GCR v NSW Trustee and Guardian

[2024] NSWCATAD 130

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GCR v NSW Trustee and Guardian [2024] NSWCATAD 130

Hearing dates:

12 April 2024

Date of orders:

20 May 2024

Decision date:

20 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Bryant, Senior Member

Decision:

Decision of NSW Trustee and Guardian is affirmed.

Catchwords:

ADMINISTRATIVE LAW – review of decision made under NSW Trustee and Guardian Act 2009 – interests and welfare of protected person – decision to decline payment of airfares from UK for granddaughter and two great granddaughters from protected estate to visit protected person in Australia – whether a “gift” under section 76 – whether made in compliance with general principles in NSW Trustee and Guardian Act 2009, section 39 – greater weight to principle 39(e) where high level of family conflict

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 9, 63, 65

Civil and Administrative Tribunal Act 2013 (NSW), s 30

Guardianship Act 1987 (NSW), s 4

Guardianship and Administration Act 2019 (Vic) ss 3(1), 47

NSW Trustee and Guardian Act 2009 (NSW) ss 39, 59, 62, 70, 76

Powers of Attorney Act 2003 (NSW) Schedule 3

Cases Cited:

Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60; [1979] FCA 39

G v G (No. 2) [2020] NSWSC 818

Re PDC [2021] NSWSC 1701

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Texts Cited:

Professor Gino Dal Pont, Powers of Attorney, 2nd Ed 2014

Category:

Principal judgment

Parties:

GCR (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Applicant (self-represented)
R Stormont (NSW Trustee and Guardian) (Respondent)

File Number(s):

2023/00448306

Publication restriction:

Publication of the name of the Applicant (GCR), or the managed person (Mrs X) is prohibited. Note: A reference to 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

The decision to be reviewed

1. This case concerned a decision of the NSW Public Trustee and Guardian (“NSWTG”) to decline to provide funds from the estate (“the managed estate”) of the managed person, who I shall refer to as Mrs X, under a financial management order to pay the return airfares of her granddaughter and two great granddaughters from the UK to visit her in Australia (“the respondent’s decision”).

2. The applicant (“GCR”), who is the daughter of Mrs X, seeks for the NSWTG’s decision to be reviewed by the Tribunal. The granddaughter (“GD”) and two great granddaughters (“GGD1” and “GGD2” respectively) of Mrs X the subject of the respondent’s decision are the daughter and granddaughters of GCR. Mrs X is 103 years old.

The issues

3. The issues to be decided in this case are:

1. Does the NSWTG have the power to provide funds for the airfares from the managed estate?

2. If so, is the decision to decline to provide the funds for the airfares the correct and preferable decision?

4. For the reasons stated below, I have decided that the answer to the first question is yes in part, and that the answer to the second question is yes.

Background

5. The NSWTG was appointed by an order of the Guardian Division of the NSW Civil and Administrative Tribunal to manage the estate of Mrs X on 21 April 2017.

6. In mid-2023 GCR engaged with the NSWTG in relation to the forward budget for Mrs X, at the request of the NSWTG. GCR indicated that Mrs X wants to see GD and GGD1 and GGD2 from the UK in person and wants to pay for their airfares. This was eventually formalised by GCR in writing on 17 September 2023 by way of a written proposal emailed to the NSWTG. Further details of the request, and Mrs X’s wishes in relation to it, are detailed further below.

7. On 20 October 2023 the NSWTG made a decision to decline the request as it was not considered to be in the welfare and interests of Mrs X to approve the proposed use of her funds. This decision was communicated by letter to GCR on 24 October 2023. GCR sought an internal review in a letter to the NSWTG dated 12 November 2023. An internal review was undertaken by the NSWTG’s Director of Legal and Professional Services who affirmed the decision under review. This was communicated to GCR in a letter dated 17 November 2023.

8. The reasons for the respondent’s decision provided to GCR by the NSWTG are summarised below. The references to the Act are references to the provisions of the NSW Trustee and Guardian Act 2009 (NSW) (“the TAG Act”).

1. the request being inconsistent with s 59 purposes. Specifically concerning s 59(3) Mrs X’s granddaughter and great granddaughters are not dependants.

