessary authority to facilitate the provision of services to T. The second granting limited authority to the Public Advocate to determine contact with T's family in New South Wales.
The proposal by M that he be appointed guardian was not accepted by the Tribunal. G does not challenge this finding.
The Tribunal rejected G's proposal that she be appointed guardian. Her proposal for the care of T in New South Wales was not considered appropriate. The Tribunal found that she was concerned for her son and T. However, her animosity to K was evident and she was, unfortunately, alienated from both of T's parents. The Tribunal did not consider that G would give adequate weight to the importance of K or T's siblings in the life of T. The Tribunal noted that G's evidence about her relationship with M was contradicted by M and only reinforced the extent of the conflict in the relationship and the need for formal authority to manage the needs of T.

Ground 1

Proposed ground 1 of appeal alleges that the Tribunal erred in failing to ascertain or take into account the wishes and views of T. The applicant's written submissions contend that the Tribunal had ultimate responsibility to make its own assessment as to whether T was capable of having and expressing a wish as to who should be his guardian. It is alleged that the Tribunal failed to fulfil its responsibility to discern for itself whether T could have expressed his wishes in this matter, irrespective of the expert evidence.
In respect to the evidence of Mr Cohen, the applicant submitted that he did not assess T in respect of this issue and 'merely addressed the question in retrospect'. It is submitted that the evidence of Mr Cohen should have been ruled inadmissible on this issue, or at least given no weight.
The first respondent submitted that the obligation of the Tribunal to seek to ascertain and take into account the views or wishes of T was only 'so far as is possible'. The first respondent conceded that this is an example of a duty on the Tribunal that may require it to act, to a limited extent, in an inquisitorial fashion if the parties to the proceedings before the Tribunal do not choose to lead evidence relating to the question.
The first respondent submitted that the duty to seek to ascertain and take into account the views or wishes of T does not appear to be an onerous one. Whilst the Tribunal has a duty to enquire as to the wishes of T, if those wishes are not readily ascertainable at all or not ascertainable on evidence admissible in a civil court to a civil standard then the duty will still have been discharged.
The first respondent submitted that no prima facie error of law is disclosed because it was evident that the Tribunal properly identified the duty and made the enquiry [44], [65] and [92]. Thus, the Tribunal did not as a matter of law fail to ascertain or take into account T's reasons.
The first respondent further submitted that no error of fact is disclosed because there was evidence on which the Tribunal could base its finding that T was not capable of expressing his wishes [44], [65] and [92].
The first respondent also noted that the Tribunal had the benefit of T being in the hearing room during the hearing.
The Guardianship and Administration Act 1990 s 4(2)(f) states:
(f)In considering any matter relating to a represented person or a person in respect of whom an application is made the State Administrative Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time, or as gathered from the person's previous actions.
A number of important principles are set out in the Act s 4. These include that the primary concern of the Tribunal shall be the best interests of the person in respect of whom an application has been made and that a guardianship order shall not be made if the needs of the person could, in the opinion of the Tribunal, be met by other means less restrictive of the person's freedom of decision and actions.
I do not accept the first respondent's submission that the statutory duty to seek to ascertain the views and wishes of T was not an onerous one; although onerous is probably not the best description of the nature of the duty. T is a young adult. He has the same rights as every citizen to manage his own affairs, subject to the obligation of the Tribunal to appoint an administrator and/or guardian for him if the requirements of the Guardianship and Administration Act are met. The requirement in s 4(f) that, in exercising its statutory powers, the Tribunal take into account, as far as possible, the views and wishes of T is an important aspect of the exercise of those powers. No person should be deprived of his or her right and freedom to make decisions about their life without having had the opportunity to be heard. The right to be heard is a fundamental rule of natural justice, which the Tribunal was bound to accord to T: The State Administrative Tribunal Act 2004 s 32(1).
It is unclear to me why T was not a party to the proceeding in the Tribunal nor represented at the Tribunal. Plainly, it was not because there was a lack of funds to engage a legal practitioner to act on his behalf. Given his circumstances, I do not suggest that T was capable of giving instructions to a legal practitioner but the administrator of his estate could have appointed a legal representative to advocate on T's behalf. Alternatively, the Tribunal could have appointed a person to represent T or appointed a litigation guardian to conduct the proceedings on behalf of T: State Administrative Tribunal Act 2004 s 40.
At the hearing of the application for leave to appeal I was told that K's legal costs were being paid out of T's estate. I assume that, in order for this to occur, the administrator must have obtained a legal opinion that T's interests are identical to those of K. I will make no further comment about these issues given that the administrator was not represented before me.
It is sufficient for me to say that the absence of an independent representative for T at the hearing of the applications, placed an even heavier burden on the Tribunal to make enquiries and to satisfy itself that it had complied with its duty under the Act s 4(f).
In deciding that it was not possible to ascertain the wishes of T in relation to the appointment of a guardian, the Tribunal said that it relied upon the evidence of Mr Cohen. The Tribunal said [92]
The evidence before us from the psychologist is that T can express his wishes in an immediate way but cannot contribute in relation to the decision about where he should live or in relation to the proceedings before the Tribunal. We accept this to be the case and so it is not possible to ascertain the wishes of T in relation to the appointment of a guardian.
At [44] the Tribunal also referred to Mr Cohen's evidence in the following terms:
He describes T as not having the intellectual capacity to understand the purpose or meaning of the assessment that had been undertaken. In the psychologist's assessment, T is able to give spontaneous emotional feedback in an immediate sense to his surroundings but because of his intellectual disability is not capable of expressing where he wishes to live or understanding what such a decision involves.

