GKC - [2022] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GKC [2022] NSWCATGD 23
Hearing dates: 20 July 2022
Date of orders: 20 July 2022
Decision date: 20 July 2022
Jurisdiction: Guardianship Division
Before: S Barnes, Senior Member (Legal)
M J Staples, Senior Member (Professional)
P J McGirr, General Member (Community)
Decision:
Guardianship
1. A guardianship order is made for GKC.
2. The Public Guardian is appointed as the guardian.
3. This is a continuing guardianship order for a period of one year from [The date that GKC turns 18].
4. This is a limited guardianship order giving the guardian(s) custody of GKC to the extent necessary to carry out the functions below.
FUNCTIONS:
5. The guardian has the following functions:
a) Access
To decide what access GKC has to others and the conditions of access.
b) Accommodation
To decide where GKC may reside.
c) Health care
To decide what health care GKC may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where GKC is not capable of giving a valid consent.
e) Services
To make decisions about services to be provided to GKC.
CONDITIONS:
6. The conditions of this order are:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring GKC to an understanding of the issues and to obtain and consider his views before making significant decisions.
7. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].
Financial Management
1. The estate of GKC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
2. The management of the estate of GKC is committed to the NSW Trustee and Guardian.
3. This order be reviewed by the Tribunal within two years.
4. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].

Catchwords:
JURISDICTION – where the subject person is under the care of the NSW Minister for Families, Communities and Disability Services – whether jurisdiction affected by orders made by the Children’s Court – care orders in effect until the subject person turns 18 – finding that the jurisdiction of the Tribunal is not affected
GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made, and what order should be made – 17-year-old subject person with severe autism spectrum disorder – subject person in out-of-home care – finding that the subject person is partially incapable of managing his person – need for decisions to be made in relation to accommodation, health care, medical and dental consents, services and access – high level of family conflict – proposed guardians not suitable to be appointed – Public Guardian appointed – order made – order to take effect when the subject person turns 18 – s 61 of the Civil and Administrative Tribunal Act – order to be reviewed in 12 months
FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – complex funding needs after the subject person turns 18 – subject person in need of support to manage his financial affairs – order made – order to take effect when the subject person turns 18 – proposed financial managers not suitable to be appointed – NSW Trustee and Guardian appointed – order to be reviewed in two years

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 23(b), 44, 79, 79(1)(b), 79(A), 83
Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 51, 55, 61
Guardianship Act 1987 (NSW), ss 3(1)-(2), 3(2)(a)-(d), 4, 8, 9, 9(1)(d), 14(1), 15, 15(3), 16(3), 17, 17(1), 17(1)(a)-(c), 25I(1)(b), 25K, Pt 3
Mental Health Act 2007 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
CJ v AKJ [2015] NSWSC 498
GR v The Department of Communities and Justice [2021] NSWSC 1081
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
McD v McD (1983) 3 NSWLR 81
P v D1 & Ors [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579 and F v NSW Trustee and Guardian [2017] NSWSC 131
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re B [2011] NSWSC 1075
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Financial Management Application

GKC (the person)
BZF (applicant)
NSW Trustee and Guardian

002: Guardianship Application
GKC (the person)
BZF (applicant)
Public Guardian
Representation:
T Mihell, Crown Solicitor’s Office, solicitor for the applicant
P Beaumont, solicitor, separate representative for GKC

File Number(s): NCAT 2022/00106202
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

GUARDIANSHIP AND FINANCIAL MANAGEMENT APPLICATIONS

What the Tribunal decided

The Tribunal decided to make a guardianship order and a financial management order in relation to GKC as set out above.
These decisions are to take effect on [The date that GKC turns 18]: see s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act).

Background

GKC is 17 years old. He was first assumed into the care of the Minister for Families, Communities and Disability Services (the Minister) in June 2018. Under current orders, until GKC attains the age of 18 all aspects of parental responsibility are allocated to the Minister. GKC turns 18 on [Date removed for publication].
Since April 2020, GKC’s care has been managed by Metro Intensive Support Services (Metro ISS), a specialist out-of-home care team within the Department of Communities and Justice (DCJ) which works with children who have complex and challenging needs. GKC has been living in a residential placement managed by a disability service provider since mid-2020.
GKC has been diagnosed with Autism Spectrum Disorder (social communication support level 2, behaviour support level 3) with, on some diagnoses, associated selective mutism and avoidant restrictive food intake disorder. GKC’s parents are reported to be separated or divorced. His mother Ms Z, lives in regional NSW. His father Mr Y, lives in Queensland. For ease of reference GKC’s parents are referred to as the mother and the father respectively.
In anticipation of GKC turning 18 in [Date removed for publication], BZF, a Metro case manager, lodged guardianship and financial management applications with the Tribunal. She proposed the appointment of the Public Guardian as guardian and the NSW Trustee and Guardian as financial manager for GKC. Those applications are the subject of these reasons for decision.
The Tribunal (differently constituted) made several directions and pre-hearing orders in these matters, including allowing the applicant to be legally represented, refusing a request by each of GKC’s parents to be joined as a party to these proceedings and refusing an application by the mother to set aside those orders. The mother has also lodged separate applications seeking that she be appointed guardian and financial manager for GKC. The Tribunal (differently constituted) ordered that the mother’s proceedings should not be joined to the proceedings the subject of these reasons.
Hence, the mother’s applications were not before the presently constituted Tribunal. However both the mother and the father lodged documentary evidence and gave oral evidence in the present proceedings which we have taken into account in so far as relevant. As discussed below, we considered their proposals in relation to who should be appointed guardian and financial manager for GKC.
Pre-hearing, the Tribunal had also ordered that GKC be separately represented. Pearl Beaumont, solicitor, was appointed and appeared as separate representative for GKC.

The Hearing

The hearing was conducted in person and by video and telephone link. GKC participated by video link. He chose to type or write his responses to our questions and those responses were read out by Ms Beaumont. We were satisfied that he had a reasonable opportunity to participate in the hearing and to express his views.
GKC’s mother and father participated in the hearing as witnesses, by telephone and in person respectively. Mr X, the mother’s uncle (whom she proposed as a joint guardian and financial manager), joined the hearing by video link from London and gave brief evidence. The mother also had two supporters present by video or telephone during the hearing (Ms W and Ms V). They did not give any evidence.
In addition to the applicant and the legal representatives, Ms U from DCJ, participated in the hearing. We also had the benefit of oral evidence from two support workers in GKC’s accommodation, Mr T and Ms S. Ms R, liaison officer with the Public Guardian’s office, also participated in the hearing.