2. s 76 of the Act prescribes the use of the estate for gifts. Whilst Mrs X’s financial circumstances and size of the estate are such that the gift of airfares would be reasonable (s76(2)), the requirement of s 76(1)(a) is not met in relation to a gift to a relative, as it is not of a seasonal nature or a special event.

3. The application of s 39 general principles of the Act were considered:

1. Section 39(d) - the views of Mrs X were taken into account. While Mrs X indicated a strong desire to see her granddaughter and great granddaughters when asked if she would pay the airfares and was advised she had the money to cover this expense she became concerned that this may upset her other children.

2. Section 39(e) - the importance of preserving family relationships. Mrs X expressed concern about the reaction of her other two children and their views were not favourable to the application of funds to payment of airfares. In view of the family conflict, further escalation of tensions should be avoided.

9. On 11 December 2023 GCR lodged an application for administrative review of the respondent’s decision with the Tribunal. The grounds for review cited by GCR include whether the Act has been properly applied (specifically whether the payment of airfares would constitute a gift), that there was a failure to properly consider all relevant information (such as the damage being done to Mrs X’s relationship with GD, GGD1 and GGD2 by the decision), consideration of or undue weight given to irrelevant information, inconsistencies and a lack of transparency in the decision-making process, and inappropriate influence by the NSWTG on Mrs X.

10. The matter proceeded to a hearing before the Tribunal on 12 April 2024.

Jurisdiction

11. Section 9 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), in conjunction with s 30 of the Civil and Administrative Act 2013 (NSW) (“the CAT Act”), confers administrative review jurisdiction on the Tribunal over a decision of an administrator under enabling legislation if the enabling legislation so provides.

12. The reasons provided for the decision under review referred to s 59, s 76 and s 39 of the TAG Act. These sections fall within Chapter 4 of the TAG Act headed “Management functions relating to persons incapable of managing their own affairs”. Section 39 provides general principles appliable to Chapter 4 and are considered further below.

Administrative review of a decision made under section 59

13. The NSWTG’s decisions for the management of the estate under Division 1 of Part 4.5 of the TAG Act, titled “Management of Estates by NSW trustee” are subject to administrative review by the Tribunal under s 62 of the TAG Act. This would include application of money of managed estates under s 59. The NSWTG conceded that GCR, as the daughter of Mrs X, is an affected person within the meaning of section 62(2) of the TAG Act and is therefore able to seek administrative review of the respondent’s decision in this Tribunal.

14. However, there is no power under s 59 for the NSWTG to apply money of the estate of Mrs X towards the return airfares of GD, GGD1 and GGD2 from the UK to visit her in Australia. As referred to above (paragraph 8(1)), Mrs X’s granddaughter and great granddaughters are not dependants and therefore s 59(c) is not applicable. This was not contested by GCR. In GCR’s letter seeking internal review she stated (among other things) that the NSWTG “has unilaterally considered the application under s 59. It was never requested to consider the matter under that section.” The NSWTG’s internal review letter dated 17 November 2023 states “the decision maker included reference to s 59 because this section is raised by staff or those requesting gifts as an alternate or support to s 76.”

15. There is no decision under s 59 the subject of administrative review. Accordingly, this aspect of the matter does not need to be considered further for the purposes of these proceedings.

Administrative review of a decision made under section 76

16. Part 4.5 of the TAG Act has two other divisions: Division 2 “Management of estates by other persons” and Division 3 “Management of estates generally”. Section 76 is part of Division 3. Section 70(1) of the TAG Act allows for administrative review of a decision of the NSWTG under Part 4.5 “in relation to the functions of a person appointed as manager”, which includes the NSWTG where it has been appointed “manager” of an estate (as per the definition of “manager” in section 38). Those who may apply for administrative review under s 70(1) include:

(a) the person appointed as manager,

(b) any other person who, in the opinion of the Civil and Administrative Tribunal, has a genuine interest in the matter to which the NSW Trustee’s decision relates.