The first respondent also relied upon [65]. In that paragraph the Tribunal said:
There were a number of medical reports before the Tribunal referred to earlier in these reasons. More recent reports received from the general practitioners treating T state that, in their view, he is incapable of making reasoned decisions about his living situation and his personal health care. The evidence of the psychologist at the hearing confirms this to be the case. No one took issue with this evidence.
I do not interpret the Tribunal as saying, in [65], that T was not able to express his views and wishes in respect to who he wished to be his guardian. The effect of this paragraph is that, according to the general practitioners, any view that T expressed about his living situation and his personal health care would not be a reasoned view. This is a different issue from the issue as to whether it was possible for the Tribunal to ascertain T's views and wishes. The first obligation of the Tribunal was to ascertain T's views and wishes if it was possible to do so. If they were able to be ascertained, a separate issue would have arisen as to how much weight should be put on the views and wishes.
I do not accept that just because a represented person may not be capable of intellectual reasoning, that reasonable steps should not be taken to ascertain his or her views and wishes. In this case, it was important that, as far as possible, T had a voice in the hearing to determine who should be his guardian. I also accept that as T functions on an emotional level, it was relevant for the Tribunal to take into account, if possible, his emotional response to issues related to guardianship, such as where and with whom he would like to live.
Before I turn to consider the evidence of Mr Cohen on this point, I express my concerns about the weight put on his evidence by the Tribunal. First, Mr Cohen only saw T for one hour in the presence of K. This was hardly an ideal situation in which to independently assess T. Before the Tribunal placed a great deal of weight on Mr Cohen's evidence, it should have weighed more carefully the limitations on his evidence given those circumstances. It seems highly unlikely to me that one hour is an appropriate length of time in which to assess a person with T's disabilities. Mr Cohen did not conduct a formal assessment of T's ability to express a view about where and with whom he wished to live. Further, the presence of K, which may have given T a sense of security during the interview, may also have been likely to colour any responses that Mr Cohen received from T.
The second matter which does not appear to have been weighed by the Tribunal in its decision to accept Mr Cohen's evidence, was the fact that he was instructed by K. He was not independently appointed. It is unclear to me why T's estate did not fund an independent psychological assessment. I do not, by these comments, cast any aspersions on the professional ethics of Mr Cohen. It seems to me that it is simply a matter of commonsense that given that funds were available for T to be independently represented and independently assessed then those funds, on the face of it, should have been made available for what was one of the most important decisions concerning T's life.
In regard to the independent assessment, both G's then counsel and K's then counsel submitted to the Tribunal that it would be in T's best interests for an independent assessment to be carried out to determine who would be the best guardian for T. It was submitted that such an assessment would require the assessor to interview each applicant and to inspect their homes. It was further submitted that the assessment should be paid for out of T's estate.
The Public Advocate did not support the submissions and said that the submissions confused the roles of carer and guardian. She submitted that if she was appointed guardian then her Office could conduct such an assessment in order to determine where T should live and who should provide his day‑to‑day care.
In rejecting the submissions made on behalf of the applicant and the first respondent, the Tribunal said:
We don't think that is going to assist us further. I think the position is that parties ‑ if they wish to provide further material for consideration by the tribunal about the suitability of an applicant for appointment, it's open for them to do that and, of course, the tribunal would consider any material put in that regard.
The issue is that in these matters section 16 of the Guardianship and Administration Act and the costs provision of the State Administrative Tribunal Act, if I can just turn that up, at 87 ‑ the starting position in relation to these matters is that everyone bears their own costs. In section 16(4) there has to be some good reason why we would depart from that position. Now, I think the position was put that the only way that this expert could be obtained or the report could be obtained is that if [T] bore the cost of that. We don't think that is appropriate in these circumstances.
It is open for people to bring more material to us. I think [T] is seeing various health care professionals and it might be the case that someone wants to update us in relation to those issues. The public advocate plays a role before the tribunal in investigating and putting submissions to the tribunal in relation to the question of suitability. So we say that in relation to that proposal we don't intend to make orders in relation to that.
In my opinion, the Tribunal erred in placing primary importance on the statutory costs regime. The issue of costs should have been considered after the Tribunal decided whether it was in T's best interests to obtain such a report.
It is apparent to me, as it was to the applicant and the first respondent, that the Tribunal would have been assisted by such a report and it would have been in T's best interests to obtain one. It can be seen from reading the Tribunal's reasons for decision that it placed quite a deal of weight on Mr Cohen's report. That Mr Cohen was instructed by one party only, saw only K and T and was not in a position to give an opinion concerning any of the other applicants, considerably qualified the quality of his report and the weight that could be placed on it.
