KJ v SJ

[2020] NSWSC 932

Supreme Court

New South Wales

Medium Neutral Citation:

KJ v SJ [2020] NSWSC 932

Hearing dates:

6, 7, 8 and 9 July 2020

Date of orders:

23 July 2020

Decision date:

23 July 2020

Jurisdiction:

Equity - Protective List

Before:

Williams J

Decision:

Application pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (“the Act”) for the revocation of a declaration that the applicant is incapable of managing her own affairs and of orders that the applicant’s estate be subject to management under the Act is dismissed.

Catchwords:

GUARDIANSHIP – protected person – application pursuant to s 86 of the NSW Trustee and Guardian Act 2009 (NSW) (“the Act”) for revocation of a declaration made that the applicant is incapable of managing her affairs and of orders that the applicant’s estate be subject to management under the Act – where applicant suffered a traumatic brain injury in an accident as a child – where applicant received a significant sum of money in a settlement of legal proceedings commenced following the accident – where applicant is presently married, works part–time and is the primary carer of three children – where memory and insight following the accident is and continues to be poor – where applicant suffers from executive dysfunction – where applicant experiences difficulty in managing household and personal finances – application dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 3 and 14

Corporations Act 2001 (Cth), s 601WBA

NSW Trustee and Guardian Act 2009 (NSW) ss 38, 39, 41 and 86

Uniform Civil Procedure Rules 2005 (NSW) rr 7.13, 7.15 and 7.16

Cases Cited:

CJ v AJK [2015] NSWSC 498

IA v TA [2016] NSWCA 179

P v NSW Trustee and Guardian [2015] NSWSC 579

Re D [2012] NSWSC 1006

Re R [2014] NSWSC 1810

Re X [2016] NSWSC 275

Category:

Principal judgment

Parties:

KJ (Plaintiff/First Respondent)
SJ (Defendant/Applicant)
The Trust Company (Australia) Ltd (Second Respondent)
NSW Trustee and Guardian (Third Respondent)
Perpetual Trustee Company Ltd (Fourth Respondent)

Representation:

Counsel:
Mr C Hickey (Plaintiff/First Respondent)
Mr J A Dalzell AM (Defendant/Applicant)
Mr M K Meek SC (Second and Fourth Respondent)
Ms J Brouwer, solicitor (Third Respondent)

Solicitors:
Boyd House & Partners (Plaintiff/First Respondent)
Austen Brown Boog Solicitors (Defendant/Applicant)
Carrol O’Dea Lawyers (Second and Fourth Respondent)
NSW Trustee and Guardian (Third Respondent)

File Number(s):

2013/217773

Publication restriction:

On 6 July 2020, the Court made an order pursuant to s 7 of the Court Suppression and Non–publication Orders Act 2010 (NSW) that the name, previous or current residential address and place of work of SJ and any member of her family (including her husband, children, parents and siblings) not be published without leave of the Court by reason of s 8(1)(a) and/or s 8(1)(e) of that Act.

Judgment

INTRODUCTION

1. The applicant, who is referred to in this proceeding by the pseudonym “SJ” pursuant to orders made by the Court on 6 July 2020, is a 29 year old married woman with three young children. She lives together with her husband and their three children, and works part-time at an aged care facility.

2. SJ was born on 6 June 1991. On 21 March 2000, she was struck by a vehicle travelling at high speed as she was crossing the road. She was 8 years old at the time. There is no dispute that, as a result of the accident, SJ suffered a severe traumatic brain injury. She also suffered a number of physical injuries from which she subsequently recovered.

3. In 2003, SJ’s mother, as tutor for SJ, commenced proceedings in the District Court of New South Wales against the driver of the vehicle. SJ’s mother is referred to in this proceeding by the pseudonym “KJ” pursuant to orders made by the Court on 6 July 2020.

4. It appears that the District Court proceeding was inactive for a number of years after commencement. However, by mid-2013, it was anticipated that the District Court proceedings would be settled by payment of a significant sum of money to SJ in compensation for her injuries. SJ was then 22 years old.

5. KJ commenced the present proceeding by Summons filed on 17 July 2013 seeking a declaration under s 41(1) of the NSW Trustee and Guardian Act 2009 (NSW) (the NSW Trustee Act) that SJ is incapable of managing her affairs and an order that The Trust Company (Australia) Ltd (Trust Company) be appointed as manager of her estate.

6. On 26 August 2013, the Court made a declaration pursuant to s 41(1)(a) of the NSW Trustee Act that SJ is incapable of managing her affairs, an order that her estate be subject to management under that Act and an order that Trust Company be appointed manager of her estate subject to the orders and direction of the NSW Trustee and Guardian (NSW Trustee).

7. On 1 March 2015, the assets and liabilities of the appointed manager Trust Company were transferred to Perpetual Trustee Company Ltd (Perpetual) in accordance with a voluntary transfer determination made by the Australian Securities and Investments Commission on 2 February 2015 pursuant to s 601WBA of the Corporations Act 2001 (Cth).

8. Perpetual sought orders in this proceeding appointing it as the manager of SJ’s protected estate in place of Trust Company. On 29 April 2020, the Court made orders discharging the appointment of Trust Company as manager of SJ’s estate and appointing Perpetual as manager of SJ’s estate, subject to the orders and direction of the NSW Trustee. Certain other orders were made in relation to the position between 1 March 2015 and the date of the orders.

9. The orders made on 29 April 2020 were expressly noted to be without prejudice to the application made by SJ by notice of motion filed on 27 August 2018 and amended on 11 October 2018 for orders to the effect that the protected estate management orders affecting her be revoked under s 86(1) of the NSW Trustee Act. It is that application that is the subject of these reasons.

10. The principal substantive relief sought by SJ is set out in paragraphs 4 and 5 of the amended notice of motion filed on 11 October 2018:

4. Order, pursuant to s 86(1)(a) of the NSW Trustee and Guardian Act 2009, that the declaration made on 26 August 2013 that [SJ] is a person who is incapable of managing her affairs be revoked with effect from the date of Order.

5. Order, pursuant to s 86(1)(b) of the NSW Trustee and Guardian Act 2009, that the order made on 26 August 2013 for the appointment of the Trust Company (Australia) Limited as managers of the estate of [SJ] be revoked, with effect from the date of Order.

11. As a result of the orders made on 29 April 2020, after the amended notice of motion was filed, an order in terms of order 5 of the amended notice of motion would be ineffective to revoke or discharge the appointment of the current manager of the applicant’s estate. However, the hearing was conducted on the basis that the relief sought by the applicant is the revocation or discharge of the appointment of the manager of her estate, namely Perpetual.

12. The first respondent to the amended notice of motion is KJ. The second, third and fourth respondents are Trust Company, NSW Trustee and Perpetual respectively.

13. The amended notice of motion was heard over four days commencing on 6 July 2020. Mr Dalzell, of counsel, appeared for SJ. KJ opposed the revocation of the protective orders, and was represented by Mr Hickey of counsel.

14. Trust Company and Perpetual neither consented to nor opposed the relief sought in the amended notice of motion (subject to being heard on the question of costs and the form any final orders made). Mr Meek of senior counsel appeared for Perpetual and Trust Company and made submissions and examined witnesses to assist the Court. The Court is most grateful for that assistance.

15. NSW Trustee neither consented to nor opposed the revocation orders sought in the amended notice of motion. Ms Brouwer, Senior Legal Officer at NSW Trustee, appeared on the first day of the hearing and was excused from further attendance at her request.

16. As will be apparent from the terms of paragraphs 4 and 5 of the amended notice of motion set out above, SJ’s application was for revocation of the whole of the protective regime put in place by the orders made on 26 August 2013, as varied by the orders made on 29 April 2020. Mr Dalzell confirmed during the hearing and in closing submissions that no alternative application was made for a variation of those orders or other relief less than revocation.

