INM & ODM - [2024] QCAT 369

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

INM & ODM [2024] QCAT 369

PARTIES:

In applications about matters concerning INM & ODM

APPLICATION NOS:

For INM: GAA3963-24, GAA8177-24, GAA8180-24 & GAA8181-24
For ODM: GAA10390-23, GAA4933-24, GAA4937-24, GAA8182-24 & GAA8183-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

30 August 2024

HEARING DATES

The hearing for INM commenced on 30 July 2024 and resumed on 22 August 2024.

The hearing for ODM commenced on 10 May 2024, and resumed on 30 July 2024 and 22 August 2024.

HEARD AT:

Brisbane

DECISION OF:

Member Kanowski

ORDERS:

In each case:

1.     The guardianship order made by the tribunal on [31 July 2023 for INM / 11 May 2023 for ODM] is changed by removing the Public Guardian as guardian and by making the following appointments of guardians.

2.     [The mother of the adult] is appointed as guardian for [the adult] for the following personal matters:

(a)     accommodation;

(b)     visits with [the father of the adult]; and

(c)     the provision of services including in relation to the National Disability Insurance Scheme except for the decisions to be made by [the father of the adult].

3.     The appointment of [the mother of the adult] as guardian for the matter of visits with [the father of the adult] is subject to the following terms, all of which are subject to any different agreement in writing from time to time between [the mother of the adult] and [the father of the adult]:

(a)     time spent with [the father of the adult] is to occur at his home or at a place specified by him;

(b)     there must be at least two weeks spent with [the father of the adult] in December 2024 including 25 December;

(c)     in each calendar year commencing with 2025, time spent with [the father of the adult] must total at least ten weeks; each visit must be at least two weeks in length; and at least three weeks must be in each half of the year; and

(d)     visits with [the father of the adult] are to include 25 December in each even-numbered year.

4.     [The father of the adult] is appointed as guardian for [the adult] for the following personal matter:

(a)     the provision of services including in relation to the National Disability Insurance Scheme for decisions about services and service providers while [the adult] is staying with [the father of the adult].

5.     The appointments made in orders 2 and 4 remain current until further order of the tribunal. The appointments are to be reviewed in five years.

6.     The appointment of [the mother of the adult] as administrator for all financial matters for [the adult] is continued.

7.     The tribunal dispenses with the requirement for the administrator to provide a financial management plan.

8.     The administrator must provide to the tribunal within 40 days of being notified of a review of her appointment:

(a)     a copy of all bank statements and any term deposits for the past year;

(b)     a list of the current assets and liabilities of [the adult];

(c)     a fortnightly budget of income and expenditure of [the adult]; and

(d)     if the administrator is seeking a continuation of her appointment, a signed declaration as to continuing appropriateness for appointment.

9.     The appointment of the administrator remains current until further order of the tribunal. The appointment is to be reviewed in five years.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – REVIEW, REVOCATION ETC – where administrator has provided inconsistent information – whether administrator should be removed

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – REVIEW, REVOCATION ETC – where guardian has decided that adult should have increased contact with a parent – whether guardian should be removed

Guardianship and Administration Act 2000 (Qld), s 5, s 11, s 11B, s 12, s 31

Human Rights Act 2019 (Qld), s 13, s 19, s 24, s 25

APPEARANCES & REPRESENTATION:

INM attended briefly on 30 July 2024. His representative Vivien Boyd of ADA Law appeared on both hearing days. The tribunal had appointed ADA Law as representative for INM under section 125 of the Guardianship and Administration Act 2000 (Qld).

ODM attended on 10 May 2024 and 30 July 2024 and for part of the day on 22 August 2024. Vanessa Krulin of ADA Law appeared on 30 July 2024 and 22 August 2024. The tribunal had appointed ADA Law as representative for ODM under section 125 of the Guardianship and Administration Act 2000 (Qld).

The Public Guardian was represented by Ms S Christensen who is a Principal Guardian.

The mother of the adults self-represented on 10 May 2024 and 30 July 2024, and was represented by Ms D Pendergast of counsel instructed by Swanwick Murray Roche Solicitors on 22 August 2024.

The father of the adults self-represented on all three hearing dates.

Various other persons who are not active parties also attended.