To suggest that the other parties could have obtained their own expert reports, ignored the realities of the situation. K's application was financially supported by T's estate but the other applications were not. This was bound to lead to inequality in the resources between the parties.
As to the distinction between guardianship and care, the functions of a plenary guardian are set out in the Guardianship and Administration Act s 45. A limited guardian appointed under the Guardianship and Administration Act s 46, has such of the functions mentioned in s 45 as the Tribunal vests in him. The functions of a plenary guardian include, and the functions of a limited guardian may include, the power to decide where and with whom a represented person is to live and to decide other matters relating to the represented person's day‑to day life.
It was plain that if G was appointed guardian she was never going to decide that T should live with K or vice versa. The Public Advocate's submission, although technically correct, was only pertinent if she was appointed guardian. In any other case, the decision as to who was to be guardian would, in reality, determine where and with whom T was to live.
Turning then to the issue of who could have paid for a report, the State Administrative Tribunal Act s 87(1) says that:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
The Guardianship and Administration Act s 16(4) says:
4)The State Administrative Tribunal may, if it is satisfied that a party to proceedings commenced under this Act has acted in the best interests of the represented person or a person in respect of whom an application is made, order that such costs relative to those proceedings as the State Administrative Tribunal thinks fit be paid to that party by, or out of the assets of, that person.
The State Administrative Tribunal Act 2004 s 64(1) provides that the Tribunal may appoint an expert to assist it in relation to a proceeding whether by providing advice or professional services or by giving evidence. Section 64(2) provides that as long as the Tribunal gives a party notice of the intention to obtain such an assistance and gives that party an opportunity to be heard in respect to it and the costs of obtaining that assistance, the Tribunal may order a party to pay the Tribunal's costs of obtaining the assistance of an expert.
Taking these provisions into account, the Tribunal had more than an adequate discretion to mould its orders so that an appropriate report could have been obtained and, if appropriate, paid for out of T's estate. For example, if a litigation guardian had been appointed to conduct the proceedings on behalf of T that person may have thought that it was appropriate to order such a report. Alternatively, the Tribunal could have directed the Public Advocate under the Guardianship and Administration Act s 97(1)(iii) to investigate and report on these matters (rather than asking her to assess T's current living situation, as it did) and ordered that the costs of obtaining the report be paid from T's estate. That would have required the Tribunal to have come to the view that the obtaining of the report was in the best interests of T. Another option would have been for the Tribunal to consider appointing the expert itself. Prior to doing so it could have allowed the administrator of T's estate or T's litigation guardian to be heard in respect to whether the estate should be ordered to pay the costs of such an expert.
T has received a very substantial settlement to provide him with funds to meet the costs of his future care. The selection of an appropriate person who, together with the administrator of his estate, will be responsible for making decisions as to how those funds will be spent is one of the most important decisions to be made, affecting T's future. During the course of the hearing in the Tribunal, the presiding officer commented that the Tribunal had an obligation to deal with applications 'efficiently, speedily and to reduce the costs to the parties'. She said that applications had to be dealt with 'in a proportional way'. Even acknowledging the truth of these matters, given the conflict between the applicants, even including the Public Advocate, I remain of the view that it was in T's best interests for the Tribunal to receive independent expert assistance, if such assistance was available. The independent assistance could well have assisted the Tribunal to, as far as possible, ascertain the views and wishes of T and to assess the appropriateness of each of the private applicants to be his guardian.
Also, before turning to Mr Cohen's evidence, I note some of the other evidence that was before the Tribunal in respect to this issue. In a submission to the Tribunal dated 5 February 2007 K's solicitors said that it was their opinion that 'it would be difficult to ascertain [T's] true wishes'. They did not submit that it would not be possible to do so. A doctor's report submitted by K's solicitors said that T had the ability to make a limited contribution and that he spoke English.
The report of the Public Advocate stated '[T's] wishes are not able to be ascertained'. It does not appear from the report that the author of it had met T. No justification was given for this view.
A report from a speech pathologist dated 13 February 2007 noted that T had attended six of seven scheduled sessions since 11 November 2006. T had been 'co‑operative, compliant and eager to please for all of his sessions'. The speech pathologist reported that although therapy progress was slow, '[T] was making many more verbal and non‑verbal (eg gesture, pointing) communication attempts'.
K's solicitors submitted to the Tribunal a statement made by a qualified and experienced social skills trainer with Activ who had been working with T five days a fortnight between August 2006 and January 2007. She said in the latter months she had found T's speech to be a lot clearer and he was easier to communicate with.
