In the Matter of Z, A Missing Person
[2013] ACAT 30
•24 April 2013
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
IN THE MATTER OF Z, A Missing Person
(Guardianship and Management of Property) [2013] ACAT 30
Identifying information redacted for publication
GT 21 of 2013
Catchwords: GUARDIANSHIP AND MANAGEMENT OF PROPERTY – missing person- appointment of manager for missing person’s property – matters leading to finding that a person is a missing person – whether reasonable efforts were made to find the person missing – whether ACT is the place where missing person “usually lives”: lack of other place that could be considered as person’s “home address” – whether there is a need for decisions about person’s financial matters – whether person’s interests will be significantly adversely affected if a manager is not appointed – suitability of applicant to be appointed as manager – powers of manager
List of Legislation: Guardianship and Management of Property Act 1991, ss 4, 8AA, 8AB, 8AC and 10
Tribunal: Ms L. Crebbin, General President
Ms A. Proctor, Member
Date of Orders: 24 April 2013
Date of Reasons for Decision: 24 April 2013
AUSTRALIAN CAPITAL TERRITORY )
CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: GT 21 of 2013
In the matter of an application re:
Z, a missing person
ORDERS
Tribunal : Ms L. Crebbin, General President
Ms A. Proctor, Member
Date : 24 April 2013
Z’s Mother is appointed as manager to manage all of the property of Z (the missing person).
The manager may exercise all the powers that the missing person would have been entitled to exercise in relation to his property if he were not missing and were available to exercise powers in relation to his property.
The manager may make all decisions necessary to ensure that as far as possible, the missing person’s financial obligations are met and to prevent the wasting of the missing person’s financial resources.
The manager may liaise with entities including, but not limited to, Centrelink, and make any decisions required in relation to the missing person’s entitlement to social security benefits and in relation to obligations such as taxation obligations.
The manager has power to do the things necessary to give effect to decisions about the matters set out above, including (but not limited to):
(i)giving or receiving information; or
(ii)giving consent to investigations or assessments; or,
(iii)participating in negotiations; or
(iv)signing documents.
This appointment is made for a period of two years from the date of this order.
The manager must immediately notify the Tribunal if Z is found while these orders are in place.
......................................
Ms L. Crebbin
General President
Statement of Reasons
The ACT Civil & Administrative Tribunal held a hearing on 9 April 2013 to consider an application made by Mrs L (the applicant) under section 8AA of the Guardianship and Management of Property Act 1991 for the appointment of a manager of the property of Z.
The applicant is the mother of Z. He turns 39 years old in 2012. On 12 October 2012, the applicant reported to Police that Z was missing. The circumstances that led her to make that report and the steps that have been taken to locate Z since then are set out briefly below.
The Guardianship and Management of Property Act 1991(the Act) authorises the making of orders appointing guardians and financial managers for adults who have a condition that impairs their ability to make decisions. Section 8AA of the Act gives the tribunal an additional power to appoint a manager for the property of a person who is missing. This is an unusual power for a tribunal to have[1]. It has only been used in the ACT once before. These reasons have been produced to document how the tribunal deals with such applications.
[1] As at the date of preparation of these reasons, Victoria is the only other jurisdiction to have such a provision in its guardianship legislation. Part 5A of the Guardianship and Administration Act 1986 is modelled on the ACT provisions.
Section 8AA(4) permits the tribunal to make an order appointing a manager with powers that are necessary and desirable to allow the manager to make decisions about the property of a missing person, as though the missing person was a protected person under the Act. The tribunal cannot consider an application if the Public Trustee has already applied to the Supreme Court for an appointment or if the Supreme Court has made an order appointing the Public Trustee to manage the person’s property under the Public Trustee Act 1985.[2]
[2] Section 8AA(2)
The tribunal must be satisfied of four things before an order can be made. Section 8AA(1) provides:
(1) This section applies if the ACAT is satisfied, on application, that—
(a) someone is a missing person; and
(b) the person usually lives in the ACT; and
(c) while the person is missing, there is, or is likely to be, a need for a decision in relation to the person’s financial matters or property; and
(d) the person’s interests will be significantly adversely affected if a manager is not appointed.