17. As a consequence of the orders made on 26 August 2013, SJ is a “protected person” for the purpose of Chapter 4 of the NSW Trustee Act [1] and a “person under legal incapacity” for the purpose of Part 7, Division 4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). [2] The effect of Part 7, Division 4 of the UCPR is that SJ may not commence or carry on her application except by a tutor, unless the Court makes an order under s 14 of the Civil Procedure Act 2005 (NSW) dispensing with the requirements of those rules in relation to the application.

    1. See, in particular, NSW Trustee and Guardian Act 2009 (NSW), s 38.

    2. Civil Procedure Act 2005 (NSW), s 3; Uniform Civil Procedure Rules 2005 (NSW), r 7.13.

18. The notice of motion filed on behalf of SJ on 27 August 2018 was styled as an application by a Mr Gelin as tutor for SJ. Mr Gelin’s appointment as tutor appears to have been irregular, in that UCPR r 7.15(3) and (4) required that the manager of SJ’s estate act as her tutor, unless the manager declined to act as tutor. There was no evidence that Trust Company or Perpetual had declined to act. In addition, neither Mr Gelin nor the solicitor who filed the notice of motion had filed with the Court the documents required by UCPR r 7.16.

19. In the amended notice of motion filed on 11 October 2018, the reference to Mr Gelin as tutor was struck out and no alternative tutor was referred to. I was informed that this was done after a Registrar of the Court questioned why SJ required any tutor in relation to her application. I infer that the Registrar had in mind that the application was similar to the application in P v NSW Trustee and Guardian [2015] NSWSC 579, in respect of which Lindsay J made orders under s 14 of the Civil Procedure Act dispensing with the requirement for a tutor to prosecute the protected person’s appeal from financial management orders made by the Guardianship Division of the NSW Civil and Administrative Tribunal. However, prior to the first day of the hearing before me, no order had been sought or made revoking the appointment of Mr Gelin as tutor. I considered it appropriate to clarify the record concerning Mr Gelin’s position and, on the first day of the hearing, I made an order revoking his appointment as tutor.

20. In circumstances where SJ is applying for revocation of the management orders made in relation to her estate, there is no challenge made by any party to her standing to do so without a tutor, the former and current managers neither oppose nor consent to the revocation orders but appeared to assist the Court and KJ is a contradictor to the application, I formed the view after hearing from the parties on the first day of the hearing that any requirement for SJ to prosecute the application through Perpetual as her tutor may compromise the manager’s role in providing assistance to the Court without being invested in advocating for a particular outcome and would not serve the purpose of the Court’s protective jurisdiction in this matter. I considered that the protective purpose would be better served by dealing with the substantive application with the benefit of the evidence adduced and submissions made on behalf of SJ in support of the relief sought, on behalf of KJ in opposition to the relief sought, and with the assistance provided to the Court on behalf of Perpetual and Trust Company: P v NSW Trustee and Guardian (supra) at [160]–[167]; see also IA v TA [2016] NSWCA 179 at [56]–[57]. I therefore made an order on the first day of the hearing dispensing with the requirements of Part 7, Division 4 of the UCPR in relation to SJ’s amended notice of motion.

21. Pursuant to orders made by the Court on 6 July 2020:

1. SJ’s husband is referred to by the pseudonym “LJ”;

2. as noted above, SJ’s mother is referred to by the pseudonym “KJ”;

3. SJ’s father is referred to by the pseudonym “TJ”; and

4. SJ’s two sisters are referred to by the pseudonyms “MJ” and “KC”.

APPLICABLE PRINCIPLES

22. Before turning to the evidence adduced on the hearing of SJ’s application, it is convenient to refer to the legal principles applicable to the determination of the application. Those principles were addressed in the helpful written submissions of Mr Meek SC, and were not in dispute.

23. SJ’s application is made under s 86 of the NSW Trustee Act, which provides:

“(1)   The Supreme Court, on application by a protected person and if the    Court is satisfied that the protected person is capable of managing    his or her affairs, may –

(a)   revoke any declaration made that the person is incapable of managing his or her affairs, and

(b)   revoke the order that the estate of the person be subject to management under this Act, and

(c)   make any orders that appear to it to be necessary to give effect to the revocation of the order, including the release of the estate of the person from the control of the Court or the manager and the discharge of any manager.

(2)   For the purposes of this section –

(a)   evidence of a person's capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and

(b)   the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with any such examination, and

(c)   the Court may otherwise inform itself as to the person's capability to manage his or her own affairs as it thinks fit.”

24. Section 86 falls within Chapter 4 of the NSW Trustee Act. Section 39 of that Act provides:

39   General principles applicable to Chapter

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

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

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

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

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

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

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

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

25. Those general principles, together with the nature and purpose of the Court’s parens patriae jurisdiction, inform the approach to determining SJ’s application under s 86 of the NSW Trustee Act: CJ v AJK [2015] NSWSC 498 at [27]–[39] (and the authorities there cited); Re R [2014] NSWSC 1810 at [88]–[94].

26. The question whether SJ is capable of managing her affairs must be considered in the context of her particular personal, subjective circumstances, including any family or community support available to her. Care needs to be taken to focus on the facts of the particular case: Re X [2016] NSWSC 275 at [31]; CJ v AJK (supra) at [27(d)] and [54]; Re D [2012] NSWSC 1006 at [60]–[62].

27. The matters that inform the determination whether a person is capable of managing his or her own affairs will depend on all of the circumstances of the particular case, and formulations of the reasons for a conclusion that a person is or is not capable in one case are not to be read as a universal test for the concept of capacity for self-management. Relevant considerations include not only whether the person lacks the ability to deal with complicated (or even simple) transactions and matters, but also whether by reason of that lack of ability there is a real risk that the person may be disadvantaged in the conduct of his or her affairs or that money or property may be dissipated or lost, or whether there is a risk of neglect, abuse or exploitation: CJ v AJK (supra) at [30]–[42] and the authorities there cited.

28. The focus of the inquiry is on SJ’s functional capacity for self-management in her particular circumstances, not injury, impairment or disability per se. As Lindsay J explained in Re X (supra) at [35]:

“The fact that the plaintiff suffers a physical disability may underpin a finding of incapacity for self-management, but the primary focus of attention is on her want of functional capacity for management of her own affairs, not her disability.”

29. That inquiry looks to functional capacity not only to the day of the decision, but also to the reasonably foreseeable future: CJ v AJK (supra) at [27(e)] and the authorities there cited.

30. In addressing these issues, the Court looks to the protection of SJ. Any benefit, detriment or inconvenience to the State or others is irrelevant: CJ v AJK (supra) at [27(c)] and the authorities there cite.

31. Protective proceedings are not adversarial in character. The Court applies an independent mind to the question of capacity or incapacity, and does not approach the application under s 86 with any presumption that SJ’s affairs should continue to be governed by the orders made by the Court previously unless proven otherwise: Re X (supra) at [36]. However, the Court’s power to make the orders sought by SJ under s 86 of the NSW Trustee Act does depend on the Court reaching a positive state of satisfaction that SJ is capable of managing her affairs.

THE AFFAIRS OF SJ

32. On 13 September 2013, Gibson DCJ approved the settlement of the District Court proceeding on terms that resulted in payment of $2,650,000 to SJ.

33. At the hearing of the amended notice of motion, Perpetual tendered the portfolio valuation for SJ’s estate as at 29 June 2020 [3] and a copy of the Directions and Authorities issued by the NSW Trustee on 13 May 2020 pursuant to which Perpetual manages that estate in accordance with the orders made by this Court on 26 August 2013, as varied by the orders made on 29 April 2020. [4]

    3. Exhibit 1.

    4. Exhibit 9.

34. As at 29 June 2020, SJ’s managed estate is valued at $2,593.965.37, comprising: [5]

1. investments in five managed investment funds with a total value of $2,007,975.67; [6]

2. cash in the sum of $15,979.70; and

3. the property in which SJ resides together with her husband and children, which is valued at $570,000.