REASONS FOR DECISION

Introduction

These reasons relate to two separate cases heard together because of overlapping issues. One case is that of ‘INM’, a young man aged 20. The other is that of ‘ODM’, a young man aged 19. They are brothers. They each have autism spectrum disorder and intellectual disability.
They grew up with their parents and their older brother in a regional city. The parents separated seven years ago. Family law orders were made. The mother was the primary carer and the boys spent time with their father. The mother and the sons moved to Brisbane almost three years ago. The father has remained in the regional city. While still at school, the sons spent school holiday time with him. The two homes are not nearby. The drive takes nine or ten hours.
In each case, at or around when INM and ODM turned 18, the tribunal has made guardianship and administration appointments for the young men, or ‘adults’ to use the expression in the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’). This has included the Public Guardian being appointed to decide with whom each adult has ‘contact and/or visits’. The mother has been appointed administrator, and guardian for restrictive practices, for each adult. In INM’s case, after the first year, the tribunal also appointed each parent a guardian for a specific matter: the father for the provision of services including in relation to the National Disability Insurance Scheme (‘NDIS’) for services provided in the regional city, and the mother for the provision of services including in relation to the NDIS except for those decisions to be made by the father.
In the present proceedings, the appointments of the guardians and the appointments of the administrators are being reviewed. Reviews relating to restrictive practices have already been decided.
The most contentious issue relates to how much time INM and ODM should spend with each parent, until the point when they are ready to live away in supported independent living accommodation. Both have finished school, so the constraint of school terms no longer applies.
The mother’s position is that it is in the interests of each adult that they should have a main home base – with her and her husband – and holidays with their father. The father’s position is that it is in the interests of each adult to spend approximately half their time with him and half their time with their mother.
The Public Guardian while guardian for contact / visits for each adult has engaged in extensive consultation before reaching decisions and then sometimes adjusting decisions in response to new information. The end result has been decisions that INM and ODM spend increased time with their father. In the period since late 2023:
(a)INM and ODM each spent three or four weeks at their father’s home around Christmas time;
(b)in April / May, ODM spent six weeks at his father’s home, while INM spent four weeks, returning earlier than his brother because of scheduled dental treatment in Brisbane;
(c)in July, each spent two weeks at their father’s home; and
(d)they are due to spend the period 15 September to Boxing Day at their father’s home.
The Public Guardian has not made decisions beyond the end of 2024 because it has not known whether its appointments will continue.
ODM’s goal, according to his mother, is to live not with either parent but with a partner. He does not yet have a partner. It is anticipated that ODM will require supported independent living accommodation. That would require increased NDIS funding, planning and preparation. A move into supported independent living is not imminent but likely at some point in coming years. The father says that ODM has told him he would like the father to move to Brisbane, and ODM would then move in with the father. However, the father does not plan to move to Brisbane.
INM is more profoundly disabled. He has extremely limited speech. Further, it is said that he is recovering from severe trauma experienced in school. He is wary about re-engaging with the wider world. He has epilepsy. On medical advice, an oxygen tank always accompanies him in case it is needed after a seizure. The mother and her husband are planning to build a house, in Brisbane, with adjacent separate living quarters for INM, carers and any guests (including the father if he wishes). The mother says this would give INM independence but ensure that family are close by in case of medical emergencies. The mother says the project remains in the planning stage, and it would be 18 to 24 months before the house could be built. She says she has not yet consulted with the father about the idea but intends to do so once details are firmer.
There is entrenched conflict between the parents. They do not communicate verbally, but only through a parenting app. They can and do negotiate and resolve some issues. However, they both acknowledge it is highly unlikely that they would ever be able to reach agreement about some fundamental issues such as how much time their sons should spend with each parent. Ms Christensen told the tribunal that it has been the experience of the Public Guardian that the parents do not agree with each other on many topics.
Another issue in the reviews is whether – assuming administrators are required into the future – the mother should remain administrator or whether that responsibility should be transferred to the Public Trustee.
An issue which is less contentious relates to responsibility for decision-making about NDIS plans and services.
The mother submits that she should be appointed guardian for each adult to decide how much time INM and ODM spend with each parent. She submits that she should remain administrator for both of them.
The father submits that the Public Guardian should remain the decision-maker for each adult in relation to time spent with each parent. He submits that the Public Trustee should be appointed administrator for each adult.
I will describe later the submissions of the parents as to services including NDIS and the submissions of the adults’ representatives and the Public Guardian on various issues.

Capacity

Capacity, for a person for a matter, means the person is capable of:
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c)communicating the decisions in some way.[1]
[1]Guardianship and Administration Act, Schedule 4, definition of ‘capacity’.
Capacity is presumed until the contrary is proven.[2]
[2]Guardianship and Administration Act, s 11(1).
Capacity may differ according to the type of decision to be made.[3] It may also differ according to the support available from members of the adult’s existing support network.[4]
[3]Ibid, s 5(c)(i).
[4]Ibid, s 5(c)(ii).

Capacity of INM

The most recent report about INM’s capacity is by psychologist Kiaya Armstrong dated 21 July 2023. Ms Armstrong considers that INM is unable to make even simple personal or financial decisions. She notes his limited ability to understand consequences, and his inability to understand finances. His speech is extremely limited. A similar assessment was made by general practitioner Dr Nadim Cody in 2021.
The evidence of the health professionals is not challenged, and I accept it. I find that the presumption of capacity is rebutted.