GKC’s Care History and Court Orders

Before turning to the matters which had to be decided by the Tribunal in relation to BZF’s applications, it is convenient to outline GKC’s reported care history. We relied in this respect on the written submissions and supporting evidence from the applicant and also had regard to material lodged and referred to by the parents.
This outline does not purport to be a comprehensive account and we note that the mother disputes much of what was reported. She repeatedly characterised the taking of GKC into the care of the Minister as GKC having been ‘stolen’ by Family and Community Services (FACS).
GKC was born on [Date removed for publication]. Behavioural difficulties were reported early in his life, and he was diagnosed with autism spectrum disorder at about the age of four. He was then the subject of various psychiatric and psychological reports. DCJ became involved with the family following reported concerns that GKC’s mother (who at that time was a registered medical practitioner) was prescribing and giving him anti-psychotic drugs and allegations of medical neglect, exposure to domestic violence and family violence in the home. Concerns also emerged about GKC’s physical condition, particularly his declining weight.
The Secretary of DCJ initially assumed care responsibility for GKC in June 2018 pursuant to s 44 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act).
On 5 July 2018 the Children’s Court made interim orders which included allocating parental responsibility for GKC to the Minister. However, after an August 2018 dispute resolution conference, it was agreed that GKC should live with his parents but be placed under the supervision of the Minister for 12 months on the basis of undertakings given by his parents.
It was reported that GKC’s parents were unable to fulfil their undertakings (including meaningful engagement with the National Disability Insurance Scheme (NDIS) and permitting case workers and service providers to access the home to undertake assessment or to provide therapeutic interventions to address GKC’s disability needs). There were also allegations of violence in the household, including on the part of GKC and reported concerns arising from GKC’s health and the capacity of his parents to care for him adequately. The Secretary of DCJ sought recission of the August 2018 agreed orders.
On 27 February 2019 the Children’s Court made further interim orders allocating all aspects of parental responsibility for GKC to the Minister.
Between February 2019 and April 2020 GKC was a hospital inpatient, initially at a public hospital in regional NSW. He was transferred to a children’s hospital in Sydney in November 2019 under the care of the eating disorders team. He was discharged into his long-term residential placement in April 2020 but was readmitted to hospital after his oral food intake decreased. Following treatment GKC was discharged into the care of his disability service provider carers on 25 May 2020. He was readmitted to hospital on 26 May 2020 after failing to eat. He was discharged on 1 June 2020.
It is reported that since that time GKC has gained weight, made some progress with supports in his accommodation and no longer requires medication. He remains in a community placement with the disability service provider. There are restrictions in place in relation to visitation rights for his parents. These were said to reflect concerns that such contact was impacting GKC’s progress negatively. According to material lodged in support of the application, GKC’s contact with his mother has been suspended, reportedly because of concerns related to her impact on his health and psychological well-being, but GKC has regular facetime calls with his father, who has also visited him from Queensland.
After numerous legal proceedings in the Children’s Court and the Supreme Court, on 3 April 2020 the President of the Children’s Court of NSW, Judge Johnstone, made final orders under s 79(1)(b) of the Care Act allocating all aspects of parental responsibility for GKC to the Minister.
The mother appealed to the Supreme Court. She sought that the decision of the Children’s Court should be set aside and GKC returned to her care. The appeal, which was by way of a rehearing, was dismissed by Sackar J on 27 August 2021 (see GR v The Department of Communities and Justice [2021] NSWSC 1081).
Sackar J was not satisfied that there was anything in the evidence that warranted a departure from the orders of the Children’s Court and was of the view that it was in GKC’s best interests that he remain in his current placement until he turned 18 (GR at [863]). His Honour rejected the mother’s submission that GKC should be returned to her care with the support of NDIS services and private carers and given supervised contact with his father (at [864]) and did not believe that there was a realistic possibility of restoration of GKC to his parents within a reasonable period (see GR at [865] and s 83 of the Care Act).
His Honour confirmed the decision of the Children’s Court, concluding (at [869]) that all aspects of parental responsibility for GKC should remain allocated to the Minister until GKC attains 18 years of age. This order was in effect at the time of the Tribunal decision.
The mother appealed to the NSW Court of Appeal. She advised the Tribunal that after a hearing on 14-15 June 2022, judgment was reserved by the Court of Appeal. She also told us that she had sought recission of the Children’s Court orders in separate proceedings and commenced other proceedings in the Supreme Court.

Procedural matters

Despite not being a party to the present proceedings, the mother variously sought that the proceedings should be adjourned, stayed or dismissed until after the Court of Appeal delivers judgment or more generally.
There are restrictions on the Tribunal’s power to make guardianship orders in relation to a person who is the subject of an order made by the Supreme Court in the exercise of its jurisdiction with respect to the guardianship of persons or the subject of an order made under s 79(A) of the Care Act by the Children’s Court: see s 15 of the Guardianship Act 1987 (NSW) (the Act). Further, under s 25K of the Act, the Tribunal does not have jurisdiction to make a financial management order in respect of a person (other than an interim order) if the question of the person’s capability to manage his or her own financial affairs is before the Supreme Court or if an order under the NSW Trustee and Guardian Act 2009 (NSW) or the Mental Health Act 2007 (NSW) is in force in respect of any part of the person’s estate.
In the present proceedings the applicant did not seek any orders which would be in effect before GKC turns 18. The solicitor for the applicant saw no jurisdictional limit on our power to make the orders sought.
We were satisfied that if the Tribunal decision in relation to GKC did not take effect before his 18th birthday (as provided for in s 61 of the CAT Act) there would be no overlap or potential conflict between the orders we might make and the present orders under s 79 of the Care Act which confer parental responsibility on the Minister only until GKC attains 18 years of age. Nor would there be any inconsistency or overlap with orders which the Court of Appeal might make in that respect, or, indeed, if the mother were to succeed in her application to the Children’s Court for rescission of the orders under s 79 of the Care Act.
When we discussed this at the hearing, the mother referred to the fact that in her Further Amended Notice of Appeal she not only sought to have the Supreme Court and Children’s Court orders set aside by the Court of Appeal but also that the Court ‘restore [GKC] to his own home in [her] sole care, legal and financial guardianship’. In addition, she has asked the Court of Appeal to restrain the Secretary and the Minister from taking any application to NCAT ‘for legal and financial guardianship of [GKC] until age 25’. She suggested that the Court of Appeal could make the orders she sought and give her guardianship and financial management responsibility in relation to GKC after he turns 18 and hence that we should adjourn or dismiss the proceedings.
The orders of the Children’s Court that were confirmed in GR concern parental responsibility until GKC turns 18. Those orders were made under s 79 of the Care Act which deals with orders (other than guardianship orders) allocating parental responsibility. The Children’s Court did not make an order in the exercise of its jurisdiction under s 79A of the Care Act. In GR the Supreme Court confirmed the s 79 orders in the exercise of its appellate jurisdiction in relation to a decision of the President of the Children’s Court. These are the orders to which GKC is subject. We had regard to the present operation of the Care Act orders in ordering that our decision take effect on GKC’s 18th birthday. We were satisfied that the s 15 restrictions of the Act on the Tribunal’s power to make a guardianship order did not prevent the Tribunal from making the proposed guardianship order in relation to GKC.
Further, the fact that the mother sought what she referred to as ‘financial guardianship’ on appeal to the Court of Appeal from a decision under the Care Act in relation to parental responsibility for GKC until he turns 18, did not satisfy us that the question of GKC’s capability to manage his own affairs from the age of 18 was before the Supreme Court. There was also no suggestion that there was any order in force under other legislation in respect of any part of GKC’s estate.
In our view the mother’s concern that the Court of Appeal could make a guardianship order is sufficiently addressed by the fact that the Guardianship Act contemplates the possibility of competing orders in the nature of guardianship orders. Nothing in Pt 3 of the Act limits the jurisdiction of the Supreme Court with respect to the guardianship of persons (see s 8 of that Act) and under s 23(b) of the Act any guardianship order made by the Tribunal would not have effect in relation to a person ‘while the person is … the subject of a subsequent order made by the Supreme Court, in the exercise of its jurisdiction with respect to the guardianship of persons, appointing a guardian of that person’s person’. If the Supreme Court did exercise jurisdiction with respect to the guardianship of persons to make an order appointing a guardian for GKC which was to operate after he turned 18, the Tribunal’s order would be suspended while any such Supreme Court order was in effect.
However that possibility, and the mother’s references to other proceedings she said she had initiated, were not such as to satisfy us that it was in GKC’s interests and consistent with his welfare that we should adjourn, dismiss or stay the present proceedings just in case an order may be made by the Supreme Court with respect to the guardianship (and/or financial management) of GKC after he turns 18.