   5. Exhibit 1.

   6. Exhibit 1 states that this valuation is based on latest available prices for those funds as at 25 June 2020 in the case of four funds and as at 26 June 2020 in the case of one fund.

NATURE OF THE EVIDENCE ADDUCED ON THE HEARING OF THE APPLICATION

35. It is important to understand the detailed summary of the evidence that I have set out below in the context of the following matters.

36. As I have already noted above, it is common ground that SJ suffered a severe traumatic brain injury in the accident that occurred when she was eight years old.

37. The expert evidence adduced on the hearing of the amended notice of motion includes opinion evidence based on psychometric testing carried out at different times during the period from 2003 to 2016 and clinical assessments of SJ conducted at different times during the period 2011 to 2018. The clinical assessments involved interviewing SJ and, in some instances, gathering information from members of her family.

38. The following matters were not the subject of disagreement between the expert witnesses:

1. SJ is not suffering from any psychiatric illness or disorder;

2. SJ sustained a severe traumatic brain injury in 2000;

1. there is a period of time within which a person who has suffered such an injury will achieve their maximum medical recovery. Whilst the period of time will vary from one person to the next, Dr Patricia Jungfer and Dr Andrew Frukacz were of the view that it is approximately two years, [7] whereas Dr Stephen Woods was of the view that it could be up to seven years; [8]

   7. Dr Jungfer’s evidence at Transcript, page 174 (line 49) – page 175 (line 20); Dr Frukacz’s evidence at Transcript, page 163 (lines 21–30).

   8. Dr Woods’ evidence at Transcript, page 117 (lines 23–44).

2. the capacity for financial management requires: [9]

   9. Dr Jungfer’s report dated 30 October 2018, page 15; Transcript, page 173 (line 48) – page 174 (line 10); Dr Frukacz’s evidence at Transcript, page 166 (lines 35–50).

1. an ability to acquire knowledge to inform decision-making;

2. an ability to look at the positives and negatives of decision, in order to inform decision-making;

3. the capacity to make a decision; and

4. the ability to enact the decision once made;

5. the ability to do these things is governed by a person’s executive functioning, which is one aspect of cognitive functioning; [10]

6. the frontal lobes of the brain govern reasoning, planning, judgment and insight; [11] and

7. a traumatic brain injury may not adversely affect a person’s intelligence even if it affects their executive functioning capacity. [12] Dr Woods and Dr Jungfer gave evidence to this effect, but Dr Frukacz considered that it was beyond his expertise to express an opinion. [13]

   10. Dr Woods’ evidence at Transcript, page 118, (lines 6–14); Dr Jungfer’s evidence at Transcript, page 173 (line 48) – page 174 (line 10).

   11. Dr Woods’ evidence at Transcript, page 131 (lines 22–24); Dr Frukacz’s evidence at Transcript, page 167 (line 41) – page 168 (line 2).

   12. Dr Woods’ evidence at Transcript, page 125 (lines 26–28); Dr Jungfer’s report dated 30 October 2018, page 2.

   13. Dr Frukacz’s evidence at Transcript, page 170 (line 33) – page 171 (line 25).

39. However, the experts differed in their opinions about the following matters:

1. whether SJ’s executive functioning continues to be impaired, or whether it is impaired to an extent that adversely affects her ability to manage her own affairs; and

2. whether the outcome of SJ’s most recent psychometric testing, together with the manner in which SJ has been conducting her day-to-day life for the past four or five years – raising young children, working part–time and being responsible for the management of the household budget of SJ and LJ – demonstrates that she has the ability to manage her own affairs.

40. These differences of opinion reflect:

1. different views held by the experts about the significance of the most recent psychometric testing results in assessing SJ’s ability to manager her own affairs;

2. different information that was provided to each expert about the manner in which SJ is conducting her day-to-day life; and

3. different views between the experts about whether one can form an opinion about SJ’s ability to manage a portfolio of assets worth approximately $2.6 million by assessing the manner in which she manages her current responsibilities and household finances.

41. KJ relied principally on three reports of Dr Jungfer, who is a consultant psychiatrist. Those reports were prepared in August 2011, March 2013 and October 2018. Dr Jungfer’s opinions were based on reports of testing carried out by psychologists, other medical reports relating to SJ, interviews conducted with KJ and TJ in August 2011 and March 2013, information provided by MJ in October 2018 and her interviews with and clinical assessments of SJ in August 2011, March 2013 and October 2018. KJ also relied on a report of a neurologist, Associate Professor Paul Darveniza, dated 5 October 2011.

42. SJ relied principally on three reports of Dr Frukacz, who is also a consultant psychiatrist, and one report of Dr Woods, who is a forensic psychologist who conducted psychometric testing and assessed SJ in November 2016. Neither Dr Frukacz nor Dr Woods had the benefit of interviewing any member of SJ’s family, other than LJ.

43. The discrepancy in the information available to the medical experts is attributable to the fact that SJ ceased contact with her parents KJ and TJ in November 2014, when she gave birth to her first child with LJ.

44. As a result of the breakdown in their relationship with SJ in November 2014, KJ and TJ have not come to know LJ, and have no current relationship with SJ and LJ. KJ and TJ do not know the children of SJ and LJ, and have not seen how SJ is managing her day-to-day life as a working mother of three children.

45. Dr Frukacz and Dr Woods were not able to interview KJ and TJ, or SJ’s sisters KC and MJ. As I have referred to above, Dr Frukacz and Dr Woods interviewed SJ and LJ. Dr Woods was provided with some affidavits and statements of KJ, TJ, KC and MJ, but it is clear from his report that he regarded the information from KJ and TJ as “historical” and irrelevant to the question of SJ’s ability to manage her own affairs at the time that he assessed her in November 2016, even though at least some of the affidavits and statements provided to him were made after the seven year period that Dr Woods considers to represent the maximal recovery period after brain injury. Dr Woods’ report makes no reference to the affidavits and statements provided by KC and MJ. It appears that he did not take those into account in his assessment, even though he recorded that SJ had a close relationship with MJ. [14]

    14. Report of Professor Woods, pages 1–2 (Court Book, pages 88–89), paragraph 2.1 (Court Book, page 94) and paragraph 4.2 (Court Book, page 108).

46. LJ has known SJ since December 2013, when they commenced their relationship. They have lived together since June 2014 and have been raising children together since November 2014. They married in January 2019. None of SJ’s family have formed a relationship with LJ. This includes SJ’s sister, MJ, even though SJ maintained a close relationship and almost daily contact with MJ until December 2018. LJ’s perception that SJ is capable of managing her own affairs is principally based on his view that she is managing their household budget adequately. However, for reasons that will be explained in considering the evidence of SJ, LJ and MJ below, managing their household budget is a task of very limited scope and LJ has little visibility of whether SJ is undertaking this task adequately.

47. SJ ceased contact with her sister KC in about September 2015. SJ also ceased contact with her sister MJ in December 2018 upon discovering that MJ had written a letter to Dr Jungfer for the purpose of Dr Jungfer assessing SJ in October 2018.

48. Allegations and counter-allegations were made by SJ, KJ and KC in their affidavits about the underlying causes of the breakdown in the relationships between SJ and her parents and siblings. These matters were barely mentioned in cross-examination, and KJ and KC said that they did not know what had caused the breakdown or problems in their relationship with SJ, despite their affidavit and oral evidence strongly implying that this had been caused by LJ. [15] It was not put to LJ in cross-examination that he had prevented SJ from seeing her family or caused her to cease contact with them.

    15. See, for example, Transcript, page 70 (line 39) – page 71 (line 15), page 78 (lines 1–23).

49. It is neither necessary nor appropriate for the Court to make findings about the causes of the breakdown in the relationships between SJ and her family.