Capacity of ODM

Psychologist Dr Kathie Overeem prepared a report about ODM’s capacity on 28 February 2023. She said he is able to make simple but not complex decisions in personal and financial matters. He presents with low functioning in daily living skills. He experiences substantial difficulty resisting impulses and considering consequences.
ODM’s representative notes that ODM can effectively express his wishes and preferences verbally. She submits that, with support, he can make decisions about where he lives. Neither of his parents endorse that submission. In a later report, dated 13 April 2024, Dr Overeem and another psychologist described ODM’s thoughts about spending more time with his father, but the context indicates this was about visits rather than choosing a home.
I accept the opinion given in the earlier report that ODM lacks the capacity to make complex decisions. I find that the presumption of capacity is rebutted accordingly for both personal and financial decisions. An accommodation decision is a complex decision, in my view, as it involves considering and weighing up a number of competing factors.

Statutory framework for appointments of guardians and administrators

The right of an adult with impaired capacity to make their own decisions should be restricted to the least possible extent.[5] The adult also has the right to adequate and appropriate support for decision-making.[6] The tribunal may appoint a guardian or administrator for a person with impaired capacity if, relevantly, there is a need for a decision and, without the appointment, the needs of the adult will not be adequately met or their interests will not be adequately protected.[7]
[5]Ibid, s 5(d).
[6]Ibid, s 5(e).
[7]Guardianship and Administration Act, s 12(1).
The tribunal must, to the greatest extent practicable, take into account the views, wishes and preferences expressed or demonstrated by the adult, and the view of any member of the adult’s support network.[8]
[8]Ibid, s 81(2).
General principles are set out in the Guardianship and Administration Act.[9] The principles are wide-ranging. They include, in summary:
[9]Ibid, s 11B.
(a)taking into account the adult’s dignity and worth;
(b)respect for individual autonomy;
(c)encouraging self-reliance;
(d)taking into account the importance of full participation in society including taking part in activities enjoyed in the community and performing roles valued by society;
(e)acknowledging the importance of maintaining the adult’s existing supportive relationships;
(f)respecting the role of families, carers and other significant persons in supporting the adult to make decisions;
(g)respecting the importance of maintaining the adult’s values including religious beliefs;
(h)respecting the adult’s privacy;
(i)promoting and safeguarding the adult’s rights, interests and opportunities; and
(j)maximising the participation of the adult in decision-making.
Relevant rights recognised in the Human Rights Act 2019 (Qld) (‘Human Rights Act’) include, in summary:
(a)a person’s freedom to choose where they live;[10] and
(b)protection of families as the fundamental group unit in society.[11]
[10]Human Rights Act, s 19.
[11]Ibid, s 26(1).
A human right may be limited under law but only to reasonable and demonstrably justified limits.[12]
[12]Ibid, s 13.
The appointment of a guardian or administrator inevitably reduces an adult’s privacy, because the guardian or administrator has a right to information about the adult.[13] A guardian or administrator will typically obtain considerable information, including sensitive information, about the adult when performing their duties. However, while this affects the adult’s dignity and privacy, as is therefore relevant under the general principles, I do not consider that this involves a limitation of the privacy right under section 25 of the Human Rights Act. That right relates to unlawful or arbitrary interference with privacy.
[13]Guardianship and Administration Act, s 44.
Similarly, the appointment of an administrator affects autonomy, which is another concern of the general principles. However, it does not involve an arbitrary deprivation of property, against which section 24(2) of the Human Rights Act protects.
The Public Guardian may be appointed guardian for a matter ‘only if there is no other appropriate person available for appointment for the matter’.[14]
[14]Guardianship and Administration Act, s 14(2).
Section 15 of the Guardianship and Administration Act sets out factors the tribunal must consider in deciding whether a person is appropriate for appointment as a guardian or administrator. There are criteria relating to matters such as criminal history and bankruptcy, which do not feature as issues in the present cases. Factors which may be in issue include any likely conflicts of interest, compatibility, availability and accessibility, competence, and whether the person is likely to apply the general principles.
Any appointment – other than the appointment of the Public Trustee or a trustee company – must be reviewed by the tribunal at least every five years.[15]
[15]Ibid, s 28(1).
When conducting a review, the tribunal must revoke the appointment of a guardian or an administrator unless satisfied it would make an appointment if there was a new application for appointment before it.[16] If the tribunal is satisfied that there are appropriate grounds for an ongoing appointment, it may continue an existing appointment or it may change the appointment.[17]
[16]Ibid, s 31(2).
[17]Ibid, s 31(3).

Accommodation and visits

I use accommodation in this case to mean where an adult lives and visits to mean time spent away from home with a parent. The parties have sometimes referred to the latter as contact, but I will reserve that term for contact between a parent and an adult while the adult is staying with the other parent. I have accordingly adapted my description of evidence and submissions from some of the original language used.
Some parties have noted that in a case such as the present ones, the difference between accommodation and visits can become unclear, especially if an adult spends roughly equal time with each parent. Arguably, the Public Guardian has made not only contact decisions but also accommodation decisions.

