K v K
[2000] NSWSC 1052
•3 November 2000
CITATION: K v K [2000] NSWSC 1052 CURRENT JURISDICTION: Equity Division
Protective ListFILE NUMBER(S): SC 38/2000 HEARING DATE(S): 3 November 2000 JUDGMENT DATE: 3 November 2000 PARTIES :
The names of the parties are suppressed in cases in the Protective ListJUDGMENT OF: Young J
COUNSEL : S Winters (P)
M Fraser (D1)
L Rogers (Solicitor)(D2 - Submitting Appearance)
M Kearney (D4)SOLICITORS: Heidi Muggenthaler & Associates (P)
Friend & Co (D1)
Blake Dawson Waldron (D4)CATCHWORDS: MENTAL HEALTH [3]- Guardianship- Extent of power of Guardianship Tribunal- What guardianship entails- Costs on appeals- How borne. LEGISLATION CITED: Guardianship Act 1987, ss 3D, 3F, 21, 31, 33A, 37, 67 CASES CITED: Application 1/98 (Cohen J - 27.3.1998)
In re C (1875) LR 10 Ch App 75
In re F (1863) 2 DeG J & S 89; 46 ER 308
King v The Guardianship Tribunal (Cohen J - 22.6.1998)
Re M and R (1988) 2 VAR 213
MN v AN (1989) 16 NSWLR 525
Re R [2000] NSWSC 886
Retarded Childen's Aid Society v Day [1978] ICR 437DECISION: See paras 44 and 49
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST
YOUNG J
FRIDAY 3 NOVEMBER 2000
38/2000 - K v K
JUDGMENT
1 HIS HONOUR: This is an appeal under s 67 of the Guardianship Act 1987 in respect of determinations made by the Guardianship Tribunal (the “Tribunal”) regarding the first defendant on 21 December 1999 and 3 March 2000.
2 The first defendant is now aged twenty four, he lives with his father, the plaintiff, in the father's home at Willoughby. On 27 December 1981 the first defendant sustained a severe head injury which left him very seriously disabled with brain injuries so that he is unable to speak or walk. He is totally incapable of managing his personal affairs.
3 The first defendant received substantial compensation for the injury he suffered, a figure of some $2 million has been mentioned in part of the evidence. The money is being managed by the Senior Master's Office of the Supreme Court of Victoria. The Senior Master and his staff provide as much as they can out of that fund for the needs of the first defendant and it would seem that out of that fund an amount of about $67,500 per year is provided for the carers of the first defendant though what expenses this covers is unclear. A substantial part of that amount goes to the plaintiff, but some of it goes to the fourth defendant, who is the first defendant's mother in respect of the periods during which she cares for the first defendant.
4 The plaintiff and the fourth defendant are divorced and it seems clear that the relationship between them is, to say the least, unsatisfactory. The fourth defendant lives in a house in Crows Nest in which the first defendant has a 32.5% share.
5 The matter came before the Tribunal when the plaintiff sought to be appointed guardian of the first defendant. The order that was made on 21 December 1999 was that the first defendant be placed under guardianship, but that his guardian be the Public Guardian. The order was for limited guardianship "giving the guardian custody of the first defendant to the extent necessary… to determine the times and arrangements under which the first defendant shall have access to his mother, away from his primary accommodation with his father” and “to determine where the first defendant shall be accommodated at the time he is having access to his mother".
6 There was a problem earlier this year when it was thought that the first defendant might be removed by the plaintiff out of the State where the Public Guardian would not have any control. On 3 March 2000, following that dispute, an order was made varying the limited guardianship order by conferring on the Public Guardian the function of determining where the first defendant might reside and to make decisions on his behalf concerning major services to which he should have access.
7 By summons filed on 28 April 2000 the plaintiff seeks to set aside the orders of 21 December 1999 and 3 March 2000. He virtually seeks an order that he be appointed guardian with such other orders as the Court thinks appropriate in the interests of the first defendant.
8 Nine grounds are set out in the summons as to why the appeal from the decisions of the Tribunal should be allowed. Three of these, (a), (h) and (i), appear to be questions of law alleging that the Tribunal misconstrued its power under the Guardianship Act. The other six are questions of fact.
9 The Court, under s 67 of the Guardianship Act, has power to hear an appeal as of right on a question of law, but only by leave of the Court on any other question.
10 It has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67. Cohen J briefly touched on the matter in King v The Guardianship Tribunal (22 June 1998, unreported) as did I in Re R [2000] NSWSC 886.