17. Even though s 76 was referred to by both parties in relation to the decision under review, I was not referred to section 70 by either of them. Section 70 provides the means for the administrative review jurisdiction of this Tribunal to be enlivened for a decision under s 76. I am satisfied that GCR, as the daughter of Mrs X, has a genuine interest in the matter to which the NSWTG’s decision relates, and is therefore able to seek administrative review of the respondent’s decision in this Tribunal under section 70.

The role of the Tribunal

18. Section 63(1) of the ADR Act prescribes the role of the Tribunal in determining an application for administrative review. Its role is:

“…to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.”

19. Pursuant to s 63(2) of the ADR Act, the Tribunal may exercise all functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

20. The Tribunal's determination is undertaken at the time the relevant issues come to be decided by it rather than the time at which that decision under review itself was made (Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J), Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [35]).

21. Section 63(3) of the ADR Act sets out the possible outcomes following an administrative review by the Tribunal including:

1. to affirm the decision; or

2. to vary it; or

3. to set the decision aside and make a decision in substitution for it; or

4. to set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations made by the Tribunal.

22. The Tribunal may decide to remit the decision to the administrator who made it for reconsideration of the decision by the administrator if it so chooses (s 65(1) of the ADR Act).

Documentation and submissions

23. GCR relied upon extensive documentation that was filed over the course of the proceedings. In addition to the decision under review and application for administrative review, GCR’s written material consisted of:

1. A letter to the NSWTG with attachments in relation to the respondent’s decision received as Exhibit ‘A-1’.

2. Submissions to the Tribunal for a directions hearing on 30 January 2024 and attachments received as Exhibit ‘A-2’.

3. A large compendium of material (147 pages) including 15 videos on a USB received as Exhibit ‘A-3’.

4. Submissions to the Tribunal for hearing and attachments with video and audio recording on a USB, received as Exhibit ‘A-4’.

5. An email to the NSWTG regarding Mrs X’s home care package dated 28 September 2017 received as Exhibit ‘A-5’.

6. A 1-page table listing references to various parts of the material filed that GCR wanted to draw to the Tribunal’s attention, received as Exhibit ‘A-6’.

24. The NSWTG relied upon the material required to be filed under section 58 of the ADR Act (Exhibit ‘R-1’) and written submissions (Exhibit ‘R-2’).

25. GCR and the representative for the NSWTG each made oral submissions at the hearing. No witnesses were required by either of the parties for cross-examination.

26. I considered all of the material and the parties’ submissions.

Preliminary issues

27. GCR stated in oral and written submissions that she was bringing the application on behalf of Mrs X and that Mrs X is in fact the proponent for the request to pay the airfares, supported by GCR and the manager of the residential care provider where Mrs X resides. However, Mrs X was not named as the applicant in these proceedings, nor was she represented in the proceedings. I took GCR’s submission to be to the effect that she had the support of Mrs X for the airfares to be paid from her estate. This was contested by the NSWTG. I consider Mrs X’s wishes in relation to the matter further below as part of the s 39 principles.

28. GCR raised the issue of whether the payment for the airfares would constitute a gift at all, because in GCR’s assertion it is a payment that Mrs X wants to make for her own benefit. I did not find this argument persuasive, nor was I referred to any other part of the TAG Act that would permit the payment from the estate to be made in such circumstances.

29. The NSWTG submitted that the fact that funds are being requested for the benefit of paying airfares for persons other than the person making the payment makes the expenditure a gift to the persons receiving the benefit of the monies/flight, in this instance being the granddaughter and two great granddaughters of Mrs X. I agree with this submission.

30. It is important to recognise that the NSWTG must exercise its functions in the management of the estate of Mrs X in accordance with the TAG Act. The correct course for a manager who seeks authority to make a gift on behalf of the person whose estate is under protective management is to conform to the requirements of s 76 of the TAG Act (G v G (No. 2) [2020] NSWSC 818 at [49]).

The parties’ respective cases

31. In summary, GCR’s case, as I understand it, is that the respondent’s decision to decline to provide funds from Mrs X’s estate to pay the return airfares of GD, GGD1 and GGD2 from the UK to visit her in Australia was not the correct and preferable decision because:

1. Mrs X supports the payment of the airfares from her estate and is in fact the proponent for the request to pay the airfares. Mrs X is close to GD, GGD1 and GGD2 despite them living in the UK and wants to see them in person.