When considering whether to adjourn the proceedings (see s 51 of the CAT Act), we had regard to the guiding principle in that Act, which is to facilitate the just, quick and cheap resolution of the issues in the proceedings: CAT Act, s 36(1). We also had regard to the principles in s 4 of the Act, including that the paramount consideration is the welfare and interests of GKC as the person who is the subject of the proceedings.
We were of the view that it was in GKC’s best interests that the hearing of the applications for orders in relation to guardianship and financial management in the transitional period after he turns 18 should proceed on the date appointed. An indefinite delay would not be in his interests, consistent with his welfare or with the guiding principle in the CAT Act of facilitating the just, quick and cheap resolution of the issues.
The present applications were brought to address the period of transition as GKC leaves the care of the Minister, as he must do on his 18th birthday. In practical terms this period needed to be addressed by applications lodged and considered in advance of that date, so that there can be co-operation and consultation between any appointed substitute decision-maker and the Minister in relation to matters such as where GKC is to live from the day he turns 18, to ensure that he continues to receive necessary services and that his finances are managed in his interests.
In so far as the mother sought dismissal of the proceedings, the Tribunal may dismiss proceedings at any stage in the circumstances specified in s 55 of the CAT Act, in particular if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. To the extent that the mother’s assertions relied on the fact that judgment was reserved in the Court of Appeal proceedings we were not satisfied that we should dismiss the applications at any stage in the proceedings. As indicated, the applications were brought to address the period of transition after GKC leaves the parental responsibility of the Minister on attaining the age of 18 and the orders sought do not conflict with the parental responsibility orders under the Care Act. The applications were supported by relevant evidence and submissions. We bore in mind that the interests and welfare of GKC must be our paramount consideration and proceeded with the hearing on this basis.
Moreover, the mother’s allegations did not establish any abuse of process on the part of the applicant in making the applications. While the Supreme Court retains its inherent parens patriae jurisdiction, the Tribunal is a proper forum in which to seek guardianship and financial management orders to take effect when GKC turns 18 (see P v NSW Trustee and Guardian [2015] NSWSC 579 and F v NSW Trustee and Guardian [2017] NSWSC 131).
The mother’s opposition to the proceedings, the fact that she was not joined as a party, and her assertions that the Tribunal should disregard any medical reports for GKC from the children’s hospital pending investigation of complaints she has made about certain health professionals did not satisfy us that the proceedings were frivolous, vexatious or otherwise misconceived or lacking in substance.
In so far as the mother intended to rely on the fact that she was not a party to the present proceedings and that her subsequent guardianship and financial management applications were not joined to these proceedings, the presently constituted Tribunal does not have jurisdiction to review or consider any appeal from those decisions of the Tribunal differently constituted. Moreover, while the parents were not joined as parties, they had extensive opportunities to be heard as witnesses during the hearing and we considered written evidence they each lodged. During the hearing the main obstacle to their participation was the mother’s frequent, repeated and inappropriate interruption when the father gave evidence. While such interruptions increased the time needed for the hearing, we were ultimately satisfied that both parents were given a reasonable opportunity to be heard on the matters we had to decide.
We considered the proposals of the mother and of the father in relation to who should be appointed guardian and/or financial manager for GKC. As discussed further below, we endeavoured to ensure that in so far as the mother’s suitability to be appointed guardian and/or financial manager for GKC was the subject of adverse comment in submissions and other material before the Tribunal in these proceedings, she had the opportunity during the hearing to comment on the criticisms made in that respect.
In all the circumstances we were not satisfied that it was in GKC’s interests to dismiss or adjourn the proceedings or to make any order in the nature of a stay to halt further proceedings in the Tribunal pending delivery of the judgment of the Court of Appeal on appeal from the decision of Sackar J in GR or otherwise.

GUARDIANSHIP

What did the Tribunal have to decide?

In making any decision in an application of this nature, we must consider the principles in s 4 of the Act The questions to be considered by the Tribunal were:

Does the applicant have standing to make the application?

Is GKC someone for whom we could make a guardianship order?

Should we make a guardianship order, and if so, what order should we make?

If we make a guardianship order, who should we appoint as guardian and how long should the order last?

Does the applicant have standing to make the application?

Under s 9 of the Act an application for a guardianship order in respect of a person may be made by the person, the Public Guardian or “any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person”.
The mother suggested that BZF made deliberately false statements to courts and other entities, was not trustworthy and had a conflict of interest in bringing the present proceedings.
Contrary to the mother’s contentions, we could see no conflict of interest or inappropriate motivation in a casework manager with Metro ISS, seeking, in her professional capacity, orders from the Tribunal consistent with a child’s imminent transition out of the care of the Minister on attaining the age of 18. Metro has worked with GKC since April 2020. We were satisfied that the applications were motivated by an appropriate concern to ensure that GKC’s ongoing needs, welfare and interests are addressed as he transitions to adulthood out of the parental responsibility of the Minister.
The evidence before did not support the mother’s other allegations in relation to BZF. We noted that, in contrast to the mother’s assertions that BZF has been untruthful to courts, in GR at [821] Sackar J accepted BZF’s evidence as truthful.
Further, contrary to what appeared to be the mother’s understanding, BZF was not seeking that she should be appointed guardian or financial manager for GKC. She proposed the appointment of independent entities: the Public Guardian and the NSW Trustee and Guardian. There was no evidence, and we did not accept, that the applications were lodged to advance BZF’s interests, rather than those of GKC.
We were satisfied that under s 9(1)(d) of the Act, BZF had standing to make the guardianship application as a person who has a genuine concern for the welfare of GKC.

Is GKC someone for whom the Tribunal could make a guardianship order?

Section 14(1) of the Act enables the Tribunal to make a guardianship order for GKC if we are satisfied that he is “a person in need of a guardian”. A person in need of a guardian is “a person who because of a disability is totally or partially incapable of managing his or her person”: the Act, s 3(1). A person with a disability is a person who is:

intellectually, physically, psychologically or sensorily disabled;

of advanced age;

a mentally ill person within the meaning of the Mental Health Act; or

otherwise disabled;

and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: the Act, s 3(2).

Commonly, we consider the person’s ability to make important personal, health and lifestyle decisions, as that is a major life activity that impacts on the person’s ability to manage in society. We also bore in mind that as Lindsay J explained in P:

“The expression ‘social habilitation’ (in the context of references to ‘disability’, ‘restricted’, ‘major life activities’ and the word ‘requires’) may be taken to refer to a need for services to help a person to be, or become, able to function normally in community with others.”