Mother’s position

As mentioned above, the mother thinks that INM and ODM should live mainly with her, and spend holiday time with their father, similar to the pattern while they were at school. The adults spent eight weeks with their father in 2022, and ten weeks in 2023. In an application filed in May 2024 in relation to ODM, the mother said ‘no additional time outside of the 10 weeks of school holidays is warranted for 2024’.[18] In an application filed in July 2024 in relation to INM, the mother sought ‘directions that continue to maintain his relationship with his dad as it has been for the last 6 years, with a maximum of 10 weeks contact visit with his dad’.[19]
[18]Document H19 on ODM’s file.
[19]Document H28 on INM’s file. Emphasis omitted.
The mother argues that most people in our society have a single home base, around which they develop social connections over time. Most people are not split between two homes. She points out that the young men engage in therapy and programs in Brisbane. Only some of these can be done online while the young men are away, and online is less effective than face to face. Further, the young men have rapport with their carers. Absence for several months at a time means that support workers need to find other work, and may not be available when the young men return.

INM has four support workers in Brisbane. They are engaged individually rather than as employees of a firm. Three have been with INM for two years. There is one main worker who spends approximately 40 hours per week with INM. The mother says that consistency in care is vital for INM. He spends most of his time at home. The support workers focus on incrementally increasing INM’s independent living skills: little things such as learning to put dirty dishes in the sink. INM is also gradually increasing his wider social engagement. He goes out with support workers. He goes out for drive-through food at McDonalds or to bowling or a park. He goes out once a week for a communication skills group conducted by a speech therapist and other staff. He has music therapy at home once per week, which is a highlight for him. Music therapy aims to develop various skills. He also has occupational therapy at home fortnightly. There was limited success in conducting music and occupational therapy sessions online while INM was at his father’s place, and two scheduled online music therapy sessions were missed.
ODM goes out more, accompanied by support workers mostly from a particular firm. This includes social outings such as trips to theme parks. ODM does the planning for his Friday outings, known as Fun Friday. He also participates in programs and therapy. ODM loves animals, and his favourite program is Happy Paws Happy Hearts, which he attends two mornings per week. It involves voluntary work with rescue animals. He is in the introductory level but wants to progress to higher levels which might lead to work opportunities. If ODM is away for several months, there would be a need to keep paying to preserve his place, or he could drop out and re-enrol but with no guarantee of a place. Two days per week ODM attends a job skills program which runs across two years but has breaks during school holidays. This course cannot be attended online. The mother believes a gap of four months would be very detrimental. ODM might have to repeat the first year. The National Disability Insurance Agency may or may not fund a repeat year. Fortnightly, ODM attends occupational therapy focussing on emotional regulation and life skills. ODM is also attending a dating program which runs one afternoon per week for 12 weeks finishing at the end of September. There is an end-of-course gathering which ODM will miss if he is at his father’s place. This course has been a temporary replacement for physiotherapy. On Saturday mornings ODM usually does a park run, either as a walker or a volunteer, then attends group get-togethers for clients of the main support company. On alternate Sunday afternoons, ODM attends a social skills group for young men.
The father had raised in his material that when ODM is with him, they attend church. This continues ODM’s long connection with religious beliefs and the Baptist congregation. The mother, when asked about any church attendance by ODM in Brisbane, said he has not expressed a wish to attend. She sometimes attends a church, which is independent Christian rather than Baptist, and she takes ODM with her.
The mother argues that the development of social skills and connections, and the gradual progress towards independence for both young men, will be hampered if their routines are disrupted by lengthy stays with their father. She says the father has talked about various options for programs and therapy in his area, but it seems he has not made any firm arrangements.
The mother says INM and ODM love their father, and it is important for them to spend time with him. However, she also says that as for the last several years it was holiday visitation, increasing visits to almost half of the time goes well beyond merely maintaining an existing supportive relationship.

Father’s position

The father says there are plenty of services available in the city where he lives. When INM and ODM are with him, support workers from a local firm support them. INM and ODM cope with the change from their Brisbane support workers. He has looked into various options for programs, such as Sailability for INM and, for ODM’s benefit, the possibility of a local farm enterprise gaining Happy Paws Happy Hearts accreditation. He has not yet been able to make definite arrangements because there has been a great deal of uncertainty about whether INM and ODM will be coming for long enough. For many months, there have been the pending proceedings in the tribunal in which the mother is seeking a reduction to holiday visits only. In her submissions to the Public Guardian, the mother proposed limiting visits to eight weeks per year, to occur in Brisbane rather than at his home.
There are local services which place people in jobs. The father says work will be important for ODM in the future because it involves interaction with people in everyday situations, not just with support workers. ODM can do park run in the father’s city. There is no dating program but ODM can be assisted one on one by support workers. However, the father believes that ODM would benefit from more socialising with other young people before progressing to dating.
The father says that over-reliance by the mother on individual support workers is misguided. Lasting connections are with family, not paid support workers.
The father described the activities of the young men when they have visited. Support workers are engaged from approximately 9.00 am to 1.30 pm on weekdays while he is at work, though ODM does not have one on Fridays. The father can work from home in the afternoon, so he has not engaged support workers after 1.30 pm. ODM’s preferred activities with the support workers include going to pet shops, toy shops and the zoo, as well as bushwalking and swimming. INM also has support workers on Saturday, and for part of Sunday while the father and ODM attend church.
The father says it was difficult to accommodate music therapy for INM online because it was an afternoon session and the father had to work as well as assist both sons. It would have been more manageable if it had been a morning session where support workers could be involved. There were a couple of occasions when music therapy did not occur because he could not manage it. He has been cautious about increasing the hours of support workers partly because he does not want to be accused by the mother of overspending the NDIS budget allocations and partly because he does not want INM and ODM to have ‘wall to wall’[20] support workers.
[20]Oral submissions of the father.
ODM’s wishes change, the father says, but ODM has said he would like the father to move to Brisbane and ODM could then move in with him.