50. However, it is important to appreciate the fact of the breakdown when assessing the evidence of SJ, LJ, KJ, TJ, KC and MJ and weighing it up together with the expert evidence in order to determine whether SJ has the capacity to manage her own affairs.

51. On the one hand, KJ and TJ were unable to give any evidence concerning how SJ is managing her day-to-day life as a working mother of three children. Their evidence in opposition to SJ’s application for revocation of the protective orders was based on their experience of SJ as a child, teenager and young adult in the years leading up to 2014.

52. On the other hand, LJ’s evidence is limited to the period since December 2013. Due to the nature of his work, LJ is away from home during the week and spends time with SJ and their children only on weekends. This means that he has limited opportunity to observe how SJ is managing the day-to-day affairs of herself and of their household and family.

53. As someone who was close to SJ, and had daily contact with her until December 2018, MJ is perhaps best placed to shed light on matters concerning SJ’s conduct of her day-to-day affairs in the period prior to December 2018.

54. As will become apparent in the summary of the evidence that follows, there were numerous discrepancies between the evidence of SJ on the one hand, and the evidence of KJ, TJ, KC and MJ on the other hand. In addition, LJ’s assessment of SJ’s management of their household finances was at odds with the account given by MJ of SJ’s spending patterns during the period prior to December 2018.

55. However, it does not follow from these discrepancies that one witness is telling the truth and the other is not. In some instances, the discrepancy is most likely attributable to SJ’s impaired memory, to which I refer below. In other instances, the witnesses simply have different perspectives on the same events. On the one hand, SJ views certain matters through the lens of her drive as a late teenager and young adult to be independent (and to be seen as independent) and feeling hurt and frustrated by what she saw as her parents’ interference with her life. On the other hand, it was apparent from the manner in which KJ and TJ gave their evidence that they felt deeply hurt and exasperated by what they saw as SJ putting herself at risk by fighting against the steps they have taken with great care and effort, to look after what they see as her best interests and protect her from potential exploitation. [16]

    16. See, for example, Transcript, page 35 (lines 38–45); page 38 (lines 16–32).

56. In my assessment, each of SJ, LJ, KJ, TJ, KC and MJ gave truthful evidence, to the best of their recollection, albeit that some aspects of their evidence was coloured by their particular perspective concerning the matters about which they were being asked, and many aspects of SJ’s evidence were affected by her impaired memory.

57. I turn now to consider the substance of the evidence in detail. It is important to bear in mind that the question is not whether SJ is injured or impaired, but whether she has the functional capacity to manage her own affairs having regard to her particular circumstances: see [23]–[30] above. The evidence of testing of SJ’s cognitive and executive functioning informs to some extent the interpretation of the lay evidence concerning SJ’s conduct of her day-to-day affairs, and that lay evidence in turn informs to some extent the significance or otherwise of the test results.

EVIDENCE OF SJ AND HER FAMILY MEMBERS

58. On the hearing of the amended notice of motion, the applicant read the following evidence:

1. affidavits of SJ sworn or affirmed on 8 November 2018, 25 February 2019 and 14 May 2019;

2. an affidavit of LJ sworn on 14 July 2018; and

3. an affidavit Mr Gelin sworn on 20 June 2018.

59. Each of SJ, LJ and Mr Gelin were cross-examined.

60. The first respondent read the following evidence:

1. affidavits of KJ sworn on 7 July 2013, 6 September 2013, 20 December 2018 and 3 April 2019;

2. an affidavit of TJ sworn on 10 April 2019;

3. affidavits of KC sworn on 20 December 2018 and 9 April 2019; and

4. an affidavit of MJ sworn on 9 April 2019.

61. Each of those witnesses was also cross-examined.

62. Perpetual read the following evidence:

1. an affidavit of Andrew Wallace (General Manager, Advice Delivery and Trustee Services, Perpetual Private) sworn on 31 May 2018; and

2. affidavits of Venera Pulvirenti (Senior Trust Manager, National Health and Personal Injury Team, Perpetual Private) affirmed on 13 December 2018 and 29 March 2019.

63. Mr Wallace and Ms Pulverenti were not cross-examined.

64. The summary of the evidence that follows does not endeavour to capture every historical event referred to in the affidavits, but is limited to the matters that have a rational bearing on the determination whether SJ is capable of managing her own affairs. The relevant evidence falls into six broad categories: evidence concerning SJ’s impaired memory; evidence concerning SJ’s independence in day-to-day living activities; evidence concerning SJ’s employment; evidence concerning SJ’s management of money in her day-to-day life; SJ’s plans for her $2.6 million estate if the protective orders are revoked; and seizures suffered by SJ.

Impaired memory

65. SJ gave inconsistent evidence about her memory.

66. In cross-examination, SJ initially denied that her memory was not good. [17] However, at other times SJ acknowledged that she did have problems with her memory. In particular, SJ said that, at times, she suffers from poor memory as a result of her brain injury, and agreed that this had been the case for many years. [18] In response to questions from me, SJ said that memory loss was a problem when she was sleep deprived as a result of having three children. She said that, prior to having children: “I had memory loss like we all do. I wouldn’t say it was extreme, but I did have memory loss.” [19]

    17. Transcript, page 22, (lines 22–23).

    18. Transcript, page 32, (lines 26–33).

    19. See for example, Transcript, page 51 (line 46) – page 52 (line 9).

67. In response to a question from me about strategies that she had developed to help her with her memory, SJ said that she usually wrote things down to help her remember them “or I discuss it with my husband. He, yeah, he’s very good, yeah.” [20] LJ gave evidence that he had “not really” observed SJ’s memory problems. [21] I attribute this to the fact that LJ’s work requires him to travel long distances from home, and he is away from the family home Monday to Friday each week and is only home on weekends. His opportunity to notice memory deficiencies is therefore somewhat limited. It may be that LJ does not realise that SJ sometimes discusses things with him as a tool to help her remember those things.

    20. Transcript, page 52 (lines 10–15).

    21. Transcript, page 56 (lines 32–36).

68. In March 2013, SJ was assessed by Dr Jungfer. SJ told Dr Jungfer that her main problems at that time related to fatigue, forgetfulness, headaches and difficulties in sustaining concentration. [22] SJ also told Dr Frukacz in March 2015 that she suffered from poor memory as a result of her brain injury. [23] I note that SJ made these self-assessments well outside the maximal recovery period of between approximately two years and seven years referred to in [38(3)] above.

    22. Report of Dr Jungfer dated 21 March 2013, paragraphs 4.2–4.15 (Court Book, pages 6–9).

    23. Report of Dr Frukacz dated 8 December 2015, page 1 (Court Book, page 126).

69. There were two particular aspects of SJ’s evidence that, in my view, clearly demonstrated that her memory is poor.

70. First, SJ’s sister, KC, was married in September 2015. In her affidavit sworn on 20 December 2018, KC deposed that she had asked SJ to be part of her bridal party, but SJ told KC that LJ would not allow her to attend the wedding. In her affidavit sworn on 25 February 2019, SJ deposed that KC’s wedding was held one month before she was due to give birth to her second child. SJ said: [24]

“He was a big baby and I had been warned that he may have arrived early. I did not attend the wedding because it was in the Hunter Valley and I did not want to risk going into labour so far from home and [LJ]. [LJ] did not prevent me from going; this was my decision, not his.”

24. Affidavit of SJ made on 25 February 2019, paragraph 41.

71. However, in his affidavit sworn on 14 July 2018, LJ deposed that their first child was born in November 2014 and their second child was born in July 2016. Accordingly, SJ was not heavily pregnant in September 2015. The marriage of a sibling and the impending birth of a child are both significant life events. In my opinion, the fact that SJ remembers the marriage of KC and the last stages of her second pregnancy as coinciding, and believes that she made a considered decision not to attend the wedding due to the risks of going into early labour, when she plainly was not heavily pregnant at the time, confirms that her memory is very poor and that she is prone to inaccurately remembering even significant life events.