For his part, GKC believed that he could make decisions for himself regarding important personal matters such as where he would live after he turned 18. He indicated to the Tribunal that he wanted to live alone and that he did not want someone to say he had to live with other people or that he had no choice. In so far as he meant that he wanted to live alone without the assistance of carers this would suggest a lack of appreciation of the risks for him of living alone, as detailed in the report of Dr Q referred to below. However GKC admitted that he wanted some help with decision making and (consistent with reported statements recorded by Dr Q) it appeared that he did not reject the need for future in-home carers but was focused on his wish not to live in shared accommodation.
GKC reiterated this and other matters of concern to him. In so far as GKC referred to returning home, it was not apparent that he wished to live at home with his mother, as she proposed. During the hearing he asked several times if he could live in the Gold Coast house (later explained by his father as a reference to a property he owned) and whether he could get his laptop and other devices from (his mother’s) home. It appears from material lodged by the mother, that this has been a recurrent desire expressed by GKC and is a reference to computer equipment containing, amongst other things, his password to access Bitcoin investments he made in the past with the assistance of his father. There was evidence that his mother has refused to return such equipment. She is aware that he wants these possessions returned to him and, indeed, provided the Tribunal with documents stating his wishes in May and July 2022 in which he reiterated these concerns. She told us that she thought that if she returned this computer equipment to GKC it would be ‘stolen’ by departmental or support workers.
GKC’s mother told us that she did not think that GKC needed a guardian, that at all times he had made the correct decisions for himself and that he had been ‘forced’ by DCJ to have medical treatments. She suggested that there was no objective evidence that GKC lacked mental capacity and, contrary to the expert evidence, appeared to be of the view that he did not need assistance to manage in the community.
GKC’s great uncle could not recall when he had last seen GKC. When asked about the need for a guardian, he responded by addressing the need for family support and involvement in GKC’s life.
We had regard to GKC’s views and those of his mother in light of medical and other assessments included or referred to in the material before the Tribunal. We preferred and gave more weight to the expert evidence. We were of the view that GKC lacks understanding of the impact of his autism on his decision-making capacity and his need for supervision and social habilitation. His mother showed no insight. She put before the Tribunal documents containing considerable evidence referring to GKC’s severe autism and high support needs, but it appears that she does not accept such evidence.
A finding of mental illness is not a necessary requirement to satisfy s 3(2)(a)-(d) of the Act and, as Lindsay J pointed out in P at [297], the concept of disability in s 3(2) of the Act is “measured against the possibility of a consequential ‘restriction’ on the particular person ‘in one or more major life activities to such an extent that he or she requires supervision or social habilitation’.”
In a June 2020 clinical file review, Mr P, psychologist, summarised GKC’s diagnoses, previous assessments and recommendations and reported on matters including GKC’s behavioural and care issues. This report also explained recommendations that family contact with GKC should be limited and supervised in his interests.
GKC was diagnosed with ASD and anxiety disorder when he was four years old. The ASD diagnosis (with communication level 2 and behaviour level 3) was later confirmed by a psychiatrist. In 2019 Dr O, paediatrician, reported that GKC’s autism functional levels fluctuated between 2 and 3 and that he required significant supports. He was also said to have severe social and communication disorder, maladaptive coping based on long-term familial maladaptive practices and avoidant restrictive food disorder contributed to by using food refusal for protest and control. He attended mainstream primary school but was reported to have been transferred to a support class for children with disabilities in high school. He has in the past made excellent academic progress in some respects, but this was impacted by prolonged school absence. GKC was said to need support with some activities of daily living and to address his intermittent violence.
As indicated, GKC has spent a considerable amount of time in hospital as a result of what has been described as food refusal, significant weight loss and complications with malnutrition. It was reported that he was referred to the children’s hospital due to the complexity of his presentation and continued deterioration at that time. Various diagnoses have been proposed in explanation for his presentation and behaviour.
Dr N, psychiatrist, was reported to be of the view that GKC lacked the capacity to make appropriate decisions due to his disability, preoccupations and behaviour and that he was unable to respond in a ‘normal’ way to his life experiences.
It is reported that there has been an improvement in GKC’s eating and behaviour since he has lived in the disability service provider residence. Dr L, psychiatrist and co-director of the Eating Disorder Service at the children’s hospital, reported in July 2021 on GKC’s complex and high needs. GKC continues to receive outpatient care and there was some reported weight gain and improvement in his self-care as of September 2021.
Notes on the children’s hospital Case Conference of March 2022, involving a multidisciplinary team and support service providers, addressed a transition plan for GKC in anticipation of the end to the parental responsibility of the Minister. The notes recorded that at his most recent review GKC had generalised anxiety and that his day-to-day function was significantly impaired. He was experiencing significant joint swelling and pain and had been diagnosed with and was being treated for rheumatoid arthritis (having been diagnosed with juvenile idiopathic polyarticular arthritis as reported by a rheumatology registrar on behalf of Dr M, paediatric rheumatologist, in November 2021).
The Case Conference addressed issues such as GKC’s transition to adult rheumatology specialists, a dentist, a GP with an interest in working with adolescents, a dietician experienced with young people with special needs, and the desirability of regular psychiatrist’s reviews.
In a report of 13 October 2021, Ms K, occupational therapist, reported on GKC’s complex personal and medical history and diagnoses, also noting that he had reduced mobility and strength. He was said to have difficulties engaging in everyday activities at home and in the community, including self-care activities such as showering, accessing the community and going to the shops. He was reported to find it difficult to maintain positive relationships. According to Ms K, GKC’s difficulties with flexibility in thinking, including perspective-taking and following the agenda of another person, have a potentially negative impact on his participation in the community.
In a speech pathology progress report of 29 May 2021, Ms J, speech pathologist, reported on an assessment of GKC conducted in Japanese (as, due to his selective mutism, Japanese was said to be the only language GKC used to communicate with people outside his family). The report discussed GKC’s therapy and progress towards social communication goals. He was said to have made some progress and further speech pathology intervention sessions were recommended.
More recently, on 2 May 2022 Dr Q, occupational therapist, provided a detailed occupational therapy functional skills assessment and recommendation report. Dr Q reported on GKC’s regular medical and psychiatric reviews. At the time of the report GKC had resumed attending school and was seeing a DCJ mentor, a psychologist and a speech therapist once a week, and an occupational therapist once a fortnight.
Dr Q outlined a reported proposal that GKC might transition to a supported group home on turning 18, but noted that GKC had indicated to him that he would like to live as independently as possible by receiving therapy services to help him to address his issues and that he would like to continue to have support for community access, personal and domestic care.
Dr Q’s assessment included completion of an adaptive behaviour assessment (ABAS-3) as well as observations in OT sessions, therapy sessions and review of GKC’s behaviour intervention plan and other reports.
On assessment, GKC’s scores in the adaptive skills areas, including conceptual, social and practical, were all recorded as extremely low.
His speech, language and listening skills, needed for communication with others (including vocabulary, responding to questions, conversation skills and non-verbal communication), were assessed as in the extremely low range. Dr Q recognised that GKC mainly communicated in writing or by facial expression, gestures and vocalisation. According to Dr Q, unfamiliar people find it hard to understand GKC’s wants and needs and if he does not have his smart phone or pen and paper with him ‘most of the time, [GKC] would stand there .. silent and would not ask for help from others”.
The assessment indicated that GKC has extremely low basic academic and functional skills and difficulty reading, recalling and understanding what he has read (although there is also evidence that he is able to learn and communicate in Japanese).
In Dr Q’s opinion, GKC is unable to discuss his future educational or career goals. Of concern, he is unable to distinguish truthful or exaggerated claims made by others. He is unable to explain the terms of legal documents to others. He is unable to tell others his home address. He requires support in this area.
GKC was assessed as having an extremely low ability to make independent choices, exhibit self-control and take responsibility when appropriate.
According to Dr Q, GKC is unable to self-regulate his emotions in conflict situations and engages in challenging aggressive physical behaviours towards himself and others, especially when frustrated or upset, but also sometimes without any trigger. He is variously reported to be demanding, reactive, agitated, resistant to demands or physical treatment, withdrawn, catastrophising, and to have engaged in other behaviour linked to hyperarousal, including self-harm and refusal to eat or drink. He is also reported to engage in fixated/obsessive behaviour, repetition, repeated checking of details, high focus on favoured activities and insistence on sameness, order, idiosyncratic details and routine and to be difficult to redirect.
Significantly, Dr Q reported that GKC is unable to go out into the community by himself due to his challenging behaviour and requires 1:1 support when in the community. While able to follow simple instructions (such as ‘wait’ or ‘walk this way”) he does not have road safety awareness. He sometimes crosses the road without checking the traffic conditions and is unable to navigate around the local environment by himself.