Other evidence and submissions

INM’s representative advised the tribunal that INM is not able to express a view about what time he should spend with each parent, or indeed any other topic in issue in the proceedings.
ODM was interviewed by his psychologist Dr Overeem together with psychologist Dr Rebecca Cockerton over two sessions for an April 2024 report commissioned by the mother in relation to the living situation. The psychologists observed that ODM is easily distracted but has a reasonable level of insight and judgment for a person with his conditions. When asked his views about visits, he tended to talk about the things he would miss out on when with one parent or the other. He indicated that he is happy in both households. However, he said he would like to spend more time with his father. The psychologists recommended that effect be given to this preference, and that the NDIS support coordinator assist in finding suitable programs for ODM in the father’s city.
ODM’s representative advised the tribunal that it appears that ODM’s living arrangements are of secondary importance to him. Pursuing his interests is of primary importance. ODM would like to spend more time with his father but is unenthusiastic if that would mean less opportunity to attend the Happy Paws Happy Hearts program. Also, ODM would prefer to visit his father without INM present.
Both representatives noted that neither adult is still at school, so there is opportunity for them to spend individual time with their father. They do not always have to be there at the same time. It has also been said that the adults are ‘triggering’ for each other, though this is not seen by all as a significant factor. The Public Guardian told the tribunal that individual time was an option it explored but neither parent was in favour.
At the tribunal’s hearing, the parents each said that, moving forward, they are open to the option of individual times. They explained that joint visits is a pattern that developed for practical reasons and became entrenched. There is a long drive between the two homes. Travel has always been by car, and air or train travel is not an option for INM. ODM could use public transport but would need to be accompanied or at least assisted at either end of a plane journey.
It is apparent that the Public Guardian engaged in extensive consultation before reaching its decisions about visits. It had to adjust and readjust as circumstances arose. It had the challenge of dealing with two highly articulate parents with often-conflicting views. It had the additional challenge of unaligned and relatively short appointment periods as guardian for each adult. It is apparent that the Public Guardian had regard to the general principles, and to the rights of the adults, and that it evaluated and weighed up competing factors.
Ms Christensen for the Public Guardian notes that the distance between the two homes has made the cases especially difficult. It is not a situation where an adult has a home with one parent and can spend frequent meaningful time each week or fortnight with the other parent.
The mother submits that she should be appointed guardian to make decisions about visits. Accommodation is long-settled: INM and ODM live with her, her husband and their brother. She understands the need for INM and ODM to continue their relationship with their father. However, the time needs to be tailored. INM and ODM should have a home base like others in the community. They have lived in Brisbane since late 2021.
Further, in INM’s case, the mother argues, consistency of care is important as he recovers from trauma and gradually builds up engagement with the wider community. If INM is absent for months, familiar support workers will inevitably have to move on.
In ODM’s case, the mother argues, he is in the process of developing skills and independence through his support network in Brisbane. He is working toward goals of employment and supported independent living. That process should not be derailed by extended stays in another city.
The mother says she meets the appropriateness criteria in section 15 of the Guardianship and Administration Act. The Public Guardian takes a long time to make decisions, the mother submits, whereas she as a parent can make prompt decisions.
The father argues that the continued appointment of the Public Guardian is more appropriate. It is an independent decision-maker which can consider the competing submissions of both parents. The Public Guardian has taken seriously the importance of the relationship between himself and the two adults. The adults can engage in meaningful programs and therapy when they stay with him, provided that the stays are longer than short holidays. Neither parent should be appointed to make decisions about where INM and ODM spend their time. If the mother is appointed, she is sure to limit his contact to eight weeks per year. There is no incentive for the mother to permit him to have more than eight weeks of visits per year because of the financial impact on her. This was a reference to the mother receiving carer allowance from Centrelink.
The father submits that INM and ODM need their father. Services are important but enduring relationships are vital. Having more than one base would not be unique to INM and ODM, he submits.
INM’s and ODM’s representatives both submit that the Public Guardian should remain appointed to decide visiting arrangements. INM’s representative said that if a decision needs to be made about accommodation, the Public Guardian should make it. Further, the lack of trust and communication between the parents means the mother is not appropriate for appointment as guardian for visits or accommodation.
ODM’s representative submits that an accommodation decision is not required. If one is required, ODM can make it with support.
Ms Christensen for the Public Guardian does not advocate for any particular outcome on appointments. However, she mentioned some concerns about the mother’s inflexibility and the mother’s efforts to ensure the father was not invited to an NDIS review meeting or accepted as an NDIS nominee. Ms Christensen says the Public Guardian does not have a preconceived idea about what it would decide if reappointed. To date, it has consulted extensively and taken into account the opinion of ODM’s psychologists. It has regarded the increased time with the father as a trial, to see how it works out. So there would be ongoing monitoring and consideration of all relevant factors before future decisions are made.