72. Second, in her affidavit sworn on 8 November 2018, SJ deposed that she began making and selling jewellery as a hobby in 2014. [25] This is roughly consistent with the account that SJ gave to Dr Jungfer in March 2013 that she purchased a lot of beads because she was getting ready to establish a store. [26] I note that 2014 was also the year in which SJ and LJ began living together and had their first child. However, in cross-examination, SJ was unable to recall the period of time for which she has been making and selling jewellery. When asked if she could even place a year on it, she answered: “Probably around 2016, 2017, yeah.” [27] In my opinion, the fact that SJ has such different recollections of when she started this activity, and appears to be unable to recall it by reference to the timing of other significant events in her life, provides further confirmation that her memory is very poor.

    25. Affidavit of SJ sworn on 8 November 2018, paragraphs 23–25.

    26. Report of Dr Jungfer dated 21 March 2013, paragraph 4.6 (Court Book, page 8).

    27. Transcript, page 44 (lines 45–50).

73. As addressed in detail later in these reasons, testing administered by Dr Bogan in 2009 and by Dr Woods in 2016 found SJ’s working memory capabilities to be within the low average range compared to her peers. However, the more comprehensive memory testing undertaken by Dr Bogan placed SJ’s memory skills in the extremely low range compared to her peers. Dr Bogan was of the view in October 2009 that SJ had difficulty with all aspects of memory. In his report dated 17 April 2011, Dr Bogan expressed the view that SJ’s poor memory had been consistently demonstrated in previous assessments by himself and others, and that she continued to have significant difficulties with verbal memory capacity. On the basis of that expert evidence and the evidence referred to in [65]–[72] above, I find that SJ’s memory is very poor.

74. SJ’s evidence that she was not informed about the protective orders made by this Court in August 2013, and that she discovered them only when a solicitor acting for SJ and LJ informed SJ about the orders in 2014, must be viewed in the context of her poor memory.

75. Moreover, that evidence does not sit well with other evidence given by SJ in her affidavit sworn on 8 November 2018 that her parents told her in or about 2013 that a trust fund was set up because she was unable to look after her own affairs. Whilst it may be that SJ cannot recall court orders being mentioned in this context, this evidence of SJ confirms that she was informed about the substance or effect of the orders that this Court made.

76. There was documentary evidence that the Trust Company had met with SJ in August 2013 to gather preliminary information to be used in preparing a financial plan for her. This would also tend to suggest that SJ was aware in August 2013 that there was a substantial fund of money and arrangements were being made to manage that for her.

77. KJ swore an affidavit on 7 July 2013 that was provided to the Court in support of the application for protective orders in 2013 and was also read on the hearing of SJ’s application to revoke those orders. KJ deposed that she had discussed with SJ her (that is, KJ’s) wish for SJ’s financial affairs to be managed by the NSW Trustee and that SJ was supportive of those wishes.

71. In her affidavit sworn on 3 April 2019, KJ deposed: [28]

“13.   I recall on one occasion after the motor accident claim had finished that our lawyer … had sat down and talked to [SJ] for about 20 minutes to explain to her why the Trustee was being appointed and explained that this is why nobody can touch her money and it is only for her.

14.   [SJ] sat in this meeting, listened, smiled and blinks. She appears to interact but does not really.

15.   Following that meeting in about 2013 I asked [SJ] in words to the effect: ‘What do you think about what [the lawyer] said? Are you happy about that ?’ [SJ] replied: ‘I don’t know, I don’t care, it doesn’t matter, whatever.’

16.   This was generally [SJ’s] attitude to anything to do with finances for her claim or money.”

28. Affidavit of KJ sworn on 3 April 2019, paragraphs 13–16; see also Transcript, page 68 (lines 5–40).

79. TJ gave evidence to the same effect in his affidavit sworn on 10 April 2019. [29]

    29. See, in particular, affidavit of TJ sworn on 10 April 2019, paragraph 11.

80. In cross-examination, SJ said that she could not recall this discussion with the solicitor, but she did not deny that it had occurred. [30] SJ agreed that she did go to some meetings with the solicitor, but she could not recall what she had learned there. [31]

    30. Transcript, page 22 (lines 1–24); page 37 (lines 36–45).

    31. Transcript, page 38 (line 46) – page 39 (line 5).

81. In her affidavit sworn on 8 November 2018, SJ deposed that she had asked KJ for details and documents concerning the compensation payment received as a result of the District Court proceeding, “but she would not tell me”. [32]

    32. Affidavit of SJ sworn on 8 November 2018, paragraph 9.

82. However, KJ gave evidence in her affidavits sworn on 20 December 2018 and 3 April 2019 that SJ had been present at many meetings with the solicitor concerning her claim and at all settlement discussions. TJ gave evidence to the same effect in his affidavit sworn on 10 April 2019. KJ deposed that SJ had been disinterested in the claim and in the settlement discussions, saying “I don’t care about the money”. [33] KJ nevertheless made it clear to SJ on many occasions the nature and size of the settlement, and SJ was present at the District Court when the settlement was listed for approval. [34]

    33. Affidavit of KJ sworn on 20 December 2018, paragraph 11.

    34. Affidavit of KJ sworn on 20 December 2018, paragraph 38.

83. I accept the evidence of KJ and TJ that SJ was informed about the settlement of her District Court claim, the 2013 application to this Court for the protective orders and that the fact that those orders were made. SJ’s own evidence indicates that she was informed about the effect of the protective orders. Given SJ’s poor memory, it is understandable that she may not now recall that the trust arrangement she was told about had been established by orders made by the Court.

Day-to-day living

84. In her affidavit sworn on 8 November 2018, SJ deposed that she has been living independently since 2013.

85. In about late 2013, SJ moved out of the family home into rented accommodation by herself. In her affidavit sworn on 20 December 2018, KJ deposed that she had helped SJ to find a property, purchase the furniture she needed and liaise with the Trust Company in relation to the lease and those purchases. According to KJ, SJ found it too difficult to deal directly with the Trust Company about these matters.

86. In her affidavit sworn on 25 February 2019, SJ deposed that KJ had no involvement in the process of SJ moving into the rental property. However, in the very same paragraph, SJ deposed that KJ did purchase the furniture and then arrange for reimbursement from Trust Company. [35]

    35. See affidavit of SJ made on 25 February 2019, paragraph 10.

87. In her affidavit sworn on 9 April 2019, MJ deposed that KJ assisted SJ arranging another rental property in 2014 by helping her to complete and sign the rental documentation and explaining the terms to SJ. Documentary evidence confirming KJ’s role in arranging SJ’s move to this property is annexed to Ms Pulverenti’s affidavit affirmed on 29 March 2019. This was the property in which SJ and LJ lived together from about June 2014 after they commenced their relationship in December 2013. MJ also gave evidence in her affidavit and in cross-examination that MJ had to explain to SJ the need to arrange insurance, and she then called the insurance company and arranged the insurance on SJ’s behalf.

88. I accept the evidence of KJ and MJ about the assistance that SJ required and received to arrange her rental properties in 2013 and 2014. KJ’s evidence in relation to SJ’s move into the first rental property in 2013 is consistent with SJ’s own evidence. Some aspects of the evidence concerning her move into the second property in 2014 are corroborated by contemporaneous email correspondence annexed to Ms Pulverenti’s affidavit affirmed on 29 March 2019. SJ’s evidence about events in 2013 and 2014 is unreliable due to her poor memory: see [65]–[73] above.

89. Since about November 2016, SJ and LJ have lived in their current home which was purchased by the Trust Company as manager using funds of SJ’s estate.