GKC was reported to be unable to budget to ensure money would cover weekly expenses, unable to purchase small items from a supermarket or over the counter or to send personal letters or emails. While GKC can make meal choices (and was reported to be a Vegan or vegetarian) he requires assistance from support workers to purchase meals or order online.
In the practical domain GKC’s ability to function in the community and to get around, including shopping and using community resources, was assessed as in the extremely low range. According to Dr Q, GKC is unable to use an ATM to withdraw small amounts of money. (A support worker, Ms S, reported that GKC could follow banking instructions from a support worker as they went with him to the bank). He requires verbal prompts to complete this task. He is unable to find a restroom in a public place or a specific area in a store or business without prompts.
While GKC can identify where food is kept and is able to make a simple meal with prompts, he cannot complete day-to day meal planning and preparation as he is not motivated. He requires supervision when heating meals and is unable to cook proper meals by himself. Dr Q explained that after engagement with a therapist, GKC is now able to complete most activities of daily living with minimal to moderate prompts. However he was reported to be unable to assist with domestic tasks or to manage the logistics of requesting assistance for any minor household repairs or maintenance.
GKC’s ability to protect his physical well-being, prevent or respond to injuries, including following safety rules, showing caution and using medication when appropriate was assessed as in the extremely low range.
GKC was said to be unable to open or lock the door to his home with a key independently. He can regulate water temperature appropriately but is unable to cope in the event of a power blackout. He is able to take medication under supervision but is unable to organise a medical appointment when required.
In Dr Q’s opinion, on a background of ASD level 3, challenging aggressive behaviours, high anxiety and PTSD GKC requires very high-level behavioural supports including 1:4 supervision at all times and ongoing speech therapy, occupational therapy, psychological and behavioural supports.
At various times, medical practitioners and psychologists have diagnosed GKC with a range of conditions in addition to ASD, anxiety and depression, such as selective mutism, oppositional defiant disorder, obsessive compulsive disorder, conduct disorder, intermittent explosive disorder, attention deficit disorder, avoidant restrictive food intake disorder and pathological demand avoidance. What is clear, however, is the consistent evidence that he has severe autism and is unable to live independently. His medical issues are long-standing and he requires on-going therapeutic interventions in various respects, including in relation to his lack of verbal communication and poor self-care and lack of skills to manage in the community.
While improvements in GKC’s behaviour and basic skills have been reported since he moved into his present accommodation, he continues to have complex and high needs associated with his autism and other diagnoses which suggest a long-term need for therapeutic intervention.
All the other witnesses at the hearing who commented on the issue believed that GKC has impaired decision-making capacity and requires supervision in the community and/or services to help him to function normally in community with others.
GKC’s father, who explained that he was GKC’s principal carer before he was taken into care by DCJ, and who has regular telephone contact with GKC and visits him when he is in NSW, told us that GKC needs constant oversight and counselling to guide him through his impulsive decision-making and obsessive pursuits. He agreed that GKC is a person in need of a guardian.
Ms I, support worker, told us that GKC needed care when in the community and that although he could make some decisions and knew what he wanted in some respects, he needed help and guidance.
Mr T, support worker, was of the view that GKC has limited decision-making capacity, particularly in relation to understanding what a decision would entail and the consequences, particularly long-term. He cannot navigate how to effect a choice or necessarily make the best choice when decision-making. He was of the opinion that GKC was in need of a guardian.
BZF relied on the evidence referred to above in support of her view (also expressed by Ms Taylah Mihell, solicitor), that GKC was a person for whom the Tribunal could make a guardianship order. She saw a need for a guardian to assist GKC with decision-making and access to needed services following his transition out of the care of the Minister.
Ms R from the Public Guardian’s office was also of the view that GKC a person for whom the Tribunal could make a guardianship order.
Ms Beaumont, separate representative, expressed the opinion, based on the material relied on by the applicant (particularly the report of Dr Q) and conversations with GKC’s present carers, that GKC has impaired decision-making capacity and also a need for supervision in the community. She submitted that GKC was someone for whom the Tribunal could make a guardianship order.
We were satisfied that GKC has a disability, being severe autism spectrum disorder, which causes him to have impaired decision-making capacity for important personal, health and lifestyle decisions. His disability restricts him in informed and rational decision-making. While he can make simple choices, he lacks understanding or appreciation of the consequences of his decisions and his rigidity impedes him in considering alternatives. As a result of his disability he is also restricted in his ability to manage in the home and in the community to such an extent that he requires supervision and support services. He is partially incapable of managing his person and needs supervision or assistance to function in society. He is a person for whom the Tribunal could make a guardianship order.

Should we make a guardianship order, and if so, what order should we make?

When considering making an order, we must have regard to GKC’s views, if we were able to obtain them. We were also required to consider the importance of preserving his existing family relationships and particular cultural and linguistic environments as well as the practicability of him being provided with services without the need for an order: the Act, s 14(2).
We must consider each of these matters. If we need to consider different or competing issues, we undertake a balancing exercise. We also consider any other relevant evidence. We must have regard to the principles in s 4 of the Act. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, we refer to it in our reasons.
GKC and his mother did not address specific areas in which there may be a need for a substitute decision-maker in GKC’s interests. His mother does not accept that there is such a need (although she proposed that she should be appointed GKC’s guardian if we were to make an order).
GKC’s mother suggested that there was a conflict of interest in the guardianship application as the applicant wanted to keep GKC prisoner for a further seven years while controlling him. She repeated her criticisms of BZF and suggested that it was clear that GKC had no difficulty making decisions and that as he was mentally stable and had never been scheduled he was competent to make his own decisions and to give his own consent.
In relation to accommodation the mother focused on her belief that GKC wanted to live at home with her as has been reported to be the case in the past. She suggested that he had been bullied by FACS to say something different. When asked whether she thought that GKC could understand the complexity of arranging to live alone and to obtain services and whether he could make those complex decisions, the mother’s response was that GKC did not want to live alone. She suggested that she would not dictate and would let GKC live a normal life as that had not happened since he was ‘stolen’.
When we asked GKC if he thought he needed help to arrange living alone, GKC said he could do that and that he wanted to try himself. When the role of a guardian was explained he did not appear to understand. He asked if he could live in the Gold Coast house.
The applicant and other witnesses at the hearing raised several decision-making areas where they felt that GKC might benefit from the appointment of a guardian. Ms Mihell submitted generally that it would be in GKC’s interests for a guardian to make decisions in relation to medical and dental consents and social support and to assist GKC to navigate his social and family situation. Particular functions of accommodation, services, health care, medical and dental consents and access were identified.
Ms Mihell and the applicant’s written submission referred to a need for a guardian, in particular with accommodation and services functions to liaise with DCJ and others and to ensure that suitable accommodation and services are located and arranged for GKC as he transitions out of the care of the Minister. GKC will need the involvement of an informed guardian to navigate NDIS funding and the selection of service providers sufficient to meet his high care and supervision needs.
GKC showed no awareness of the complexity of his needs in this respect. Nor did his mother. His father acknowledged that GKC needed a guardian to make complex decisions. GKC’s father referred specifically to a need for a guardian with power to make decisions in relation to services.
We heard from Ms R from the office of the Public Guardian. Having listened to the evidence she submitted that we should make a guardianship order with those functions which had been identified as potentially being required.
Ms Beaumont, separate representative, agreed.
We were satisfied that it would be in GKC’s interests and consistent with his welfare for a guardian to be appointed with accommodation and services functions.
We also had regard to GKC’s potentially complex health care needs, the imminent cessation of paediatric services provided under the parental responsibility of the Minister and the need for transition to suitable and sufficient adult health service providers. We saw a potential for confusion and conflict as to identification of a person responsible within the statutory hierarchy who was available, willing and able to make potentially complex consent decisions given the clear antagonism and different views of GKC’s parents (as well as his mother’s denial of his need for a guardian or his difficulty with complex decision-making). We were of the view that in the interests of clarity and consistency an appointed guardian should have medical and dental consent and health care functions.
In addition, having regard to the evidence which led to the imposition of restrictions on GKC’s contact with his parents (referred to further below) and the possibility that his views in this respect could well be overridden by those of his mother, we were of the view that it would be consistent with GKC’s welfare and interests for an appointed guardian to have an access function. Any such decisions (as with other decisions) would be made after consultation with GKC.
We considered whether making or not making such a guardianship order would have an impact on GKC’s existing family relationships. GKC’s father has contact with his son and we accepted that he has been working well with the service providers in GKC’s interests. This relationship is important to GKC’s welfare. The applicant described GKC’s father as vital and part of the planning for GKC’s health, well-being and progression towards leaving the Minister’s care. We were satisfied that whatever decision we made and notwithstanding the father’s clear conflict with GKC’s mother and some unhelpful comments (in the context of the understandable stress and frustration occasioned by frequent interruptions and strident criticisms by GKC’s mother against whom he has a domestic violence protection order), he would maintain the relationship with his son in GKC’s best interests.
We could not be satisfied that the mother would take the same approach. She is GKC’s mother and clearly wants him to live with her, but we understand that he has not had contact with her since he moved into the residential care home in 2020. Earlier in 2019, while GKC was hospitalised there were reported incidents involving his mother which resulted in medical professionals recommending and introducing limited and supervised contact due to the impact of contact on GKC’s behaviour and the therapeutic relationship between GKC, the hospital and Impact. GKC is reported to have shown improvements in his behaviour and health since that time.
It would seem that the hearing was the first occasion in some considerable time that GKC has had direct exposure to his mother. During the hearing his mother showed little or no insight into the effect of her behaviour on her vulnerable son. She interrupted other witnesses repeatedly. She made critical and offensive remarks about GKC’s father, referred to GKC as having been ‘stolen’ and (unjustifiably) suggested that GKC was scamming NDIS and Centrelink. Despite our attempts to restrain such remarks and our references to GKC’s interests, his mother persisted in such behaviour.
However, given the current absence of access between GKC and his mother, we were satisfied that making or not making a guardianship order would not further impact their existing relationship negatively.
There was no evidence of a present relevant cultural or linguistic environment. However GKC’s great uncle (his mother’s uncle), who GKC referred to with some affection as reminding him of his late grandfather, spoke of the family (on the mother’s side) as being an ‘orthodox’ Indian family and of family values and the importance of family involvement in GKC’s life. Mr X could not recall when he last saw GKC. He lives in Western Australia. However his evidence and participation in the hearing from London suggested that there is some prospect of future positive involvement with GKC on the part of his great uncle and extended family, even if the result of these proceedings is not the result wanted by GKC’s mother.
We were satisfied that having regard to the impact of GKC’s disability referred to above, the parental conflict, GKC’s vulnerability, his need for supports and the complexity of addressing the transitional period it would not be practicable for the needed services to be provided to him in the absence of formal guardianship order.
We decided to appoint a guardian with power to make decisions in relation to accommodation, health care, medical and dental consents, services and access.