M said that he had some telephone access with T. It is difficult to understand how this could occur without T having some verbal communication skills.
I now turn to consider Mr Cohen's report and evidence. Most of Mr Cohen's report comments on his assessment of T's mother, K. The comments he makes and his assessment is invariably positive. In respect to T, Mr Cohen states:
[T] suffers Epilepsy and Cerebral Palsy. He is a shy young man who during interview made minimal spontaneous conversation until about three quarters of the way through the interview when he became somewhat more confident. If asked a closed discreet question he was able to provide a yes or no answer. [T] is highly dependent upon his mother and other carers for his safety and wellbeing.
Under the heading of 'Capacities' Mr Cohen said:
[T] does however idolise his mother and during the joint interview never took his eyes off her and much of his mood during the interview reflected that of hers. That is, when she laughed, he laughed.
Later in his report, Mr Cohen noted that 'one of the things T clearly enjoys is the extent to which [K] normalises his life'. He also said that T became quite animated when talking about his brothers and his sister and the things that they do together. It does not seem that Mr Cohen spoke to T about M or G.
Later still in the report, Mr Cohen opined that T 'is not capable of outlining his wishes in respect of the application'.
Mr Cohen commented on K's suitability as a sole guardian. He said that she had acted in and fulfilled the position of T's sole guardian since he was born. He said that there would be nothing new about a sole guardianship role for her as it was one she had fulfilled more than adequately for the first 17 years of T's life. The unqualified terms in which Mr Cohen spoke of K, in my view, should have alerted the Tribunal to the need to be cautious about accepting his views without analysing them. This was because the Tribunal itself was not satisfied that K had 'more than adequately' fulfilled the role of sole guardian for T over his lifetime.
Mr Cohen gave evidence to the Tribunal. His evidence elaborated upon points he had made in his written report. He reiterated that in his view, T's relationship with K was 'an extremely strong one'. He based that opinion on T's 'mood' during the interview.
Both M and G made the point to the Tribunal that it was not possible to assess T in the space of an hour. G also made the point that if Mr Cohen had known T better he would have known that he had a habit of smiling and responding to people whether he was close to them or not.
Later in his evidence, Mr Cohen commented on his opinion with respect to T's capacity to express his views and wishes. He said that when he had asked T about the purpose of him attending for the assessment with himself, T smiled but made no answer. Mr Cohen concluded from this that T had no understanding of the purpose of why he was coming to see him. It is not clear from the evidence whether anyone had explained the purpose of the visit to T in a manner that he may have understood. Further, Mr Cohen said that he took into account that T went to the Activ Foundation and that he was registered with Disabilities Services which meant that he had an IQ of less than 69. Thus, he said it was highly unlikely that T would understand the purpose of the Tribunal or be able to provide an opinion in regard to the applications before it.
G's nephew, who assisted G in the presentation of her case to the Tribunal, put to Mr Cohen that he had not assessed T's ability to express views and wishes in an emotional manner. Mr Cohen said that he believed that spontaneously T was more than capable of providing emotional feedback but he lacked the intellectual capacity to understand what decisions were being made and the decision‑making process. G and her nephew put to Mr Cohen that the question was a simple one; that is, with whom would T rather live? Mr Cohen said to that issue, T was able to provide an emotional response to whoever was asking him at the time, depending upon very much the environment that surrounded him. He reiterated that T was not able to give a reasoned answer.
One of the difficulties I have with this evidence is that on the one hand Mr Cohen was saying that T's emotional responses were not valid because they were superficial and likely to be influenced by the context in which they were given. On the other hand, in his written report and his evidence, Mr Cohen was quite willing to opine that T 'idolised' K and had 'an extremely strong' relationship with K, apparently on the basis of those same emotional responses.
The other difficulty I have, is the one that I have already expressed. The issue for the Tribunal was not whether T was able to express his wishes in a rational and reasoned manner. The Tribunal had a statutory obligation to ascertain T's wishes and views, so far as possible, whether or not they were reasoned or rational responses.
It is disappointing, that the presiding officer cut the questioning of Mr Cohen short on these issues. I appreciate that it was difficult for the presiding officer to control the proceedings. From examining the transcript of the hearing and from my own experience with G in the course of the hearing of this application, I appreciate that G's enthusiasm to communicate her points, her nervousness and her lack of legal training can complicate proceedings. Nevertheless, the questions asked of Mr Cohen by G's nephew appear to me to have raised some relevant issues for the Tribunal's consideration.
Taking all this material into account, my view is that the Tribunal erred, in failing to take adequate steps to ascertain, 'in whatever manner', T's wishes and views in respect to the applications before the Tribunal. Further, the Tribunal erred in accepting the opinion of Mr Cohen on the question without considering the issues to which I have referred.