90. LJ works away from home as a fencing contractor each week and is typically home only on the weekends. SJ currently has the sole care of her three young children while LJ is working away from home during the week (and joint care of them with LJ when he is at home on the weekends). She performs all tasks necessary to look after the children and maintain the household, in addition to working part-time, as referred to below.

Employment

91. SJ obtained an Aged Care Certificate III qualification in 2011. That is ordinarily a one year TAFE course, but SJ completed the course over two years from 2009 to 2011 with the assistance of a learning aide.

92. Since February 2011, SJ has worked part-time as a Nursing Assistant at two different aged care facilities (with the exception of some periods of maternity leave following the birth of her children). She currently works five days per fortnight, and is on call for an additional two days.

93. SJ’s duties include assisting residents with their daily care needs and activities, and assisting a registered nurse with the administration of medication. More recently, she has also been given some responsibility for training school leavers who are starting work in the aged care facility as trainees.

94. SJ described her work as involving “enormous pressure”. When I asked SJ to describe the nature of the pressure, she said that it is very stressful when a resident passes away because it is necessary to contact the family members and funeral home, and it is not very pleasant. SJ also explained that aged care is “very full on”, and it is sometimes necessary to prioritise competing demands. SJ gave the example that, if a resident has a fall, it is necessary to give priority to assisting that resident.

95. There was no evidence adduced from any supervisor or colleague of SJ concerning her work. Given that SJ has held her current position since 2014, I infer that her employer finds her work to be satisfactory. However, the evidence does not allow the Court to form any assessment of the extent to which SJ’s work is supervised, or whether or not her duties have been modified or structured in some way in order to accommodate any difficulties associated with her brain injury.

96. In her affidavit sworn on 8 November 2018, SJ deposed that she began making and selling jewellery as a hobby in 2014. As I have referred to above, SJ has given inconsistent evidence about when she began doing this. She has sometimes described this activity as a business and sometimes as a hobby. In her oral evidence at the hearing SJ emphasised that it was more of a hobby than a business. In his affidavit sworn on 14 July 2018, LJ described it as a business and said that the jewellery that SJ makes is distributed to customers Australia-wide. [36] However, he does not know whether or not SJ makes a profit. [37]

    36. Affidavit of LJ sworn on 14 July 2018, paragraph 16.

    37. Transcript, page 56 (lines 5–10).

97. There were no records concerning the jewellery-making activity in evidence, and SJ gave evidence in her affidavit sworn on 25 February 2019 and in cross-examination that she did not keep detailed records of it. [38] SJ gave evidence that she knew how much each piece cost her to make, based on the price per bead, so she knew how much profit she was making on each piece. [39] However, this inconsistent with SJ’s evidence that she has difficulty doing calculations “off the top of my head”. [40] In my view, the state of the evidence is such that is not possible to draw any conclusions about the manner in which SJ conducts her jewellery-making activities that would have any relevance to the question whether she has the ability to manage her own affairs.

    38. Affidavit of SJ made on 25 February 2019, paragraph 51; Transcript, page 45 (lines 14–15).

    39. Transcript, page 30 (lines 3–27).

    40. Transcript, page 32 (lines 20–21).

Managing money

98. SJ’s sister, KC, gave evidence that, when she was in her late teens and living at home, SJ would impulsively buy things for herself, such as large volumes of clothing that she never wore. The clothes would periodically be taken to a charity outlet when too many of them accumulated in her room. KJ and TJ gave evidence to the same effect. TJ said: “If [SJ] had money, she spent it.” In her affidavit sworn on 25 February 2019, SJ denied that she was impetuous with money. She said that she had bought a lot of clothing as a teenage girl who loved clothes, but she only gave them away if they no longer fitted her. SJ also said that, as a mother of children, she no longer purchases new clothes unless necessary. However, MJ gave evidence of SJ having three or four large bags containing what appeared to be hundreds of brand new dresses in her garage in late 2018, and that SJ told her she was going to donate the dresses to charity as she did not know what to do with them.

99. KJ and KC also gave evidence that SJ had a habit of generously buying things for friends without thinking about whether she could afford it. KJ attributed this to SJ’s need to be liked by her peers. In her affidavit sworn on 25 February 2019, SJ denied buying unnecessary gifts for her peers and other people.

100. KJ and KC also gave evidence that, prior to 2013, SJ had taken out a loan and given the funds to her boyfriend at the time, who had used the money to either put towards a deposit for a property or to carry out renovations at his property. SJ accepted this in her affidavit made on 25 February 2019, and deposed that: “I think the amount was about $5,000”. [41] SJ never recovered that money, and says that she was not advised by her former solicitor or KJ to take any steps to recover it. In her affidavit sworn on 3 April 2019 and in cross-examination, KJ gave evidence that the loan taken out by SJ in 2013 was in fact for $10,000, and that SJ had also taken $5,000 out of an account that her parents had established for her and given the money to a friend or boyfriend who needed to fix their car. In cross-examination, SJ accepted that she had lent $5,000 to a former boyfriend and that she had lost that money. She said: “I was young and silly at the time”. [42] She agreed that the former boyfriend had exploited her. [43]

     41. Affidavit of SJ made on 25 February 2019, paragraph 35.

     42. Transcript, page 23 (lines 1–13)

     43. Transcript, page 23 (lines 1–15).

101. In her affidavit sworn on 8 November 2018, SJ deposed that she and LJ have separate bank accounts. LJ confirmed this is in his oral evidence. [44]

     44. Transcript, page 60 (lines 9–11).

102. SJ and LJ each gave evidence that SJ manages their household finances. This involves purchasing the groceries, paying for car registration and insurance and paying for childcare. SJ also pays her phone bill. The manager of her estate pays most of the bills, including council rates, gas, electricity and water. The manager also provides a fixed amount of money for any specific one-off purchases.

103. LJ gave evidence that SJ had never asked him for assistance with the management of their finances, and “has always managed our finances sensibly”. [45] LJ explained in his oral evidence that he considers that SJ manages their finances sensibly because he sees that the children are fed, well clothed and go to daycare, and LJ doesn’t see notices of unpaid and outstanding bills.

     45. Affidavit of LJ sworn on 14 July 2018, paragraph 9.

104. In her affidavit sworn on 25 February 2019, SJ deposed that she had borrowed money from MJ on two occasions, and that she had borrowed about $300 on each occasion. She deposed that one of these loans had been to buy petrol “and similar items” and one had been to pay her phone bill. SJ deposed that she had paid back the first loan within a few weeks and that MJ had not required her to repay the second loan. SJ gave no evidence about when these loans had been made.

105. In her affidavit sworn on 9 April 2019, MJ deposed that she had loaned or given SJ amounts of $200 and $300 on many occasions. MJ annexed three bank transfers to her affidavit as examples of these loans. The transfers were dated March, April and September 2018.

106. In oral evidence, MJ said that she had observed during the whole of the period since SJ’s accident, including during the period from 2014 to 2018 when MJ and SJ were in almost daily contact, that SJ lacked the ability to prioritise her spending. MJ had seen no change or improvement in this since SJ’s accident. MJ gave the following specific example that had occurred in the period 2016 to 2018, which she described as typical of the instances in which SJ failed to prioritise her spending: [46]

“SJ has $50 left, she needs petrol in the car, but she sees an ad on Facebook for a dress that she likes, so she’ll purchase the dress in priority to putting petrol in the care to get the children to day-care.”

46. Transcript, page 101 (lines 3–8), page 103 (line 32) – page 104 (line 25).

107. MJ said that SJ would often call her for assistance and MJ would give SJ money or advise her about what to do next. Given that she was in almost daily contact with SJ, MJ found it difficult to estimate how frequently SJ contacted MJ in these circumstances over the period from 2014 to 2018, but she said that the frequency was closer to weekly than monthly.