11 The matters that are raised in the grounds other than (a), (h) and (i), do not involve a review of the primary facts found by the Tribunal. Those facts are accepted because Ms Winters, for the plaintiff, says they were virtually not in dispute in any event. What she wishes to review is the extent to which policy decisions were made and the conclusions that were reached from those primary facts by the Tribunal. Mr M Kearney, for the fourth defendant, says that that is no reason for granting leave to appeal because the policy of the Guardianship Act is for the Tribunal to work out, and, in any event, decisions have already been made by this Court confirming such policy: see the case which can only be referred to as Application 1/98 decided by Cohen J on 27 March 1998 which gave a guide to the Tribunal as to what the policy was.
12 I think it is germane when considering whether to give leave to appeal, to work out the basic relationship between the Tribunal and the Court.
13 Up until relatively recently the Supreme Court, with its inherent power inherited from the Lord Chancellor's jurisdiction in England in the 18th century, had unlimited authority to deal with the persons and estates of incapable persons for their own benefit. It was thought proceedings before the Court involved expense which could be avoided and it would be more appropriate for these matters ordinarily to be dealt with by a tribunal which basically consisted of a lawyer with some knowledge of the relevant Acts and of the law of evidence, a doctor, and a person who had practical experience with the problems of people with mental disabilities. The legislature thus under the Guardianship Act committed to the Tribunal most, but not all the same area of jurisdiction that was within the Court's jurisdiction. It preserved the court's jurisdiction under s 31 and other parts of the Act, and gave the Court supervisory and appellant jurisdiction under s 67.
14 As I said in Re R, it is probably inaccurate to assess the Tribunal as being a specialist tribunal, but it is certainly a tribunal to which the legislature has committed the primary working out of the Guardianship Act and whose decisions are to be given great weight. When the Court does review a decision of the Tribunal, it does, as Lord Denning said in Retarded Children's Aid Society v Day [1978] ICR 437, 443, deal with the matter broadly and fairly and does not interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not gone wrong in law. However, a function of the Court is to ensure that guidance on the proper interpretation of the law is given to the Tribunal and the parties appearing before it so that the Tribunal is integrated into the machinery of justice applying the law of incapable persons as administered by the Court. Thus, there will not be inconsistent rulings between tribunals differently constituted, or between the Tribunal and the Court.
15 It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
16 As the present case comes within the former category I think I should give leave to appeal. I now pass to the merits.
17 Ground (a) in the summons deals with the question of who is a party before the Tribunal. In actual fact, in this case that question is of no moment because there were competing applications before the Tribunal so that the plaintiff actually was heard as a party.
18 The point which is raised in this ground of appeal is that the Tribunal misconstrued s 3D of the Guardianship Act 1987. A right to appear as a party is given by s 3F of the Guardianship Act to a person who has the care of another person. Section 3D(1) says:
“For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis:
(a) provides domestic services and support to the other person; or
(b) arranges the other person to be provided with such services and support."
Subsection (3) makes it clear that “remuneration” in subsection (1) does not include a carer's pension.
19 In the instant case, the plaintiff does receive moneys in connection with the care of the first defendant from the fund administered by the Senior Master of the Supreme Court in Victoria. The Tribunal appears to have decided that because the plaintiff was receiving remuneration otherwise than by a carer's pension he was not within the definition of a person who had the care of another person.
20 As I say, it matters not in this appeal but, with respect, the Tribunal fell into error in that ruling. Section 3D should be construed in the purposeful way, and its purpose is that everyone is to work together as far as possible to see that the best order is made for the protection of the person under review, and ordinarily that involves hearing what the persons directly caring for the person under review have to say. The best way of doing that is usually to permit such a carer to be a party.
21 The whole section is designed to differentiate between a person who has the personal care of another, and a professional in the caring field. The former is within the definition in s 3D, the latter is not. The words “(but are not limited to)” in subsection (1) show that the definition is not to be narrowly construed. Even if the word "remuneration" is very widely construed, there is nothing in subsection (3) which indicates that the only remuneration one excludes as a disqualifying factor is the carer's pension.
22 In my view, apart from paid professionals and other people who are outside the section on its clear words, the Tribunal should admit as a party every private person who provides domestic services and support for the person concerned, even if that person gets some remuneration from some source for doing so, if they are not in the class of a professional carer unemotionally involved with the person cared for.
23 I now turn to the major matter in this appeal, and that is the extent of power of the Tribunal. As I said earlier in summary, and I am not trying to use these words in an offensive fashion, the Tribunal is the poor man's protective court. The purpose of the Guardianship Act is to allow most of what could be done by the Supreme Court in its inherent power or otherwise in its protective jurisdiction to be done more cheaply by the Tribunal. This of itself indicates that the Tribunal must have wide powers as the Court has wide powers.