Whom should we appoint as guardian, and how long should the order last?

The Tribunal is not able to appoint the Public Guardian as a person’s guardian if there is a private person who can properly be appointed: the Act, s 15(3).
The Supreme Court has held that:

“the proper meaning to be given to [section 15(3)] is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).”

In deciding whether a person is able to undertake the role of guardian, we must consider whether they are able to exercise the functions in accordance with the principles in s 4 of the Act: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075 at [66].
We must also be satisfied that any proposed private guardian has a personality which is generally compatible with that of GKC, has no undue conflict of interest and is willing and able to exercise the functions of the proposed order: the Act, s 17.
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The mother proposed that she should be appointed guardian for GKC. At the hearing she proposed that in the alternative she should be appointed jointly with her uncle. The father proposed that he should be appointed guardian and also asked whether he and the Public Guardian could be appointed jointly or some functions allocated to the Public Guardian and some to him.
The main obstacle to appointment of the mother, whether solely or jointly, as guardian for GKC, is that she does not accept that GKC needs a guardian. She said that if she was appointed she would ‘always go by what [GKC] wanted’. While GKC’s wishes are relevant, they are not conclusive, and his mother’s failure to accept that he needs a guardian and her stated intention to defer to his wishes meant that we could not be satisfied that if appointed guardian for GKC she would be willing or able to exercise the functions conferred by the order, let alone do so in accordance with the principles in s 4 of the Act. She showed no understanding of the distinction between GKC’s interests and welfare and his wishes. At times she also appeared to be of the view that her wishes should prevail over GKC’s interests and welfare – particularly in relation to where he should live. Indeed, even though GKC’s mother told us that she would follow GKC’s views if she were to be appointed guardian, later in the hearing she was insistent that GKC did not want to live alone, despite having heard his evidence to that effect. She was sure that what he wanted was to live with her and not with carers and it was clear that she wished to proceed on that basis. The mother’s views were of considerable concern in this respect. When GKC was asked his views as to whether his mother should be appointed his guardian, he indicated that he did not want to respond.
We gave the mother the opportunity to comment on the applicant’s submission and the evidence at the hearing suggesting that despite her clear affection and well wishes for her son’s well-being, she had displayed a poor capacity to demonstrate an understanding of GKC’s physical, social and emotional needs and had been unwilling or unable to follow direction or advice from his care providers or medical staff around appropriate supports. Instead of responding to these concerns, the mother launched into another denunciation of the applicant as untruthful.
There was evidence that in the past, as well as at the hearing, the mother has consistently made assertions about GKC’s well-being and care that are contrary to those of medical staff, support workers and other health professionals. At the hearing the mother demonstrated a lack of understanding of GKC’s care needs and a denial of the opinions of health professionals working with GKC that were contrary to her views. The documents she lodged, in particular material relating to Children’s Court and Supreme Court proceedings, confirmed rather than displaced these concerns.
The mother also made (as she is also reported to have made in the past) frequent unhelpful assertions in front of GKC about his care and future placement. We were concerned that such remarks could cause anxiety and confusion for GKC. Having regard not only to her presentation and oral evidence, but also to the reports of GKC’s care history in the documents she lodged from the public hospital and the children’s hospital, we were also concerned that the mother would not be able to interact appropriately with health professionals or to provide GKC with stability, routine, consistent medical support and the long term engagement with professional services seen as necessary for his continuing recovery from his eating disorder or to address the impacts of his autism.

While there was no evidence of a financial conflict of interest between the mother and GKC, we could not be satisfied that there was no conflict between her non-financial interests and those of GKC. Even if such conflict is not ‘undue’ within s 17(1)(b) of the Act or such as to indicate an absence of compatible personality within s 17(1)(a) of that Act, the mother’s insistence that GKC wanted and should live with her suggested that her personal interests would conflict with those of GKC. We did not accept her suggestion that his views were the result of bullying by support workers or others. She showed no insight or ability to make decisions objectively and did not explain how she would act to avoid the conflict between her wishes and those expressed by GKC.
In addition, the mother is the subject of a domestic violence protection order taken out by the father which is in effect until 2026. She showed disdain for the father, suggesting, with no evidence, that he has Alzheimer’s disease. At the same time the father suggested that the mother has a long history of untreated mental illness. Although there was evidence of a suggestion that the mother has a personality disorder, there was no diagnosis in relation to either parent in evidence before us. What is clear is that the parents would be incapable of working together and engaging in consultation in the interests of GKC.
The requirements of s 17(1) of the Act are cumulative. Having regard to all these matters we were not satisfied that the mother is both willing and able to exercise the functions conferred by the proposed order as required under s 17(1)(c) of the Act. We also concluded that she was not a suitable person to be appointed within s 15(3) of the Act as we could not be satisfied that her appointment would result in giving effect to the policies and principles underlying the Act.
As we were not satisfied that the requirements of s 17(1)(c) of the Act were met in relation to the mother, she could not be appointed guardian for GKC either as sole guardian or jointly with her uncle. There was no suggestion that her uncle should be appointed sole guardian for GKC.
While the father recognised the primacy of GKC’s interests and welfare, he also told us that he would ignore the mother’s views in making decisions were he to be appointed guardian as in his opinion her views were never in GKC’s interests.
Unfortunately, given the present extremely high level of family conflict and the clear evidence that the father would not have regard to the views or wishes of the other parent, we could not be satisfied that he would be both willing and able to exercise the functions of the proposed order as required under s 17(1)(c) of the Act or that he would be willing and able to do so in accordance with the principles in s 4 of that Act. Accordingly, he cannot be appointed guardian for GKC.
We note that a joint appointment with the Public Guardian is not permitted (see s 16(3) of the Act) and the family conflict and vitriol is such that we could not be satisfied that the father would be both willing and able to exercise any particular functions which could be separately conferred on him. Past history and the evidence and behaviour at the hearing suggests that if the father were to be appointed guardian with any functions, the mother would be likely to impede his role as guardian to such an extent that, even if he was willing, we could not be satisfied that he would be able to exercise any such functions as required under s 17(1)(c) of the Act. While we accepted that the father was motivated by concern for GKC’s best interests, the prospect of ongoing disputation between GKC’s parents interfering with decision making in relation to his access to needed services would not be in his interests and could potentially damage his important ongoing relationship with his father.
As we were not satisfied that either the mother or the father could be appointed guardian for GKC, we decided to appoint the Public Guardian.
We decided to make an order for 12 months. Many of the decisions which are likely to be required will need to be made soon after GKC turns 18. The Tribunal will review the order, including the need for a guardian and whether all of the relevant functions are needed, at the expiration of the order.