108. I accept MJ’s evidence about the frequency with which SJ needed her advice or financial help because she had run out of funds in the period prior to December 2018. MJ has no reason at all to give untruthful evidence about this subject. Indeed, it was a very difficult thing for MJ to give evidence opposing SJ’s application to revoke the protective orders, and she paid a heavy price for doing so: SJ terminated their relationship. In her affidavit, MJ said: [47]

“6.   I have been extremely reluctant to become involved in this matter. I understood that if I did, that [SJ] would see me as not supporting her and would likely cut off contact from me as she has done to the other members of our family.

7.   It was with reluctance that I provided an email letter which I understand was provided to Dr Jungfer.

8.   On about 24 December 2018, [SJ] terminated our relationship. She told me ‘she could not trust [me] because I contacted the doctor assessing [her] for these proceedings.’

9.   I miss [SJ] and her children. [SJ] is not only my sister, but she is also my best friend. I am hopeful that again we will be able to re-establish our relationship. I hope [SJ] will eventually come to realise that I only act to protect her purely from a place of love and without benefit to myself.”

47. Affidavit of MJ made on 9 April 2019, paragraphs 6–9.

109. Moreover, MJ’s evidence is broadly consistent with the evidence of Dr Jungfer, referred to below, that SJ’s bank account statements that Dr Jungfer reviewed with SJ online during her assessment of SJ on 30 October 2018 showed multiple overdrawn fees. In her affidavit sworn on 25 February 2019, SJ deposed that she does not have overdrawn fees “on an overly regular basis”. [48] SJ said that the weekly remittances by the Manager into her account are “often” late. [49] However, in her affidavit affirmed on 29 March 2019, Ms Pulverenti deposed that SJ receives her payments every Monday, with the exception of public holidays when the payment is paid to SJ the Friday preceding the holiday. Ms Pulverenti was not cross-examined. It will be necessary to return to Dr Jungfer’s evidence concerning overdrawn fees later in these reasons.

     48. Affidavit of SJ made on 25 February 2019, paragraph 57.

     49. Affidavit of SJ made on 25 February 2019, paragraph 57.

110. I attribute the discrepancy between the evidence of MJ and SJ about SJ’s spending patterns and frequent need for financial assistance from MJ to SJ’s very poor memory (see [65]–[73] above) and to her lack of insight, as assessed by Dr Jungfer. I refer to Dr Jungfer’s evidence about SJ’s lack of insight in [210]–[213] below. I accept Dr Jungfer’s evidence for the reasons set out in [218]–[225] below.

111. As I have already mentioned, LJ works away from home as a fencing contractor each week and is typically home only on the weekends. SJ and LJ do not share a joint bank account. LJ buys his own food while he is working away from home and pays his other expenses from his own funds. He pays an amount of money to SJ’s account each week or each fortnight and leaves it to SJ to feed and clothe the children. SJ receives two fixed amounts from Perpetual each week, one of which is specifically for childcare expenses, together with the wages from her part-time work. LJ’s view that SJ is managing the household budget adequately is based on the fact that, when he is at home on the weekends, he sees that the children are well clothed and fed. In addition, LJ is aware that the children attend daycare and he does not receive notices that bills are outstanding. However, as I have referred to above, most of the household bills are paid directly by the manager of SJ’s estate. Because he does not have any relationship with MJ, LJ would not be aware of the regular financial assistance that MJ has provided to SJ at times when she has failed to prioritise her spending. He would not have learned about this from SJ, who denies the frequency with which she has sought and received assistance from MJ after overspending.

SJ’s plans for her estate if the protective orders are revoked

112. In her affidavit sworn on 9 April 2019, MJ deposed: [50]

“In late 2018 on several occasions, I was discussing with [SJ] the purpose of her bringing this application to the Court. I have asked her what the plan is for her money. I have asked her this on several occasions. She keeps changing her mind. Sometimes she has told me words to the effect of ‘she is going to split the money in half and put some of it into her children’s bank accounts’. Another time she told me she ‘wanted to buy a large block of land and a big house.’ Another time she told me it was because she ‘needed money to buy a new car.’ She does not seem to have any concrete plan as to why she wants control of the money. I believe it is simply that she does not like being told what to do by others.”

50. Affidavit of MJ made on 9 April 2019, paragraph 18.

113. In her affidavit affirmed on 14 May 2019, SJ deposed: [51]

“… if I am given control of my estate, I propose engaging a professional financial adviser. I do not propose making any major decisions without the advice of that advisor and my husband … and, where necessary a solicitor I trust.”

51. Affidavit of SJ affirmed on 14 May 2019, paragraph 37.

114. In cross-examination, SJ said she had already consulted a financial adviser since the conversations that MJ referred to in her affidavit, and that her plans had become more settled as a result of the advice she had received, although the financial adviser could not finalise the advice or any plan for SJ until the outcome of her application to revoke the protective orders is known. [52]

     52. Transcript, page 20 (lines 46–50), page 21 (lines 1–5).

114. At the time of the hearing, SJ had received her most recent portfolio statement from Perpetual approximately two weeks earlier. She was aware that the total value of her estate is approximately $2.6 million. However, she was unable to tell the Court the form in which her assets were held without prompting. When prompted, SJ was able to explain that her portfolio included the property in which she lives valued at approximately $570,000, two lots of shares each worth about $500,000 and “an account with my money that is budget”. [53]

     53. Transcript, page 41 (line 50) – page 43 (line 19).

115. The portfolio statement [54] includes a list of five managed investments, two of which are expressly described as investments in shares. Some of the other three may be investments in the form of shares, but they may be investments in other securities such as treasury bonds or units in managed investment schemes. The two managed investments that are expressly described as shares do have a value in the vicinity of $500,000 each. However, in describing the composition of her portfolio with the assistance of the gentle prompting offered by Mr Meek SC’s questions, SJ did not appear to recognise that the $570,000 property and $1 million shares portfolio that she referred to fell far short of the $2.6 million value of her estate and that there were additional assets worth approximately $1 million to make up the $2.6 million total. She did not mention the additional three managed investments, nor did she mention that the total managed investments (including the two share portfolios) were worth $2 million.

     54. Exhibit 1.

116. In relation to the share investments that SJ did mention, she did not know the nature of the assets or investments the shares were held in. SJ gave the following evidence in response to questions asked by Mr Meek SC: [55]

“Q.   Do you know how you would go about assessing whether the shares are held in something that is profitable or not?

A.   You mean if I’ve got the money out of The Trust Company, is that what you mean?

Q.   Yes.

A.   Yes, I would just go for advice from a financial advisor if it come – and solicitors if it come to do anything with shares.

Q.   Do you have any idea yourself as you how you would assess whether the investment was a good investment or not?

A.   At this present time no but I wouldn’t do that without legal advice or from a financial advisor.”

55. Transcript, page 43 (lines 20–38).

118. SJ was also asked what she would like to do with her estate if the protective orders were revoked and she were managing her own affairs. SJ gave evidence that she had spoken to her financial adviser approximately four times, the most recent occasion being two weeks prior to the hearing. SJ had told her financial adviser what she would like to do. The questioning by Mr Meek SC and SJ’s answers continued as follows: [56]

     56. Transcript, page 46 (line 20) – page 47 (line 43).

“Q.   You told her [the financial adviser] what you wanted to do, is that right?

A.   Yes, yeah.

Q.   What was that?

I would like to purchase a car, I have three kids, my car is too small. Next five to six years I would like to purchase a property with my husband as I have growing children and we need more space. I would like money aside to do renovations to the house I’m in. It is falling – like there’s a lot of stuff that needs to be done. I would like to put $10,000 each child aside for when they’re 21 so they can to go to uni, buy a car, whatever they wanted to do and the rest I’ve just put in an account so it can earn interest.