Ground 2

This proposed ground of appeal alleges that the Tribunal erred in failing to make the best interests of T paramount.
G submitted that the interests of T were so gravely jeopardised by the Tribunal's decision that as a matter of law, and objectively, his best interests have not been taken into account. G submitted that it is essential that the Public Advocate be appointed to a guardianship role in order to have oversight to ensure that there is no relapse or repetition of earlier neglect. She said that the Tribunal found that K had neglected T's best interests in the past and that meant that there was no guarantee that she would not do so in the future. G also submitted that the Tribunal failed to take into account how to best protect T's emotional as well as his physical needs.
The first respondent submitted that from reading the Tribunal's reasons it is clear that:
1.The Tribunal had access to a range of factual material;
2.Had the input of the evidence and oral submissions from both G and K;
3.The Tribunal properly recognised its obligation to consider the best interests of T;
4.The Tribunal weighed all of the competing evidence and in doing so did not consider matters that were extraneous to the decision to be made;
5.The Tribunal had regard to its obligation to take T's best interests into account when making its decision.
The first respondent submitted that this ground was in truth a complaint that, as a matter of fact, the applicant's case and evidence was not accepted by the Tribunal. The respondent said that the rejection of G's case was unsurprising given that:
1.T had been in the primary care of K and M for most of his life;
2.Whilst there had been lapses in the care provided by K, the care provided had generally been and was now appropriate;
3.T's accommodation needs were being met by K;
4.M was not an appropriate person to be appointed as guardian; and
5.G was also inappropriate to be appointed as guardian.