2. The payment of the airfares for Mrs X’s granddaughter and two great granddaughters to visit her would bring her much joy and allow for her to belatedly celebrate her 100th birthday with them which had been prevented because of COVID restrictions in 2020. The proposed timing of the trip between December 2023 and January 2024 when the request was under consideration would also coincide with the Christmas season and allow for Mrs X’s granddaughter and great granddaughters to visit her for Christmas.

3. Mrs X has helped family members in need throughout her life including paying airfares and other gifts for other great and great-great-grandchildren in the past. The fact she has not provided airfares for these specific relatives in the past does not mean that she would not do so.

4. The NSWTG has not considered all the relevant information, has accorded undue weight to the views of GCR’s siblings, who do not support the payment of the airfares, and has not complied with its own Decision Making Policy and Customer Excellence Principles. Mrs X’s human rights are being ignored as well as her dignity, choices and wishes as a result.

32. The NSWTG’s case in response, in summary, is that the decision was the correct and preferable decision in all the circumstances because:

1. The NSWTG does not have the power to make the payment because the requirements of s 76 are not met.

2. It was not customary for Mrs X to make such payments for GD, GGD1 and GGD2 when she had the capacity to do so.

3. Little evidence has been provided to the Tribunal that Mrs X has paid airfares and other gifts for other grandchildren and great-grandchildren in the past.

4. The requested payment is not properly characterised as a gift for a special occasion, being the belated 100 birthday Mrs X, because GD, GGD1 and GGD2 had already arranged to visit Mrs X at their own expense for her 100th birthday in 2020. There was no evidence that Mrs X had considered or offered to pay for their 2020 trip (or for transport for any other relatives to be present to celebrate her 100th birthday) or that attempts were made to request the funds as a gift from the funds held by NSWTG for Mrs X at that time.

33. Both parties referred to the s 39 principles in support of their respective cases. The section 39 principles are dealt with below.

34. The NSWTG informed the Tribunal that the correct avenue for GCR to press her claim is to apply to the Supreme Court of NSW for an order to consider releasing funds from the estate of Mrs X. GCR argued that the time and costs of taking the matter to the Supreme Court of NSW is disproportionate to the time-sensitive nature of the request and the size of the gift.

Is the payment for the airfares properly considered to be a gift under section 76 of the TAG Act?

35. Section 76 of the TAG Act states:

76 Gifts

(1) A manager may use property of the estate of a managed person for the following gifts-

(a) a gift to a relative or close friend of the managed person that is of a seasonal nature or is given because of a special event (such as a birthday or marriage),

(b) a donation of a nature that the managed person made when the managed person had capacity to do so or that the managed person might reasonably be expected to make.

(2) A manager may make a gift under this section only if the value of the gift is not more than what is reasonable having regard to all the circumstances and, in particular, the managed person's financial circumstances and the size of the managed person's estate.

36. Clause 76 of the Explanatory Note, NSW Trustee and Guardian Bill 2009 (NSW) stated that the provision enables the NSWTG or other manager of the estate of a managed person to use property of the estate for gifts to relatives or close friends of a seasonal nature or for a special event or for donations of a nature that the managed person made or would reasonably be expected to make. A gift must be of an amount that is reasonable in the circumstances, including having regard to the size of the estate.

37. Section 76 provides that a manager may use the property of the managed estate to make a gift under s 76(1)(a) or s 76(1)(b), subject to the requirements of s 76(2) being met. There was some contention between GCR and the NSWTG as to whether the airfares could constitute a gift under s 76(1)(a) or s 76(1)(b). GCR submitted, in effect, that either of the subsections would support the airfares to be paid from the estate Mrs X. The NSWTG disagreed.