Section 8AA (3) specifies what is required in order to be satisfied that the person is indeed missing. It says:
(3) The ACAT may be satisfied that a person is a missing person only if
satisfied that—(a) it is not known whether the person is alive; and
(b) reasonable efforts have been made to find the person; and
(c) for at least 90 days, the person has not contacted—(i)anyone who lives at the person’s last-known home address; or
(ii) any relative or friend of the person with whom the person is likely to communicate.
Examples of contact
1 telephone call
2 physical sighting of the person
Section 8AB lists the people who are entitled to make an application – the list includes a relative. This application clearly complies with that requirement.
The application was accompanied by a detailed covering letter and a copy of a statement that the applicant made to police. When it was received, the Tribunal contacted her and asked her to provide more information about where Z had lived over the last decade, his last known address and her last contact with him; as well as contact details for the police officer with whom she had been liaising and each other person with whom Z usually had contact.
A hearing date was set. Letters were sent to his parents, his sisters and brother and to a church minister at whose church he was staying when he last contacted his parents. The letters advised the recipients of the hearing date and also said:
Before the tribunal can appoint a person to manage the property of a missing person, it must be satisfied that the person has not had any contact with someone they are likely to have contacted within the last 90 days. The applicant has advised that you are a person with whom Z had contact in the past and the tribunal wishes to have information about your last contact with him.
You are invited to attend the hearing or to write to the tribunal to indicate when you last had any contact with Z in person, by telephone or in writing including by email or text message.
The police officer was contacted. He provided details about the file and reports he had created in relation to his investigation. The Tribunal Registrar then issued a subpoena to the police requiring the production of the file.
The hearing was attended by Z’s parents and sisters. Ms Amy Eager, Legal Aid ACT, represented the family. Each participant was asked questions by the tribunal and at the end of the hearing, Ms Eager made submissions.
The tribunal had a number of relevant documents including the applicant’s letter, police statement and an email, emails from both sisters, an email from Z’s brother and a letter from the minister of a church. The subpoenaed documents did not arrive in time for the hearing. The applicant agreed that the tribunal should consider the subpoenaed documents in chambers when they arrived. The tribunal said that it would re-list the hearing if anything in the subpoenaed material needed further consideration. The police file arrived at the tribunal the day after the hearing. There was nothing in the documents that required further consideration.
The tribunal has considered each criterion in s 8AA(1) in turn. Nothing said in oral evidence or contained in the documents received was controversial or in conflict. All information was accepted and considered by the tribunal in making its decision. The information considered is summarised under each heading below.
Is Z a missing person?
The applicant contacted police and reported Z as missing on 12 October 2012 because she had not heard from him since 5 August 2012 when he telephoned her. He told her that he was staying at a church in Tasmania. She thought that he seemed in good spirits.
As a result of subsequent police enquiries it is known that three phone calls were made to the applicant’s home from Z’s mobile telephone on 12 August 2012. The applicant answered the phone but there was no answer from the caller. There have been no telephone calls or any other contact from Z to his parents since.
The lack of contact is uncharacteristic. Z has an agreement with his mother that he will contact her at least once each month. He also in the past, without fail, contacted his parents on important days such as birthdays, father’s day and at Christmas.
His sister A, last had contact with him by telephone in June 2012. She sent text messages to him a couple of times after that but has had no reply. His sister B, also last heard from him around that time. His brother last saw him just before Christmas 2011 at the applicant’s home and last spoke to him by telephone around May/June 2012.
Family members have contacted all of Z’s friends and acquaintances, but no one has seen him or heard from him for some time and certainly not after August 2012. Contact has also been made with the coroner’s office in each state and territory. Z has not been identified as a deceased person. Contact has been made with hospitals and mental health services in Victoria, Tasmania and the ACT. No organisation has a recent record in relation to him. His profile was included on the National Missing Person’s Register and on a Facebook page created about him in November 2012. These steps have not led to any contact, any record about him or any report of a sighting of him.
The minister wrote to the Tribunal as follows:
Z stayed at the Church for some weeks, then moved on and we haven’t heard from him since late August 2012. His mail has kept arriving and we have sent it on to his mother.