Tribunal’s conclusions

I should start by saying I do not accept the father’s suggestion that the mother has a financial motive. The carer allowance is not her main source of income. It could equally be speculated that the father has a financial motive to increase his contact, because he would become entitled to a portion of the carer allowance. In any event, I am satisfied that each parent has genuinely-held beliefs about what best serves their sons’ interests.
Some of the relevant principles are in tension, or arguably in tension, in the cases of INM and ODM, most notably the principles relating to existing supportive relationships, social inclusion and opportunities, interests, and adult’s preferences.
The mother has a point that increasing time with the father goes beyond maintaining the relationships as they have been for some years. However, in my view, deepening the relationships is likely to serve the adults’ long term interests. INM is unable to express a preference but ODM can. His preference is to spend more time with his father. However, that preference is quite qualified, I find, in the sense that it is less definite if it comes at the expense of activities that ODM values in Brisbane. Preference is important but, like each of other factors individually, not decisive. It is common ground that participation in programs is likely to assist the adults gain skills and greater independence but views can reasonably differ about the appropriate balance between formal programs and incidental learning. The father has a valid point that family relationships are, generally, deeper and more enduring than the relationships between adults and paid carers. The mother has a valid point that the splitting of time between two home bases makes it harder for programs to be completed and for trusted support workers to be retained.
The parents are both articulate, well-informed and persistent. That has enabled them to be strong advocates for their sons, who face very significant challenges in life, and for their family units.
Application of the relevant principles is a balancing act. Reasonable minds will differ about the weight that should be attached to this or that factor in a particular situation. Different decision-makers, each taking the principles into account, can reasonably come to different decisions on the same facts.
I accept that the Public Guardian has diligently approached its role, under difficult circumstances, and applied the relevant principles as it has seen fit. It has responded to emerging information and differing points of view. However, from a standpoint more detached from the pressures and demands of the forceful personalities of the parents, I am unable to share the view that something approaching roughly equal shared time between the households is, overall, a sound outcome of the balancing act. I am persuaded by the mother’s arguments that the better approach is to retain the single home base in her household, until either adult can move out, and for the adults to have holiday visits with their father. This enables programs to be completed online, or completed face to face. The father could organise programs and therapy in his city, but these would cut across longer-term programs in Brisbane. Having a Brisbane base enables each adult to continue in their favourite programs without lengthy interruptions or inferior online presentations. It fosters continuity of primary support workers which, I accept, is important for both adults, and especially important for INM. It creates a better environment for the development of connections within a community over time. It still allows for meaningful time with the adult’s father if INM and ODM spend significant holiday time with him.
ODM remaining based in Brisbane would not unduly interfere with his religious values and beliefs. He would still maintain a connection with the Baptist congregation in the city where he grew up by attending church with his father when visiting. It is not apparent that ODM seeks greater church involvement.
Overall, of course, the basing of the adults in their mother’s home with only holiday visits to the father’s home is less ideal than what might be achieved if the parents lived near each other and more time could be spent between households without impacting involvement in programs. However, that is not the situation.
I appreciate that the Public Guardian, if reappointed, would monitor the situation and adapt its decisions to circumstances. However, the Public Guardian has been prepared to allow substantial periods with the father, and it can be assumed that this would continue, at least on a trial basis. I regard that, on balance, as too disruptive to serve the long-term interests of the adults.
There is a need for decisions about where the adults live and when they visit the parent they are not living with. The critical question in deciding whether the guardianship appointments should be revoked, continued or changed, is whether without the appointment of a guardian, the needs of each adult will not be adequately met or their interests will not be adequately protected. I consider that to be the case. Without a guardian to decide accommodation and visits, the likelihood is that the adults would continue to live mainly with their mother and spend holiday time with their father. It can be anticipated that the parents are unlikely to agree upon arrangements, though I suspect the father would probably ultimately bend to the wishes of the mother to avoid stalemates or tussles. However, there would be an ongoing element of uncertainty and mutual distrust. The preferable course, to try to ensure that the interests of the adults are met, is to appoint the mother as guardian to decide where the adults live and when they visit their father. In the present cases, there needs to be someone with authority to decide. The mother is best placed to know the adults’ schedules in Brisbane, as well as of course the availability and preferences of other people in her family unit. She would be required to consult with the father. They can and do communicate via the parenting app, and they can continue to interact that way if they cannot return to more usual forms of communication. I do not accept the submission that the history of communication problems and distrust renders the mother inappropriate under the section 15 considerations. I find that the mother is likely to apply the general principles; her interests do not conflict with those of the adults; she is compatible with each adult; she is available and accessible to each adult; and she is competent to exercise the powers in question. She can make timely decisions and she can directly liaise with the father about whether separate visits on some occasions by each adult can be facilitated. Overall, I consider that the mother is appropriate for appointment. Accordingly, the Public Guardian cannot be reappointed.[21]
[21]Guardianship and Administration Act, s 14(2).