Section 76(1)(a) a gift to a relative or close friend of the managed person that is of a seasonal nature or is given because of a special event (such as a birthday or marriage)

38. The internal review decision undertaken by the Director of Legal and Professional Services of the NSWTG included in the s 58 documents (Exhibit ‘R-1’) considered the issues in some detail. The internal reviewer quoted the Hon John Hatzistergos, then Attorney General and Minister for Industrial Relations in the second reading speech before NSW Parliament on moving the NSW Trustee and Guardian 2009 Bill, which referred to s 76 in the following terms:

The bill also provides a power for the New South Wales Trustee and Guardian or a private manager to buy gifts of a small monetary value for family members for personal or cultural reasons… The powers will be analogous to those available to an attorney under schedule 3 of the Powers of Attorney Act 2003, which include a prescribed form of authority for the giving of gifts. The gift must be to a relative or close friend of the protected person; be of a seasonable nature or because of a special event, for example, a birth or a marriage; or a donation of the nature that the protected person made when he or she had the capacity or might reasonably have been expected to make; and the gift's value must not be more than what is reasonable having regard to all the circumstances and the size of the protected person's estate. Legislation authorising financial managers to make suitable gifts already exists in Queensland, Victoria, Tasmania and Western Australia.

39. This is important context for the statutory interpretation of s 76 and provides a basis for considering similar legislative provisions in other legislation such as the Powers of Attorney Act 2003 (NSW).

Relative or close friend

40. The terms “relative” and “close friend” in s 76(1)(a) are not defined in the TAG Act. The Powers of Attorney Act 2003 (NSW) (Schedule 3, Prescribed expressions and authorisations for prescribed powers of attorney, 1. Authority to give gifts) and the Guardianship and Administration Act 2019 (Vic) (s 47) have similar provisions to s 76. Both define the term “relative” to extend to “grandchild” but not to great grandchild of the principal or managed person. It is not clear that the statutory intention of the word “relative” in s 76(1) would extend to great grandchildren. Nevertheless, it follows that the gift of the airfares to GD, as the granddaughter of Mrs X, may be permitted under s 76(1)(a) as she is a relative of Mrs X within the meaning of the term in 76(1)(a).

41. Noting the above limitation of the term “relative”, GCR stated in her submissions that GGD1 and GGD2 are close to Mrs X and therefore they should be considered to be her “close friends” under s 76(1)(a). The Powers of Attorney Act 2003 (NSW) (Schedule 3, Prescribed expressions and authorisations for prescribed powers of attorney, 1. Authority to give gifts) defines the term “close friend” to mean “another individual who has a close personal relationship with the principal and a personal interest in the principal’s welfare.” The Guardianship and Administration Act 2019 (Vic) includes the same definition in its legislative context (s 3(1)).

42. GCR provided material to the Tribunal relevant to the extent of the relationship between Mrs X and GD and GGD1 and GGD2 even though they live in the UK. This included 15 videos on a USB (Exhibit ‘A-3’) and a further video, recording of a conversation (Exhibit ‘A-4’) and letter from her GD dated 17 March 2024 provided for the consideration of the Tribunal (Exhibit ‘A-4’). The letter states that Mrs X has met them in person previously. The last time Mrs X met her GD and the youngest of the two great granddaughters (GGD2) in person was in July 2018. Mrs X last saw the eldest of the two great granddaughters (GGD1) in person in 2016. The videos consist of Mrs X’s reactions to video messages from GGD1 and GGD2, a recording of an online video conversation between Mrs X and GD on 24 August 2016, a recording of a video conversation between Mrs X and GGD2 on 12 March 2023 (albeit with sound issues), and recordings of various recent conversations between GCR and Mrs X about GD, GGD1 and GGD2 and whether she wants them to come to visit her in Australia. GCR submitted that Mrs X has seen GD, GGD1 and GGD2 via online means during GCR’s regular visits with Mrs X, and also via direct WhatsApp calls when that has been available through the residential care provider. It is difficult to assess the closeness of the relationship between Mrs X and GGD1 and GGD2 in the videos as they do not show direct interactions between them. Despite the limitations of such material in assessing the relationship between them, I would describe Mrs X’s attitude towards them as being one of warmth, closeness and affection. However, there is insufficient evidence before the Tribunal for me to be satisfied that they should be considered to be “close friends” of Mrs X. Accordingly, I am not able to make such a finding.

43. I consider that the gift of the airfares to GD may be permitted under s 76(1)(a) as she is a relative of Mrs X.

44. It follows from the above reasons that the gift of the airfares to GGD1 and GGD2 does not fall for consideration under s 76(1)(a).