24 This construction is reinforced when one sees that the prime thrust of the Guardianship Act, as indicated both by its title and otherwise, is guardianship. “Guardianship” is a wide word. The present s 21(1) of the Act indicates that plenary guardianship connotes custody of the person to the exclusion of any other person, and all the functions that that guardian has at law or in equity.
25 That definition is fleshed out by statements such as in Simpson on the Law of Infants, 4th edition (Sweet and Maxwell, London, 1926) at pages 174-175. There, ignoring the footnotes, the learned author says of guardianship, that the
"…legal guardian has a right to the possession of his ward. The guardian may exercise a discretion as to the custody and education of his ward, and the Court will not interfere so long as this is properly exercised. It is his duty to choose a proper school, and, in the case of a male infant at any rate, the Court will enforce the guardian's choice without regard to the infant's preferences ... A guardian appointed by the Court is entitled to the custody and control of his ward, and any interference with his rights in this respect will be treated as a contempt of Court….”.
In chapter 10 and also in chapter 11 Simpson goes on to show in very great detail the wide power that a guardian has.
26 The Guardianship Act divides guardianship into two categories: plenary and limited. It is quite clear that the plenary form of guardianship is a very wide power indeed.
27 If one then turns to what the Court would have done when it appointed a committee under the inherent power, again the person who was appointed had very wide ranging powers. These are referred to in various judgments of Powell J including MN v AN (1989) 16 NSWLR 525 at 534 to 535, and are given in further details in the text books to which his Honour refers, Elmer’s Practice in Lunacy, 7th edition (Stevens, London, 1892) pages 180 and following, and Pope Law and Practice of Lunacy, 2nd edition (Sweet and Maxwell, London, 1880) pp 108 and following. In Theobald on Lunacy (Stephens, London, 1924) at p 49 it is noted that the committee has complete control over the person of the lunatic, subject to the directions of the Judge.
28 As the poor man's protective court, one would expect the Tribunal to have powers to do similar things.
29 Accordingly, although Ms Winters did put some very cogent arguments to the Court, and I must add, Mr Kearney both orally and in writing put equally cogent arguments the other way, it seems to me it is very difficult to say that the Tribunal lacked power to make whatever order that it considered in all the circumstances was for the benefit of the protected person whether guardianship in its plenary sense or something lesser.
30 The real problem is whether the sort of order the Tribunal did make was one which was appropriate in all the circumstances of this case. That is really not a question of law, but as I have given leave for the broader question to be considered I will now deal with that problem.
31 The essential dispute between the relevant parties, that is the plaintiff and the fourth defendant, is familiar to family law courts when dealing with what used to be called questions of custody and access. In the present case the first defendant is an adult, but he is unable to care for himself. He has emotional attachments to both the plaintiff and the fourth defendant, and the Tribunal on the facts before it came to the view that it was in his interests that he should continue to see his mother (the fourth defendant). However he is physically living with the plaintiff, he has medical needs which may require urgent medical treatment, and it is important that the one person continue to oversee those needs.
32 In those circumstances the plaintiff virtually says something like this -
(1) it is imperative that one person have full control in order to ensure that the needs of the first defendant are met;(2) it is clear that the plaintiff is that person;
(3) it is in accordance with how courts approach the appointment of committees to vest the powers in that person;
(4) it is unworkable to do what the Tribunal did, and vest the ultimate powers in a public official whilst the plaintiff still has full physical control of the person of the first defendant.
Accordingly the Tribunal must have erred.
33 Mr Kearney on the other hand says that the essential problem is that the parents cannot agree on questions of access, and that the fourth defendant is not prepared to allow the plaintiff to have the powers of a full guardian or committee. Accordingly it is necessary that a third person be appointed. It is in accordance with the practice of this Court and the equivalent tribunal in Victoria when this sort of situation occurs to appoint a person such as the Public Guardian. Otherwise, what would happen would be that the person with de facto control would virtually dictate terms, and that is just not in the interests of the protected person. Ms Winters’ response to that was that in practical terms the well-being of the first defendant is only guaranteed because the plaintiff is looking after him, and if there is "too much interference" with that practical care the first defendant will suffer.
34 Although there are real differences between the parties and although I am sure considerable attempts are being made by the lawyers of the parties to try and work out a practical compromise, the essential difference between them does not appear to be that great. If I were hearing this matter in my inherent jurisdiction I might adopt various methods of trying to get them even closer. However I must remember what I am doing, and that is to deal with an appeal against orders made by the Tribunal last year, as amended in March this year. I must also remember that the whole matter is up for review later this month before the Tribunal even if this appeal is dismissed, because its order was only to last for a year.