I note that while the minister refers to hearing from Z in late August 2012, other records do not support a late August date but rather, an early to mid August date. What is clear is that the minister has not had contact with Z since he “moved on”, which appears to have been on, or shortly before, 15 August 2012.
The mail that was sent to the church addressed to Z included his pension card. It was accompanied by a note from someone called Shelley from the company that operates the boat, Spirit of Tasmania. The note said that the card was found on board the “Spirit 2” on the vehicle deck. We note that Z did not have a car. The letter was postmarked 5 September 2012. His pension card expired in January 2013 and was automatically renewed by Centrelink. He has not contacted Centrelink to arrange a replacement card, nor was he responsible for the steps that caused another card to issue.
Tasmania police have established the following:
·the Department of Immigration has Z listed as being on shore (i.e. not out of the country);
·he has one open bank account;
·his bank account was last accessed at about 4pm on 15 August 2012 at an ATM in Tasmania. Centrelink payments continue to be credited to his account and automatic deductions continue to be debited for two debts;
·the address on his Medicare Card was updated to the address of the church in Tasmania on 6 August 2012. Neither his Medicare card nor the Pharmaceutical Benefit Scheme, has been used by him after 15 August 2012;
·airlines have no record of him travelling after 15 August 2012;
·on 14 August 2012 he paid cash at a Visitor Centre for an apartment in Tasmania for one adult staying on the night of 14 August 2012;
·on the following day, he booked a one way ticket at the Visitor Centre for travel on the Spirit of Tasmania from Devonport to Melbourne on 15 August 2012 departing at 7.30pm. The ticket was for an Ocean Recliner seat. These are reclining chairs in a public lounge area. The shipping company cannot confirm if he embarked or disembarked because the relevant records are only kept for a month and had been destroyed by the time he was reported as missing;
·records from his mobile phone provider of outgoing calls for the period 1 August 2012 to 31 August 2012, show that no phone calls were made after 5.42 pm on 15 August 2012.
Considering the information set out above, the Tribunal is satisfied that reasonable efforts have been made to find Z; that he has not, since at least 15 August 2012, contacted anyone who lives at his last known address, or any friend or relative that he is likely to usually contact and that it is not known if he is alive. On that basis, we are satisfied that he is a missing person.
Does Z usually live in the ACT?
Z was born in the ACT and, for the most part, lived in the ACT with his parents until about 2008. Since then he has lived what can be described as an itinerant lifestyle in Melbourne, Canberra, Adelaide, Sydney, on the NSW South Coast and Tasmania. He regularly returns to his parent’s home where a room is maintained for him, staying for a few to several weeks before moving on again. Apart from some periods living with his sisters, he usually stays with friends, in short term accommodation places (hostels and the like) and with religious communities; rather than at any address of his own. He has also spent some time in a mental health facility in Victoria. Family members say that he rarely stays in any one place for more than a few weeks.
While the applicant was vague about specific dates or time periods, her evidence was supported by the recollections of family members. The tribunal accepts that Z moved to Melbourne in 2008, staying at various places (including in a hospital). Towards the end of 2010 he stayed with a sister on the NSW coast for a few months. In early 2011 he stayed with his parents before leaving to stay for a few months with another sister on the NSW coast. In the second half of 2011 he went to Melbourne, returning from there to Canberra before Christmas. He stayed for several weeks. He went back to Melbourne and a short time later, in February, travelled overseas. He was to be overseas for six weeks but returned to Canberra after 5 weeks. He stayed in Canberra for several weeks. In May/June he telephoned his brother. He was in Sydney at the time of that call. At some time, perhaps before this phone call, he was in Melbourne. His mother thought that he went to Melbourne in May 2012. From Melbourne he travelled to Tasmania. On some date that is not clear, he arrived at the church in Tasmania and stayed at the church premises. He told his mother that he was staying at the church when he called her on 5 August 2012. We know that he changed his address on his pension card to the address of the church on 6 August 2012. He was gone from there by 15 August 2012.