‘Of a seasonal nature or is given because of a special event (such as a birthday or marriage)’

45. Although the term “seasonal nature” in s 76(1)(b) is not defined in the TAG Act, the term “special event” specifically includes a birthday or marriage as examples (s 76(1)(b)). The internal review decision undertaken by the Director of Legal and Professional Services of the NSWTG included in the s 58 documents (Exhibit ‘R-1’) provided helpful assistance, which I quote from here:

Section 76 is based on similar wording used in the Powers of Attorney Act 2003. It has been said by Professor Gino Dal Pont in his text on Powers of Attorney 2nd Ed 2014 that examples of celebration gifts (gifts of a seasonal nature) would be: a birthday, Easter, Hanukah, Christmas and examples of special events would include: birth, marriage, graduation and anniversary of a birth, a marriage or formation of a civil partnership.

It has been suggested that “seasonal basis” denotes a temporal basis – something which occurs regularly – birthdays, anniversaries, religious or cultural annual events. Equally “special event” should take the normal usage of the word and be taken to mean a significant life event – such as a marriage/civil partnership, births, graduations.

A birthday celebration, especially for attaining the age of 100, and a Christmas celebration are seasonal or special events.

46. Although the NSWTG took the position that the payment for the airfares should not be characterised as a gift for a special occasion (see paragraph 32(4) above), I accept GCR’s submission that the gift of the airfares would be given because of a special event, being belated celebrations for Mrs X’s 100th birthday in Australia with GD, GGD1 and GD2 from the UK.

Section 76(1)(b) a donation of a nature that the managed person made when the managed person had capacity to do so or that the managed person might reasonably be expected to make

47. GCR made submissions that Mrs X had paid for her other daughter and one of her great granddaughters and her two children (Mrs X’s great-great-grandchildren) to travel to Fiji for a holiday from 21 July 2015 to 28 July 2015. This was before the financial management order was made. GCR submitted that Mrs X did not go on this trip and received no benefit for herself from this trip. GCR referred the Tribunal to a recorded conversation between GCR and Mrs X (Exhibit ‘A-4’) in which Mrs X says that she “would have” provided funds from the sale of a Hervey Bay property for this purpose. I was not provided with receipts or further information about the trip, and the surrounding circumstances.

48. I do not consider there to be sufficient evidence provided to the Tribunal to find that the payment of the airfares under consideration are a donation of a nature that Mrs X made when she had capacity to do so or that Mrs X might reasonably be expected to make.

Section 76(2)

49. Although the NSWTG ultimately took the position that it did not have the power to make the gift, the NSWTG accepted that the cost of the gift was reasonable in the reasons given for its decision. Having reviewed the information in the section 58 documents about the size of the estate, I agree that the value of the gift is reasonable in all of the circumstances. The highest figure on the documents before me in relation to the total cost of the airfares for GD, GGD1 and GGD2 is $17,719. In this case the gift would represent less than 0.6% of the estate.

Conclusion in relation to s 76

50. For the reasons stated above I find that the NSWTG does not have the power to provide funds for the airfares of GDD1 and GDD2 from the managed estate under the gifting provisions in section 76 of the TAG Act.

51. I find that the NSWTG has the power to provide funds for the airfares of GD from the managed estate under the gifting provisions in section 76 of the TAG Act. However, for the reasons stated below I affirm the NSWTG’s decision not to do so.

Is the decision the correct and preferable decision?

52. As previously stated, the question I am required to answer is whether the decision under administrative review is the correct and preferable decision (s 63(1) ADR Act). In determining this question, the Tribunal is to have regard to the material before it, including any relevant factual material and any applicable written or unwritten law. The Tribunal may exercise all functions conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) ADR Act).

53. Section 39 of the TAG Act imposes a duty to observe specified principles on everyone exercising functions under Chapter 4 (Re PDC [2021] NSWSC 1701 at [67]). This includes s 76.

54. The Tribunal is therefore required to consider the section 39 principles in conducting its administrative review in this case.

The section 39 principles

55. Section 39 states:

39 General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles—

(a) the welfare and interests of such persons should be given paramount consideration,

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation.