I appreciate, of course, that that the mother’s likely decisions will involve a reversion to the earlier amount of time spent by the adults with their father, and that this is at odds with the preference expressed by ODM. However, as I have noted, that preference is quite qualified. It would be open to a reasonable guardian to decide that it should not prevail over other considerations such as long-term interests of ODM.
An appointment may be on terms considered appropriate by the tribunal.[22] Generally, it is not desirable to fetter the discretion of a guardian, as the guardian must in any event apply the general principles and may have to respond to changing circumstances. However, in the present cases, I consider it desirable to impose terms to ensure that, subject to written agreement between the parents to the contrary from time to time, time spent with the father comes to at least ten weeks per year, that the time is neither too short nor too spaced apart, and that alternating Christmas days be spent with each parent. Perhaps the imposition of these terms is unnecessary but I consider it desirable in view of the history of conflict and distrust, and because of the high likelihood that for the foreseeable future it will be beneficial for the adults to spend at least ten weeks per year with their father at his home or other places of his choosing.
[22]Ibid, s 12(2).
At some point in coming years, a decision will have to be made about whether each adult moves into supported independent living accommodation, including in INM’s case, whether that accommodation should be the living quarters adjacent to the planned new home of the mother and her husband. The mother is best placed to make these decisions because of her familiarity with the adults and the services available to them. A decision that INM be accommodated in premises owned by the mother and her husband would be a conflict transaction if it involved the payment of rent to them. However, that should not preclude appointment in this case. The mother can apply to the tribunal for authorisation of a conflict transaction if she is considering making such an accommodation decision for INM.
The appointment of a guardian for accommodation and visits is a restriction on the decision-making autonomy of each adult, and limits their rights to choose for themselves where to live. However, I consider these limits are lawful, reasonable and justified. Neither adult is in a position to make the relevant decisions for themselves. Without a guardian, in all likelihood, one or both parents would make the decisions in any event.

Contact

This relates to contact between an adult and a parent when the adult is staying with the other parent. Currently, contact is through Facetime using the parents’ phones. Neither INM nor ODM has a phone. INM is unable to use a phone. The parents have differing views about whether ODM should have one.
Contact generally occurs within timespans on days specified by the Public Guardian. Ms Christensen told the tribunal that she had heard from each parent that the other had not always followed the schedule.
The father submits that no schedule can be perfect. Sometimes a parent cannot take a call, or one of the adults has gone to bed. However, being able to chat with ODM and see that INM is alright are important. He thinks it is necessary for ‘someone to set up a schedule’.[23]
[23]Oral submissions of the father.
The mother agrees that a schedule is useful. She thinks that she and the father could make their own schedule. They already message each other to negotiate an alternative time if there is going to be a problem with the scheduled time.
Contact is obviously important from the parents’ perspective, but my concern must be with the adults. Will their needs not be adequately met or their interests not be adequately protected without the appointment of a guardian to make decisions about contact? It can be assumed that contact is beneficial for the adults, and helps to maintain their relationships with their parents. A guardian can set up a schedule but cannot enforce compliance. On the other hand, the oversight of a third party presumably acts as an incentive for each parent to be generally compliant.
The sensible course would be for the parents to simply continue to follow the current schedule set up by the Public Guardian unless they agree to a different schedule. I believe the parents have enough common sense to do that, despite their history of conflict. Accordingly, I am not minded to continue the appointment of a guardian for this matter.

Services including NDIS

For INM, both parents are appointed as guardians in relation to the provision of services including in relation to the NDIS, but the father’s appointment is limited to decisions about services and service providers when INM stays with him, and the mother’s appointment excludes the area of the father’s appointment. There is no appointment in relation to services including NDIS for ODM.
The father says the arrangement for INM should be continued and used also for ODM. He says the arrangement for INM means not only that he can make decisions for when INM is with him, but he can also access information about INM’s NDIS plan online and can communicate with the National Disability Insurance Agency. Without the appointment, he says, the mother will use her position as NDIS nominee to exclude or minimise his involvement as she has done in relation to ODM.
The mother says that she has never sought to prevent the father from making decisions about the services provided when the adults are with him. She says she has simply explained that as NDIS nominee, she needs to sign any service agreements. However, she does not oppose split guardianship for ODM similar to that for INM.
The Public Guardian and the representatives for INM and ODM submit that the split model should be used for both adults.
I am persuaded that the split model meets the criteria in section 12 of the Guardianship and Administration Act. I do not consider that the appointments limit the adults’ human rights, though it does affect their autonomy. However, the benefits of appointing guardians outweigh the detriment of decreased autonomy.