FINANCIAL MANAGEMENT

The questions which had to be decided by the Tribunal concerning financial management were:

Does the applicant have standing to make the application?

Is GKC incapable of managing his affairs? Evidence of how he is managing his affairs is relevant as we assess the person’s actual circumstances, including the support available to them and their ability, with that support, to make sound financial decisions.

Is there a need for another person to manage GKC’s affairs, and is it in his best interests to make a financial management order?

If so, who should we appoint as the financial manager?

Does the applicant have standing to make the application?

For the reasons given above in relation to the guardianship application we were similarly satisfied that the applicant has standing to make the financial management application as a person with a genuine concern for the welfare of GKC within s 25I(1)(b) of the Act.

Is GKC incapable of managing his affairs?

In essence, the test is whether GKC is incapable of dealing, in a reasonably competent fashion, with his affairs. If not, we consider whether that lack of competence causes a real risk that he may be disadvantaged as a result or that his money or property may be wasted or lost to him.
In Re D [2012] NSWSC 1006, White J noted that in the past the issue of capability had been approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Supreme Court (and the Tribunal) now assesses the person’s own capacity to do what they are proposing to do (Re D at [58]). White J used a “rational appreciation” of assets test to determine a person’s capability to manage his or her affairs. His Honour adopted the reasoning of Barrett J in P v R [2003] NSWSC 819 that the role of the decision-maker:

“… is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person’s property…the requisite judgment is to be made in the light of objective physical facts concerning the relevant person’s property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter [26].”

In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:

“Of central significance is the functionality of management capacity of the person said to be incapable of managing his or her affairs, not: (a) his or her status as a person who may, or may not, lack ‘mental capacity’ or be ‘mentally ill’; or (b) particular reasons for an incapacity for self-management.”

The test for determining a person’s capability to manage his or her affairs has also been described as follows (P v NSW Trustee and Guardian, at [307]-[308]):

“Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests?
…
[A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.”

In considering whether the person is “able” in this sense, consideration may be given to:

past and present experience as a predictor of the future course of events;

support systems available to the person; and

the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498 at [38], and P v NSW Trustee and Guardian at [309].

The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of the hearing but the reasonably foreseeable future (McD v McD (1983) 3 NSWLR 81 at 86). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:

“Each case must, of course, be considered on its own facts, including not only actual facts presently known but also, so far as they can be known, prospective developments”

When asked if he could manage his money (after having heard his parents’ views) GKC told us that he had never made impulse purchases, had made savings and that he knew that he had to buy food and pay rent. He said that he wanted to ‘stay’ in control of his money. He was prompted by Ms I as to his Centrelink benefits and told us that he paid for the internet, his phone and driving lessons. He said that he does not run out of money. He had purchased (with the help of his father) some Bitcoin in 2017 and wished to have access to his password. He did not know the present value of his Bitcoin.
However GKC had no idea how the cost of his accommodation would be met after he leaves the care of the Minister. He was aware of the prospect of NDIS funding and had been helped by his support workers in this respect. Ms I told us that they had applied for DSP for GKC and that it had been approved, but no-one at the hearing knew whether there would be back pay and if so how much. GKC seemed to rely on the fact that he had accumulated savings that he could access to meet his future needs.
BZF told us that there was an NDIS plan and an application had been lodged by DCJ for funding after GKC turns 18. The plan will require management of a considerable amount of funding. She was of the view that GKC needs support from an independent financial manger to manage his finances when the present DCJ funding stops so that he has access to food, any medication and personal essentials which he does not have to pay for at present.
The applicant was also of the view that GKC did not have the capacity to understand his high and complex funding needs. She referred to his lack of budgeting skills and the fact that he has frequently indicated that he wishes to spend large amounts on non-essential items or objects on which he has become fixated (such as a life-sized statue of a horse and now a real horse) and has shown no understanding of the cost of food, preferring to order Uber Eats for every meal rather than to cook or eat the food that has been prepared for him.
At present, GKC’s spending is restrained by the advice of his support workers and his inability to manage banking independently. BZF was concerned that GKC would neglect paying for essentials if left to manage his own money and that he would spend his money on non-essentials and would be vulnerable to loss or misuse of his money in the absence of a financial manager.
GKC’s mother was of the view that with the support of his family (other than his father) GKC was capable of managing both his financial and any legal affairs in a better manner than either his father or ‘FACS’. She suggested that he had good insight and had his own home, in that he could live with her in her home. She said that she would buy him the Tesla he wanted.
GKC’s father disagreed, being of the view that GKC was not capable of managing his financial affairs. Like the applicant, the father referred to his son’s obsessions with particular interests and his wish to spend money on non-essential purchases – most recently a horse. He was of the view that such obsessive interests (which have changed over time and which he described) impacted on GKC’s capacity to manage his finances. According to his father, GKC has no understanding of the impracticality of his proposed purchases. The father was concerned that if GKC managed his own finances he would spend his money inappropriately on impulse and neglect his basic needs. He was also concerned that GKC could have free access to his two bank accounts on turning 18 in the absence of a financial manager.
In addition, the father provided evidence about his understanding that GKC is supposed to be a beneficiary in his late maternal grandfather’s estate. The father has tried to clarify this entitlement but has not been successful. He believes that this is because he lacks the authority of being GKC’s financial manager. He was concerned that, contrary to what he was told before GKC’s grandfather died, GKC would not inherit his grandparents’ house in Perth when he turned 18 or after his grandmother died. He also suggested that if the inheritance did eventuate it would need to be managed for GKC. He foreshadowed that after he died, GKC would also receive an inheritance through a Disability Trust.
Ms I described accompanying GKC to the bank and prompting him in the use of his ATM card. She was of the view that he understood the value of small amounts of money and that he was cautious when support workers explained the drawbacks of proposed expenditure.
However Mr T was of the clear view that GKC has a limited capacity to manage his finances and lacks a good comprehension of money. He expressed concern that in the absence of safeguards the financial outcome would be negative for GKC. He saw a combination of an appointed financial manager and the involvement of support workers as necessary safeguards to protect GKC from the risk of financial loss or misuse of his money. Mr T explained the process of giving advice and explanation the staff had engaged in to deter GKC from planned expenditure such as his proposed purchase of an expensive two-metre-high statue of a horse.
Mr T acknowledged that GKC had shown that he knew how to save his youth allowance while his expenses were met through the Minister, but expressed concern that he had no appreciation of the bigger picture that would apply after he turned 18. He told us that when asked how he would meet such expenses, GKC had referred to his Bitcoin and his next option had been to suggest that his family would meet his expenses. GKC had said that ‘There must be an inheritance.’
Mr T was of the view that GKC presently lacks the capacity both to generate an independent income and to manage any income.
Ms U confirmed that DCJ had received information from GKC’s carers that at present he was managing to make day to day decisions with the assistance of his carers, but suggested that it was of concern that he had shown no understanding as to how to manage a possible victim’s compensation payment, a foreshadowed inheritance (referred to below) or his bitcoin. He was said to lack knowledge and understanding of the necessary practical steps in financial management. He had not been able to make his own Centrelink or NDIS application.
Ms Beaumont referred to the financial management capacity issues identified in the report of Dr Q as set out above, including GKC’s lack of speech, language and listening skills, his inability to budget to ensure money would cover weekly expenses or to purchase small items in a supermarket or over the counter or otherwise to go shopping and his inability to use an ATM to withdraw small amounts of money without prompting. She acknowledged that there was some uncertainty in relation to a possible interest in the estate of his maternal grandfather but suggested that this suggested a need for a financial manager to investigate and manage any such entitlement. She was of the view that, at the least, GKC needed a financial manager as a bridge to adulthood and higher-level decision-making and navigating Centrelink and NDIS benefits.
We were not satisfied that placed as he is, and as will be when he turns 18 and no longer has his basic needs financed by DCJ, GKC has the ability to make reasoned, rational and informed decisions with due regard to his wants and needs and without undue risk of loss or misuse of his money. He lacks very basic money management skills. On the present evidence we were satisfied that GKC lacks the capacity to cope with the ordinary routine affairs of living and we were not satisfied that he can be relied on to make sound financial decisions. In so far as GKC does manage his money, he does so with the extensive support and prompting of his service providers in circumstances where his basic needs are met by DCJ. The support and this funding will cease after he turns 18 and it is not yet known what support he will receive to manage his money when he has to meet the needs that are presently met by DCJ. We could not be satisfied that he is reasonably capable of managing his financial affairs in a reasonably competent manner without the intervention of a financial manager charged with protecting his welfare and interests.