56. Mrs X was and is a protected person under s 39.

57. The NSWTG specifically referred to principles 39(d) and 39(e) in the reasons for its decision. Although it may have been instructive for the NSWTG to address each of the s 39 principles in the reasons for its decision, it is not required to do so. The failure to do so does not mean that the s 39 principles were not appropriately considered by the NSWTG in making its decision.

58. The Tribunal was provided with detailed submissions from GCR concerning the various s 39 principles. GCR submitted, in summary, that Mrs X’s welfare would be improved by GD, GGD1 and GGD2 visiting her, that Mrs X’s wishes to see them are being unduly restricted by the opinions of her other children, that Mrs X seeing them would preserve family relationships, that the respondent has discouraged Mrs X from being self-reliant in relation to the matter by suggesting that she could upset other family members through her wishes, and that the respondent is encouraging and facilitating abuse to prioritise the opinions of her other children. GCR also said that the respondent had exercised inappropriate influence on Mrs X by the way it has approached the matter.

59. GCR provided the Tribunal with 8 recent videos of Mrs X between 15 November 2023 and 4 March 2024 expressing her strong desire to see GD, GGD1 and GGD2. I accept GCR’s submission that Mrs X strongly desires for GD, GGD1 and GGD2 to visit her.

60. Both of the parties in oral submissions referred me to one of the videos, from 25 December 2023. The video shows a conversation between GCR and Mrs X about which family members Mrs X has seen on Christmas Day. I have transcribed parts of the conversation below:

GCR:      “You didn’t see GD, GGD1 and GGD2.”

Mrs X:      “Well I couldn’t go over there.”

GCR:   “You wanted them to come to you. You wanted to pay their airfares so you could see them mum.”

Mrs X   “Right.”

GCR:   “Do you remember that?”

Mrs X:   “Yes I do.”

GCR:   “But do you know [here GCR referred to her two siblings by their first names] said no, you can’t do it? They stopped it.”

Mrs X:      “Oh I didn’t know.”

GCR:      “How do you feel about that?”

Mrs X:      “That’s not very nice. It’s up to me.”

GCR:   “So if they didn’t come for Christmas would you like them to come another time?”

Mrs X:   “Yes, for Easter.”

…

GCR:   “If [here GCR referred to her two siblings by their first names] are upset about the fact that you want to pay for [GD, GGD1 and GGD2] what do you want more, do want to see them or do you want them to stop you from seeing them?”

Mrs X:   “I want to see them.”

61. GCR provided another video dated 17 January 2024 where Mrs X also suggests, after prompting from GCR, that she would pay for GD, GGD1 and GGD2 to travel to visit her. GCR submits that there are other times when Mrs X has stated this in 2023. In submissions GCR has referred to a video, also provided to the Tribunal, of Mrs X saying on 6 March 2024 that she "won't tell [GCR's siblings]" she wants to bring GD, GGD1 and GGD2 out from UK so she can be with them because it is "none of their business".

62. The NSWTG confirmed that (relevant to principle 39(d)), when Mrs X was asked if she would pay the airfares and was advised she had the money to cover this expense she became concerned that this may upset her other children. If this is the case - and upon reviewing the section 58 documents (Exhibit ‘R-1’), specifically the 6 paged File Note of the NSWTG Senior Client Service Officer dated 13 October 2023, I accept that it is - then it is likely that Mrs X would not show her concern about this in conversations regarding the matter with her daughter GCR, so as not to upset her either. The recorded conversations referred to above between Mrs X and GCR are therefore of limited probative value. In my view, Mrs X stating that she "won't tell [GCR's siblings]" could be interpreted several ways, and not necessarily in favour of GCR's case. In these circumstances there is considerable uncertainty as to the true views of Mrs X in relation to whether she supports the payment of the airfares being made from the estate. The Tribunal was unable to resolve this uncertainty of the basis on the evidence available to it.

63. The NSWTG maintains (relevant to principle 39(e)) that Mrs X expressed concern about the reaction of her other two children and their views were not favourable to the application of funds to payment of airfares. The NSWTG stated that in view of the family conflict, further escalation of tensions should be avoided.