The Tribunal had an obligation to determine the applications after it had weighed all the evidence and submissions. The Tribunal had the advantage of hearing and seeing the first respondent and of hearing G and M. That advantage is not to be underestimated.
I accept that G is a loving grandmother who has spent a great deal of time, when she has been given the opportunity, caring for and looking after T. This was particularly so in the first 12 years of T's life, when K had young children to tend to and when she was having marital difficulties with M. However, G is not in a position to provide the amount of energetic supervision that T requires. That is why G would require paid carers to assist her. I also agree with the Tribunal that G would be unlikely to give adequate weight to the importance of T's relationship with K and his siblings.
M had had limited contact with T for a considerable time. He has ongoing health problems. I agree with the Tribunal that M's proposal that T live six months of the year with him in New South Wales and six months with K would not be appropriate unless there was expert evidence, for example from a psychologist, to support T's ability to adjust to such an arrangement. The Tribunal in this respect relied upon Mr Cohen's opinion that such an arrangement would lack the stability needed by T. For the reasons I have expressed previously, I would not be prepared to rely upon this aspect of Mr Cohen's evidence either. All the same, as a matter of commonsense, such an arrangement may be very difficult for T to cope with. Some independent expert evidence in support of the proposal would be required before it could be considered as a suitable arrangement.
As the Tribunal pointed out, it could not appoint the Public Advocate to be guardian unless there was no other person who was suitable and willing to be appointed guardian; the Guardianship and Administration Act s 44(5). Consequently, before it could consider the appointment of the Public Advocate as a sole guardian, it had to be satisfied that K was not suitable and willing to be appointed guardian. As K was and remains willing to be appointed guardian, the remaining question was whether K was suitable to be appointed guardian.
The Tribunal decided that whilst there had been 'real concerns' about the arrangements for the care of T in the past, 'taking all of the evidence as a whole and considering the present circumstances' of T and K's proposals for T's future care, a finding that K was not suitable for appointment had not been made out [96]. I assume that the Tribunal intended, by these words, to make a positive finding that K was suitable to be appointed guardian. This appears to be the finding required by the Act.
At the time the Tribunal made its decision, K was caring for T. There was a substantial body of evidence before the Tribunal to support K's submission that, at that time, she was making appropriate decisions on behalf of T and taking appropriate care of him.
The applicant has a number of concerns. The first is that K, by her own admission, sometime permits T to leave the house to 'cool off', after conflict or when he is frustrated. Sometimes, T also leaves the house without her knowledge and she is unaware of his whereabouts. G, quite rightly, makes the point that this is equivalent to allowing a small child to walk alone on the streets.
Mr Cohen had a different slant on it. He said that such behaviour could be beneficial in allowing T to exercise some independence and in resolving situations of conflict. Further, he said that B was a town where the police had experience in dealing with people with disabilities and that it was highly unlikely that T would come to harm on the streets of B.
This was a matter about which the Tribunal may have benefited from some independent advice. Just as it would be inappropriate to allow a child without the capacity for intellectual reasoning to wander the streets, I am unsure how it could be said to be the best option for T.
Nevertheless, this was just one matter for the Tribunal to weigh with all the other evidence before it. G is of the view that the evidence which did not support her application 'bamboozled' the Tribunal. However, G appears to misunderstand the obligation of the Tribunal to take into account and weigh up all of the evidence. The Tribunal could not just take into account or give weight to the matters relied upon by the applicant. Although a lot of the positive evidence about K and the treatment of T was of recent origin, it overall painted a picture of T having appropriate decisions made for him by K and being appropriately cared for by K.
The second primary concern of G was that in the past K had not taken appropriate care or made appropriate decisions on behalf of T. The Tribunal found, for example, that K's decision to attempt a further reconciliation with M in New South Wales in October 2005 had meant that T's medical and other needs had been adversely affected. Further, there was material from T's early life which showed that K had struggled to make appropriate decisions for T and to provide adequate care for him.
There are two areas of T's health care which are of particular concern to G. The first is in relation to the management of T's epilepsy. There was evidence before the Tribunal that this had been poorly managed within the family and that appointments had been missed, particularly because of K's move to New South Wales in 2005. At the time of the hearing before the Tribunal, K was apparently making genuine attempts to ensure that T received appropriate treatment for his epilepsy.
The second area of concern was T's dental treatment. G has always been particularly concerned about the state of T's teeth. There was evidence before the Tribunal that T had had to have major dental work carried out because of the poor condition of his teeth. Mr Cohen's view is that it is difficult to get people like T to manage their own dental health and that it is also difficult to manage it for them. Nevertheless, this was another area where there seemed to be some substance to G's complaints that K had failed to exercise appropriate decision‑making responsibility for T. On the other hand, it was also another area where there appeared to have been recent improvement in K's response.
It cannot be said, on a fair reading of the Tribunal's reasons, that the Tribunal failed to take these matters into account. An important aspect of the Tribunal's decision is that it ordered that the decision be reviewed within 12 months. This appears to be an attempt by the Tribunal to ensure that the positive signs that it saw in K's treatment of T would continue.
G's submissions rely upon a premise that K was incapable of maturing, becoming more caring and improving her decision‑making abilities. Whereas, there was evidence before the Tribunal that this was occurring, she was making appropriate decisions for T and caring for him in an appropriate manner. The order for review was a means by which to monitor the stability of these improvements.
For these reasons, I am not satisfied that if the evidence which was before the Tribunal is taken into account that the interests of T were so gravely jeopardised by the Tribunal's decision that as a matter of law his best interests had not been taken into account.