Administration

Each adult receives a low rate of disability support pension, as a young person living with a parent.
The mother has been administrator for each adult since they were 18. She says that their expenses exceed their income, but she and her husband subsidise them. ODM spends more because he is out and about, so he has only approximately $4,000 in savings. INM has savings of approximately $15,000, and she wants to keep saving so that he will have funds to furnish the living quarters they are planning for him. The mother wishes to continue as administrator for both adults.
In an accounts form in April 2024, the mother said that ODM had expended $9,360 in accommodation costs since 11 May 2023. She included a similar entry for INM in an accounts form in July 2024. However, she said at the hearing that these were just notional figures, each being a fifth of the rent for the premises, on the basis that five adults reside in the house. She said that the actual contribution from each of INM and ODM has been much less: approximately $2,000 in the last 12 months.
In a balance sheet for INM for 2022/2023, supplied by the mother, liabilities of INM were shown, reaching by the end of the financial year almost $9,000 for credit cards held by her and her husband, and almost $5,000 described as a loan from her and her husband. However, she said at the hearing that these did not represent liabilities that she and her husband ever intend to recover from INM. They were included in the balance sheet by her bookkeeper, she says, because the bookkeeper was simply tracking all expenditure that the mother and her husband made on behalf of the adults.
The father says that the mother has never provided any of the adults’ funds for living expenses while they are with him. She has, though, asked him to pay for medication. He concedes that he has probably not asked her for funds, as he has not wanted to intensify conflict, but he submits that an administrator should proactively make provision for expenditure including when the adult is away from home.
The father contends that the Public Trustee should be appointed to ensure greater equity and transparency. He estimates that annual fees, after rebates, would be between $400 and $500 per year for each adult.
The mother says it is unclear how much the Public Trustee would charge but there is no need to incur cost when she can continue to manage the finances competently at no cost. Ms Pendergast for the mother says that if the father requests funds for the adults’ living costs, the mother will accommodate that request.
The representatives for INM and ODM submit that the Public Trustee should be appointed to achieve greater transparency and reduce conflict between the parents.
I am satisfied that I would make fresh administration appointments if there were new applications before me. There is an ongoing need for routine financial decisions, especially budgeting, to ensure the availability of funds and to guard against exploitation or overspending. Without an administrator, the needs of each adult would not be adequately met and their interests would not be adequately protected. Although the appointment of an administrator affects an adult’s autonomy, it is warranted in the present cases because otherwise the adults would suffer significantly from a lack of financial management.
In cases where an administrator is required, the tribunal can remove an existing administrator only if satisfied that the administrator is no longer competent or another person is more appropriate for appointment.[24]
[24]Guardianship and Administration Act, s 31(4).
I accept the explanations given by the mother about the liabilities shown in the balance sheet. I find that there are no actual liabilities, and therefore no conflict transaction. The amounts should not have been shown as liabilities of the adult in the document the mother submitted.
I also accept the mother’s evidence that the adults have paid considerably less rent than she indicated in the accounts forms. That is not to say that it would be inappropriate for them to pay a fifth of the rent, if they could afford it. It is unfortunate that the mother included a figure in the accounts that she says was merely notional.
It is common ground that the mother did not supply any of the adults’ funds to the father for living expenses. This is, however, understandable and not necessarily objectionable in circumstances where the father did not request funds, the mother’s experience has been that parental subsidisation is required, and she would have general awareness of the father’s ability to subsidise. I anticipate that having now been made aware of the father’s concerns, she will ensure that a proportionate amount of the adults’ living funds are provided to the father in future.
While criticisms have properly been made of the mother’s presentation of information, I consider that she remains competent. I consider she is more appropriate than the Public Trustee because she does not (and cannot) charge fees. She meets the appropriateness factors in section 15 of the Guardianship and Administration Act. As previously discussed, a conflict of interest will arise if the mother decides that INM should rent accommodation from the mother and her husband. However, the mother would be obliged to apply to the tribunal for authorisation of a conflict transaction. The pros and cons of the proposal would be considered in that proceeding. It is appropriate to continue the existing administration appointments.
Under section 20 of the Guardianship and Administration Act, I have dispensed with the requirement for a financial management plan in view of the simplicity of the adults’ financial affairs.

Information from other persons

I have also taken into account information provided in writing or orally from various other persons including the adults’ older brother, grandparents, other relatives, and family friends. This information has generally been in the nature of attesting to the honesty and commitment of one of the parents, and sometimes confirming that parent’s assessment of the shortcomings of the other parent. There has also been some background information from service providers.
It is not necessary to discuss the information in detail because the critical information in these cases is that which I have discussed, with this additional evidence tending to be merely subsidiary, confirmatory, or of little relevance.

Conclusion

The main change occasioned by the reviews is to shift responsibility from the Public Guardian to the mother about when the adults visit their father. I am conscious that the mother is likely to promptly make new decisions on that topic which will overtake the decisions made by the Public Guardian for the adults to spend three months with their father from mid-September. However, as discussed above, these are decisions reasonably open to a guardian under the general principles.