64. In oral submissions at the hearing the representative for the NSWTG, Ms Stormont, pointed out that GCR’s comments to Mrs X in the video on 25 December 2023 referring to her siblings having “stopped” the requested payment was disparaging of them and illustrative of the significant family conflict present in this case. Ms Stormont informed the Tribunal that the NSWTG gave greater weight to principle 39(e) due to family conflict, acting in the best interests of the protected person. Ms Stormont stated in effect that there is no way everyone would be happy and if the NSWTG gave the gift requested then most likely they would be here before the Tribunal with the other siblings.

65. GCR submitted that the NSWTG misrepresented the request for the payment of the airfares as being from GCR (rather than Mrs X) which has served to increase family conflict, contrary to principle 39(e). GCR stated that it was not appropriate for the respondent to seek the views of her siblings in such a context. However, as Ms Stormont pointed out in oral submissions, the consultation requirements in s 72 of the TAG Act meant that it was incumbent for the NSWTG to do so.

66. It is clear from the material in these proceedings (as seen for example in Exhibit ‘R-1’) that a high level of conflict between Mrs X's children (GCR and her brother and sister) was a significant factor leading to the Guardianship Division of the Tribunal appointing the NSWTG to manage the estate of Mrs X in 2017. It appears that the conflict has continued since that time. GCR referred to the relationship she has with her siblings as being “toxic”, and that the NSWTG is “well aware” of this. It is unfortunate that GCR and her siblings are unlikely to ever be in agreement concerning issues involving their mother. In such circumstances it is particularly important for a financial manager on behalf of Ms X to seek to carefully balance competing views about the management of her estate in a manner that preserves family relationships. I agree that for the welfare of Mrs X further escalation of tensions should be avoided.

67. I did not find GCR’s submissions that that the respondent had exercised inappropriate influence on Mrs X by the way it had approached the matter to be persuasive. The NSWTG is required to consult GCR’s siblings. Taking their views into account does not mean that Mrs X’s wishes to see GD, GGD1 and GGD2 are being unduly restricted. The NSWTG noting Mrs X’s expressed concern that that the payment may upset her other children does not mean that the respondent has discouraged Mrs X from being self-reliant in relation to the matter. I do not accept GCR’s submission that the respondent has encouraged and facilitated abuse by taking into account of the opinions of her other children. The decision is not to be made by GCR’s brother or sister. The decision is not to be made by GCR. The decision is to be made by the administrator under the TAG Act, after taking into account the matters required by the s 39 principles and the ultimate welfare and interests of Mrs X.

68. I do not accept GCR’s submissions that the NSWTG has acted inconsistently with the section 39 principles.

Decision

69. I have considered each of the s 39 principles under the TAG Act and the matters required by s 63(1) of the ADR Act.

70. I have carefully considered Mrs X’s strong desire for GD, GGD1 and GGD2 to visit her and the benefits to Mrs X of them doing so.

71. I accept that when Mrs X was asked if she would pay the airfares and was advised she had the money to cover this expense she became concerned that this may upset her other children.

72. I am satisfied that the reaction of her other two children and their views were not favourable to the application of funds from the managed estate to the payment of the airfares.

73. I have considered GCR’s views and her strong support of Mrs X’s wishes for GD, GGD1 and GGD2 to visit her.

74. I am unable to be satisfied as to the true views of Mrs X in relation to whether she supports the payment of the airfares being made from the managed estate in the light of the family tensions.

75. In the circumstances of the case, it is reasonable and appropriate to give greater weight to certain s 39 principles, in particular, paragraph (e), due to family conflict, in order to act in the best interests of the protected person.

76. In my view, for the welfare of Mrs X, further escalation of family tensions should be avoided.

77. I find that the correct and preferable decision is to decline to provide the funds for the airfares from the managed estate.

78. It follows that I must affirm the respondent’s decision under section 63(3) of the ADR Act. I do so. I make the order which follows.

Orders

79. Decision of the NSW Trustee and Guardian 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

Amendments

22 May 2024 - Paragraph 36 corrected – “Section 76” replaced with “Clause 76 of the Explanatory Note, NSW Trustee and Guardian Bill 2009 (NSW) stated that the provision”.

Decision last updated: 22 May 2024