Is there a need for another person to manage GKC’s affairs, and is it in his best interests to make a financial management order?

The above evidence also satisfied us that there is a need for another person to manage GKC’s affairs and that it is in his best interests to make a financial management order.

Whom should we appoint as the financial manager?

When the Tribunal makes a financial management order, it may appoint a suitable person to manage the person’s estate or commit the estate’s management to the NSW Trustee and Guardian. We prefer to appoint a suitable person where that is appropriate.
In Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, the Court said that the dominant consideration in making orders about financial managers was the welfare of the person. The President of the Court of Appeal emphasised the Court’s broad discretion in deciding who should be the financial manager but also set out possible considerations as to the competing advantages of the Protective Commissioner and a family member as the manager of an estate.
The NSW Trustee and Guardian now exercises the role of the Protective Commissioner.
The Court acknowledged the manifest independence of the Protective Commissioner and the advantages of a dispassionate and neutral approach in situations of family conflict and divided views as to the best interests of the person. It also recognised the Protective Commissioner’s expertise and experience in managing estates, its impeccable reputation and the security provided to an estate against loss or damage.
The advantages of the appointment of a family member were said to include more economical management of smaller estates (that is, freedom from fees) and a greater familiarity with assets and liabilities in smaller estates, a greater capacity of a person with a disability to interact with the manager so as to exercise a greater influence over the broad directions of the management of the estate, love and affection for and knowledge of the protected person and concern for his or her quality of life, and particular qualities or qualifications enabling family members to act as managers.
The Court found that interrelated property interests in a family situation, where a conflict of interest and duty may be “more apparent than real,” should not necessarily present a bar to the appointment of an otherwise appropriate family member. However, when appointing a family member, a decision-maker must be satisfied that the estate, income and capital assets, will be utilised to advance the interests and quality of life of a protected person rather than to eventually increase the assets of the family.
Each of GKC’s parents suggested that they should be appointed financial manager for GKC. The mother proposed a joint appointment with her uncle and also appeared to suggest that as an alternative her uncle would be a suitable appointee.

The mother’s uncle lives in Western Australia and has no familiarity with GKC’s needs and capacity. The father lives in Queensland. Non-residence in NSW is not an absolute bar, but it is preferable if a financial manager lives in NSW and is reasonably accessible to the subject person.
The mother denies GKC’s lack of capacity and is an undischarged bankrupt. Bankruptcy is also not an absolute bar, but an undischarged bankrupt would not normally be a suitable person to be appointed financial manager. In this case the mother’s oral evidence raised more concerns in this respect as she spoke of having access to considerable funds and property and of her ability and intention to buy a Tesla for GKC.
In any event, in the present situation of family conflict and disagreement we were satisfied that it was in GKC’s interests to appoint an impartial third party, the NSW Trustee and Guardian, rather than any member of his family. The Trustee and Guardian is better placed to manage GKC’s money to meet his basic needs with a dispassionate and neutral approach and also to obtain access to the means to utilise his Bitcoin if that is financially advisable and to identify and protect any inheritance or other substantial funds to which GKC is or might be or become entitled.
We were satisfied that the estate of GKC should be committed to the NSW Trustee and Guardian.
Both BZF and Ms Beaumont raised the possibility that the order could be made reviewable to allow for the possibility that if GKC is able to undertake some budget and financial management training he may acquire and demonstrate some financial management skills, at least in relation to managing his disability support pension. We agreed and decided to make the financial management order reviewable within two years.

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

Registrar

Decision last updated: 17 July 2023

Medium Neutral Citation:	GKC [2022] NSWCATGD 23
Hearing dates:	20 July 2022
Date of orders:	20 July 2022
Decision date:	20 July 2022
Jurisdiction:	Guardianship Division
Before:	S Barnes, Senior Member (Legal) M J Staples, Senior Member (Professional) P J McGirr, General Member (Community)
Decision:	Guardianship 1. A guardianship order is made for GKC. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of one year from [The date that GKC turns 18]. 4. This is a limited guardianship order giving the guardian(s) custody of GKC to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access GKC has to others and the conditions of access. b) Accommodation To decide where GKC may reside. c) Health care To decide what health care GKC may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where GKC is not capable of giving a valid consent. e) Services To make decisions about services to be provided to GKC. CONDITIONS: 6. The conditions of this order are: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring GKC to an understanding of the issues and to obtain and consider his views before making significant decisions. 7. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18]. Financial Management 1. The estate of GKC is subject to management under the NSW Trustee and Guardian Act 2009 (NSW). 2. The management of the estate of GKC is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within two years. 4. Pursuant to s 61 of the Civil and Administrative Tribunal Act 2013 (NSW) this decision takes effect on [The date that GKC turns 18].
Catchwords:	JURISDICTION – where the subject person is under the care of the NSW Minister for Families, Communities and Disability Services – whether jurisdiction affected by orders made by the Children’s Court – care orders in effect until the subject person turns 18 – finding that the jurisdiction of the Tribunal is not affected GUARDIANSHIP – application for a guardianship order – whether a guardianship order should be made, and what order should be made – 17-year-old subject person with severe autism spectrum disorder – subject person in out-of-home care – finding that the subject person is partially incapable of managing his person – need for decisions to be made in relation to accommodation, health care, medical and dental consents, services and access – high level of family conflict – proposed guardians not suitable to be appointed – Public Guardian appointed – order made – order to take effect when the subject person turns 18 – s 61 of the Civil and Administrative Tribunal Act – order to be reviewed in 12 months FINANCIAL MANAGEMENT – application for a financial management order – whether subject person is incapable of managing their own affairs – complex funding needs after the subject person turns 18 – subject person in need of support to manage his financial affairs – order made – order to take effect when the subject person turns 18 – proposed financial managers not suitable to be appointed – NSW Trustee and Guardian appointed – order to be reviewed in two years
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 23(b), 44, 79, 79(1)(b), 79(A), 83 Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1), 51, 55, 61 Guardianship Act 1987 (NSW), ss 3(1)-(2), 3(2)(a)-(d), 4, 8, 9, 9(1)(d), 14(1), 15, 15(3), 16(3), 17, 17(1), 17(1)(a)-(c), 25I(1)(b), 25K, Pt 3 Mental Health Act 2007 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 GR v The Department of Communities and Justice [2021] NSWSC 1081 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 McD v McD (1983) 3 NSWLR 81 P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 and F v NSW Trustee and Guardian [2017] NSWSC 131 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Financial Management Application GKC (the person) BZF (applicant) NSW Trustee and Guardian 002: Guardianship Application GKC (the person) BZF (applicant) Public Guardian
Representation:	T Mihell, Crown Solicitor’s Office, solicitor for the applicant P Beaumont, solicitor, separate representative for GKC
File Number(s):	NCAT 2022/00106202
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.