Ground 3

This ground raises the same issues of substance that I have dealt with in respect to ground 2. Again, I make the point that my finding in respect to these grounds is on the basis of the material that was before the Tribunal.

Ground 4

G has always claimed that she stood in the position of parent of T for the first 12 years of his life because of the failure of K to look after him. She submitted that given K's past neglect of T's physical and emotional wellbeing she was the appropriate person to be appointed guardian. In the alternative, the Public Advocate should have been appointed guardian.
The first respondent submitted that no prima facie error is disclosed by this ground by reason that:
1.The Tribunal's finding of fact that T had primarily been in the care of K and M with respite care provided by G over that period was open on the evidence [75] and [84];
2.G's role was thereby acknowledged by the Tribunal; but
3.The role that G played in the past is of limited significance given the necessity for it to determine what T's needs are now and how those needs will best be met.
The first respondent submitted that it would have been an error of principle for the Tribunal to give undue weight to the involvement of G in T's life some six to seven years in the past.
It is clear that G played a significant role in the first 12 years of T's life. I would categorise it as more than a respite role. G was not just babysitting T, even on a regular basis. She was playing a very active role in T's care, including his health care. It was so active, that some health professionals noted that there were issues concerning the level of her involvement and whether it was helping or hindering.
I agree with the first respondent that the issue for the Tribunal was whether any of the private applicants were suitable to be guardian of T now and into the future. The evidence was that since late 1999 until October 2005, a period of nearly six years, G had had very little contact with T and K had been the primary carer for T. From October 2005 until mid 2006 K and T again resided in New South Wales and during this time G played a significant role in T's life. Since at least mid 2006, T and K had again been living in Western Australia and G had had little contact with T. Thus, the evidence before the Tribunal was that G had definitely not stood in the role of locus parentis for T for any considerable period since late 1999. Whatever the position was for the first 12 years of T's life, it was not and should not have been determinative of the applications before the Tribunal.