Ms Eager submitted that none of the places at which Z has stayed since 2008 could be regarded as a settled residence or a place that is his home or a place at which he “usually lives”. He does not have a home or a residence in the sense that most people do. She submitted that in those circumstances, the tribunal could reasonable find that he usually lives in the ACT because he did so until 2008 and has continued to return to the ACT regularly since that time. It is the place to which he has the strongest connection. It is his home base through which he is connected to family. His parents’ home has a room that is “Z’s room”. He sought mental health services from a psychiatrist based in the ACT, even though he was travelling in other places. Although there is evidence that he had, at the beginning of August, notified a change of address to the church in Tasmania, that could not be regarded as his home address given that he departed from there a short while later.
I could not identify any relevant judicial consideration of the meaning of the words “usually lives” although I note that in the Dictionary to the Legislation Act, the phrase “home address” is defined to be the address of the place at which a person usually lives. In the unusual circumstances of this case, we are persuaded by Ms Eager’s submission that we should find that Z “usually lives” in the ACT given the years of his residence here up to 2008, his regular return to his parent’s home and the lack of any other place that could be rightly considered to be his “home address”.
Is there a need for decisions about his financial matters and will his interests be significantly adversely affected if a manager is not appointed?
Z’s financial affairs are simple – his sole source of income is a disability support pension. That continues to be paid into his bank account although he has not accessed it since 15 August 2012.
The applicant has been able to ascertain from bank statements and letters of demand that he had a Mastercard debt. The debt has been paid off because of an automatic debit from his bank account and because the card has not been used while he has been missing. The automatic debit continues even though the debt is paid and the applicant has notified the relevant financial institution that Z is missing. The payment cannot be stopped unless he authorises it. His Mastercard is now in credit in a sum in excess of $400.
There is a very large Telstra account – in excess of $6,000 which is accruing interest and at least one other debt which a creditor is seeking to recover and which continues to earn interest.
The applicant has been unable to enter into arrangements with Mastercard, or the creditors, or to liaise with Centrelink on Z’s behalf. The entities appropriately indicate that they cannot deal with her because she does not have lawful authority to receive information, sign documents or make any changes to Z’s financial arrangements.
In the absence of such authority he will continue to accrue a credit that cannot be accessed to pay debts that continue to increase. While his finances are simple, the increasing indebtedness, which could be remedied by changes to his automatic debits, does significantly adversely affect his interests.
The tribunal is satisfied that the requirements of s8AA(1)(c) and (d) are met in this case.
In summary, the Tribunal is satisfied that:
(i) Z is a missing person and;
(ii) he usually lives in the ACT, and;
(iii) there is a need for decisions to be made in relation to his financial matters and his property, and;
(iv) his interests will be significantly adversely affected if a manager is not appointed to make decisions in relation to his financial matters and his property.
Consequently, we are able to appoint a manager to manage his property.
Who should be appointed?
When considering who should be appointed as Z’s manager, we are required to consider the factors set out in section 10 of the Act. The applicant has provided her written consent to appointment and has informed the tribunal, on oath, that she has not been convicted of an offence involving violence, fraud or dishonesty; she has not been refused or removed from appointment as a manager, she is not bankrupt nor is she personally insolvent. As a result of her answers to questions during the hearing, we are satisfied that she will follow the decision making principles set out in section 4 of the Act and that she is otherwise suitable for appointment because of her knowledge of her son’s financial affairs.
What powers should the manager have and what should be the term of the order?
Section 8AC provides that a manager may be given the powers that the missing person would have if he were able to exercise those powers, but requires that the tribunal specify the types of decisions that the manager can make and the property that can be the subject of decisions. In this case, it is appropriate that the manager have power to make decisions about all of Z’s property – she would not be able to achieve what is required to address the Mastercard credit and the various debts otherwise.
We are satisfied that the manager should be given power to make decisions to ensure that, as far as possible, Z’s financial obligations are met and that his resources are not wasted, as well as powers to liaise with entities and make any decisions required in relation to his entitlement to social security benefits and other obligations such as taxation obligations. The manager should also have power to do things that are necessary to give effect to her decisions.
We are required by section 8AC to state the term of the appointment to a maximum term of two years. Given the extent of Z’s debts, it is appropriate that the term of the order be set at two years and that a further order be made requiring the manager to immediately notify the tribunal if Z is found so that the order can be reviewed.
Sgd. Ms L. Crebbin, General President
For and on behalf of the Tribunal
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