35 Ms Winters says that I have to consider what order I should make if I allow the appeal. Ms Winters urges me to make an order appointing the plaintiff as guardian. In my view, in the current circumstances on this appeal it is probably unwarranted to work out what is actually best for the first defendant. Mr Kearney says I should let the Tribunal have another go in November even if I allow the appeal, or indeed the same thing happens if I dismiss the appeal. Ms Winters says to that, that the plaintiff has lost faith in the Tribunal having already lost twice. That is a very illogical attitude to take. There should be no doubt that the Tribunal will direct its mind properly to the concerns of the parties and other relevant factors when it conducts its necessary review of the case.
36 The principal matter between the parties appears to be the question of control, and incidentally the question of access. The Tribunal dealt with those matters by saying that there should be guardianship in the Public Guardian who would have ultimate control, but only for a limited purpose. The effect of this is that under s 33A of the Guardianship Act, decisions regarding the first defendant are made by a hierarchy of people. Apart from the decisions made by the Public Guardian, the day to day decisions will be made by the plaintiff with whom the first defendant is living. There is a lot to be said for that course.
37 Ms Winters answers this proposition, inter alia, by saying that courts should not just take the easy way out if they cannot solve a dispute between husband and wife and just appoint some public official to work it out. However it is not that simple. Under the ordinary law what would happen would be that the committee would have to abide by the directions of the Judge, and matters of access would be eventually decided by the Judge. The law is as stated by Elmer at p 189:
"Access to the lunatic is sometimes desired by persons other than members of the immediate family; but in every case the Committee of the person, to whom the care and custody are committed, is required to exercise his best discretion, so as neither on the one hand, capriciously, to deny to the lunatic a proper amount of social intercourse with his family, which he may be able, in some cases, rightly to appreciate, nor on the other to give too great a facility to those who, from interested motives only, may desire an inspection and examination of him for some ulterior object other than his personal benefit and advantage."
38 Under the lunacy laws the court visitor would visit the lunatic regularly, report to the Lord Chancellor and Master in Lunacy and the Master in Lunacy would seek the appropriate directions from the Lord Chancellor. A similar system applies in this Court in New South Wales.
39 The Tribunal does not have that sort of facility. However, it seems to me that one gets very close to it by the system of having the Tribunal appoint the Public Guardian for the limited purpose of making rulings on discrete questions such as access.
40 It is true that the Guardianship Act provides that guardianship is the last resort, and the parties are encouraged to work things out between them. Last November the Tribunal seemed to be of the view that it was not possible for the parties to work things out. Accordingly, it needed to make the orders it did.
41 I have been shown some correspondence that has passed between the Public Guardian and some of the parties regarding an open offer made by the plaintiff. It may be at the next review, that if the Tribunal considers that appointing the plaintiff as guardian would guarantee the first defendant the access and social intercourse he needs (as stated in Elmer), it might come to a different view to that it reached last year. It may or it may not, that is a matter for the Tribunal next time. However, the decisions I am reviewing appear to me to be decisions to which the Tribunal could quite reasonably have come, and as I have said, they are within its powers.
42 That is reinforced by the view that Cohen J reached in Application 1/98 and the decision which his Honour Judge Jones reached in Re M and R (1988) 2 VAR 213.
43 As I have said, access rights are still being discussed by the parties and whilst they are not yet ad idem they are not too far apart. The fourth defendant says however that she would not like the plaintiff to have absolute power over the first defendant. So far she has succeeded in convincing the Tribunal that he should not have sole control. However, it must be pointed out that very often in these sort of cases as appears from practices like Theobald, Pope and Elmer, the Court prefers to have one person controlling the incapable person under the supervision of the Court over any other method. However that is a matter for the Tribunal in its next review.
44 All of this leads me to the view that I should dismiss the appeal.
45 The question of costs is an awkward one. As I said during argument I don't ever want to encourage people to think that because there is a healthy fund available that there is some sort of licence to approach the Court whenever the whim takes them.
46 On the other hand, there is in the protective court a general principle that people are encouraged, if they bona fide consider an application to the Court or a tribunal is for the benefit of the incapable person, to bring the matter to the attention of the Court or tribunal and in particular a worried carer is usually not met with an order for costs in doing what he or she considers for the benefit of the incapable person.
47 Even in the 19th century the practice was that even if a person was found sane, if an application to have them declared to be a lunatic was bona fide made, the applicant’s costs came out of the estate; see In re F (1863) 2 DeG J & S 89, 90; 46 ER 308, 309 and In re C (1875) LR 10 Ch App 75.
48 The present case is not quite in that category in that whilst I am quite sure the plaintiff has the best interests of the first defendant at heart, he is also motivated by the relationship he has with the fourth defendant.
49 I find this a hard question, but I think the proper order for costs is that the fourth defendant's costs should come out of the assets of the first defendant, and there should be no order as to the plaintiff's costs. Exhibits may be returned.
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