Ground 5

This proposed ground of appeal alleges that the Tribunal failed to make proper enquiry into, or to take proper account of, the gross and callous neglect of T throughout his life.
I have earlier referred to a number of the areas of T's life where G said this neglect is evident. Other issues raised by G include:
1.T being sent to school too young and for too many hours;
2.The failure of K to insist on having carers to assist in the care of T;
3.K not adequately caring for T between August 2005 and June 2006;
4.K not taking T to the doctor for treatment in respect to various ailments and injuries; and
5.K's constant moves disrupting T and his various treatments.
There was evidence before the Tribunal of these matters. The Tribunal had the obligation of weighing the evidence relating to those matters against the evidence which went to prove that K's decision‑making ability and treatment of T had improved markedly.
In respect to the allegation that the Tribunal failed to make proper enquiries into the allegations of neglect of T, I would repeat what I said earlier about my view that the Tribunal should have made further efforts to obtain independent assessments of the circumstances relating to each applicant.
In respect to the allegation that the Tribunal failed to take proper account of the allegations of neglect of T, in my opinion it cannot be said that the Tribunal failed to take proper account of the evidence that was before it. It had a duty to weigh up all the evidence. It cannot be said that there is a prima facie error shown in the manner in which it did that. Its judgment in these matters was to some extent based on its views of the credibility of K, M and G. Given that fact, it does not seem to me that I can interfere with the Tribunal's judgment in this regard.

Ground 6

This proposed ground of appeal alleges that the Tribunal had evidence before it that K had been incompetent and incapable of providing adequate care for T but failed to take this into account or to make proper enquiries thereafter.
This proposed ground does not raise any issue not already raised by the other proposed grounds of appeal.

Conclusion

I am of the opinion that the Tribunal erred in failing, as far as possible, to ascertain the views and wishes of T as required by the Guardianship and Administration Act 1990 s 4(f). I am also of the view that the Tribunal erred in not exercising its discretion, subject to the views of the administrator of T's estate, to obtain independent expert evidence to assist it to determine the issues before it. It appears to me, that this may have in part been caused by the fact that T was not a party to the proceedings and no litigation guardian was appointed for him.
Therefore, I would grant leave to appeal in respect to grounds 1 and 5. The question is whether these matters warrant the appeal being allowed.
The Guardianship and Administration Act s 30(1) states:
(1)Upon the hearing of an appeal, the Court may do one or more of the following ‑
(a)confirm, set aside, or vary the determination of the State Administrative Tribunal and any order made or thing done as a result of the determination;
(b)substitute a determination that could be made under this Act;
(c)remit the case for redetermination by the State Administrative Tribunal, with or without any direction to the Tribunal;
(d)exercise any power that the Court may exercise on an application for certiorari, mandamus, prohibition, or habeas corpus;
(e)make such other order as it thinks fit, including an order as to costs.
I am aware that even if the Tribunal had sought and obtained T's view there would have had to be a judgment as to what weight could be placed on those views. It may be, although I make no final determination to this effect, that not a great deal of weight could be put upon them. I am also aware that even if the Tribunal had obtained expert assistance, its final decision may not have changed.
Nevertheless, I am of the view that the errors that I have found are not mere errors of form. The right of T to be heard and the obligation on the Tribunal to exercise its discretion so as to ensure that it has the best evidence before it so as to comply with its statutory duty to make a decision in T's best interests are matters going to the heart of the Tribunal's discretion. For these reasons I would set aside the decision of the Tribunal and remit the case to it for re‑determination in accordance with these reasons.
In order to assist the Tribunal in that re‑determination, nothing I say in these reasons compels the Tribunal to order or obtain an independent assessment of the circumstances of each applicant if, after further enquiry, it is of the opinion that the cost of such an enquiry would outweigh its benefits or if there is good reason why the cost of such an enquiry could not be met from T's estate.
Further, although I am of the view that the Tribunal ought to take further steps to ascertain T's views and wishes, that does not necessarily mean that those views and wishes will be able to be ascertained.

[2007] WASC 319

21 December 2007