Q.   In terms of the property you’re intending to – or you’ve discussed about purchasing.

A.   Yeah.

Q.   Is that in addition to the existing property –

A.   No.

Q.    – you’re in?

A.   I would – no, sorry I’d sell my house I have now.

…

Q.   Purchase another property, and in terms of the balance of the moneys, I think you just said you’d put it into an account to earn interest.

A.   Yes, yeah.

Q.   Is that right?

A.   Yes.

Q.   Is that in relation to – you’ve mentioned there’s about – I think about a million dollars that you picked up –

A.   Yeah, shares.

Q.   – that was on –

A.   Yeah, yeah.

Q.   – the shares. I suggested that the figure is closer to about $2 million dollars [sic].

A.   Yeah, yeah.

Q.   Do you have a particular plan about whether any amount of that should remain –

A.   Remain in the shares –

Q.   – in managed shares –

A.   Yes, definitely.

Q.   – or whether you’d put it all in the bank?

A.   No I – definitely shares, definitely, yeah.”

119. In response to further questions from me, SJ said that her intentions that she had initially described to Mr Meek SC reflected the plan that she had discussed with her financial adviser, except that SJ had added in the spending on house renovations. [57] SJ said that her evidence that she would like to keep some money in shares was something that she had decided for herself, and not in conjunction with her financial adviser. [58] SJ gave the following explanation: [59]

“Q.   What are your reasons for wanting to keep some of the money and shares?

A.    I think interest and money you make more money in shares than just sitting in an account with the interest earning on it.”

57. Transcript, page 49 (lines 20–48).

58. Transcript, page 50 (lines 38–50).

59. Transcript, page 51 (lines 1–5).

120. In response to further questions asked by Mr Hickey, SJ gave the following evidence: [60]

     60. Transcript, page 52 (lines 25–44).

“Q.   You said in answer to her Honour’s questions that you thought you could make more money in shares.

A.   Yes.

Q.   How do you say that? What’s the basis for it?

A.   Sorry, I don’t know. I don’t understand the question, sorry.

Q.   How would make more money in shares?

A.   I know shares are a lot – worth a lot more money than just sitting in a bank and earning interest.

Q.   Have you discussed the type of share portfolio?

A.   No. No.

Q.   Do you know much money you can earn by way of interest now on money?

A.   No, so not off by heart, sorry, no.

Q.   Or at all?

A.   No. It – I think it changes.”

121. SJ’s evidence that I have referred to in [114]–[120] above was given over a short period of time during the afternoon of the first day of the hearing. The inconsistencies within that evidence are very troubling. SJ said that she would consult a financial adviser, particularly in relation to “anything with shares” and that she did not know how to assess whether an investment in shares was profitable and would not make such an assessment without legal advice or advice from a financial adviser. Her financial adviser’s plan, as SJ described it in her evidence, did not involve any investment in shares and involved SJ putting a very large sum of money “in an account so it can earn interest”. However, almost immediately after describing this plan that she had developed with her financial adviser, SJ said under cross-examination by Mr Meek SC that she would “definitely” invest $2 million of her estate in shares rather than putting it in an account to earn interest. In response to my questions, SJ said that she had made this decision for herself, without advice from her financial adviser. The decision was based on a very general notion that SJ thought that shares would be worth a lot more than money earning interest in a bank account, yet she had not given any consideration to the type of shares in which she would wish to invest.

122. I observed SJ closely in the witness box while this evidence was given. Her demeanour was calm. She did not appear to be flustered, frustrated or confused by the questions, except when she expressly said so. On those occasions, she calmly asked for clarification about the question. For the most part, she was smiling and nodding as she gave her answers. SJ appeared to me to be completely untroubled by the obvious inconsistencies in her answers. The inconsistencies are so stark that I infer from SJ’s untroubled appearance that she was not aware of, or did not understand, those inconsistencies.

Seizures

123. KJ, KC and SJ each gave evidence that SJ has suffered from seizures over the years since the accident that caused her brain injury, including when she was pregnant with her first child and during her pregnancy with her third child. SJ gave evidence that she is not having treatment for the seizures, and her last seizure occurred in April 2019. She is assessed annually by her general practitioner to determine whether she is medically fit to drive, and she is required to present the general practitioner’s assessment to Service NSW when renewing her drivers’ licence. It will be necessary to return to the subject of the seizures in considering the medical evidence below.

EXPERT EVIDENCE CONCERNING SJ’S ABILITY TO MANAGE HER AFFAIRS

Overview of the expert evidence

124. Dr Jungfer is a consultant psychiatrist who has specialised in psychiatric aspects of head injury and traumatic brain injury since 1991. [61] KJ relied on the following three reports of Dr Jungfer:

1. report dated 5 August 2011, which was tendered at the hearing of the application;

2. report dated 21 March 2013, which was annexed to Dr Jungfer’s affidavit sworn on 5 June 2013 that was read at the hearing of the application. This report also formed part of the evidence before the Court when the protective orders were made on 26 August 2013; and

3. report dated 30 October 2018, which was annexed to the affidavit of KJ’s solicitor sworn on 14 January 2019, together with letters of instruction and materials provided to Dr Jungfer.

   61. Appendix “B” to Dr Jungfer’s report dated 21 March 2013 (Court Book, pages 24–32); Transcript, page 173 (lines 31–43).

125. KJ also relied on a report of Associate Professor Paul Darveniza, neurologist, dated 5 October 2011. That report was annexed to Professor Darveniza’s affidavit affirmed on 25 June 2013, which was read without objection. Professor Darveniza’s report also formed part of the evidence before the Court when the protective orders were made on 26 August 2013.

126. SJ relied on three reports of Dr Frukacz, consultant psychiatrist, dated 8 December 2015, 22 February 2016 and 17 November 2017. Each of those reports was annexed to the affidavit of Mr Frukacz sworn on 9 August 2018, which was read without objection. Dr Frukacz does not claim any special expertise in relation to traumatic brain injury. His curriculum vitae states that, since 1997, he has been providing “general adult psychiatric services” to patients referred to him by their general practitioners and he sees patients with a wide variety of conditions, including mood disorders, anxiety disorders, post-traumatic stress disorders and personality disorders. In cross-examination, Dr Frukacz said that he was “familiar within a general sense with traumatic brain injuries”. [62] I infer that it was for this reason that Dr Frukacz stated in his first report, and repeated in his oral evidence, that the opinion of Dr Jungfer, as a psychiatrist specialising in brain injury, should be considered very carefully. [63]

     62. Transcript, page 163 (lines 21–32).

     63. Report of Dr Frukacz dated 8 December 2015, page 3 (Court Book, page 128); Transcript, page 158 (line 44) – page 159 (line 13).

127. SJ also relied on the report of Dr Woods, a forensic psychologist, dated 30 March 2017. The report is annexed to his affidavit sworn on 7 August 2018. According to Dr Woods’ curriculum vitae, his experience includes neuropsychological assessment of traumatic brain injury. However, his professional appointments reveal that the focus of his work has been in the area of forensic psychology in the field of criminology, including profiling for the New South Wales and Victorian Police and the Australian Defence Forces. Since 2013, Dr Woods has been an Adjunct Associate Professor and, later, an Adjunct Professor at the School of Law and Justice at Southern Cross University in New South Wales. [64]

     64. Curriculum vitae at Annexure “A” to the affidavit of Professor Woods sworn on 7 August 2018 (Court Book, pages 79–87).

128. Dr Woods, Mr Frukacz and Dr Jungfer were cross-examined on the third day of the hearing of the Application. Professor Darveniza was not required for cross-examination.

129. Dr Bogan is a psychologist with a doctorate in neuropsychology on the assessment of children and adolescents with traumatic brain injuries. Dr Bogan assessed SJ in May 2003, October 2009 and March 2011. His reports were referred to extensively by Dr Jungfer and also by Dr Woods in their respective reports and in their oral evidence. Dr Bogan’s three reports were tendered on the final day of the hearing. [65] He was not required for cross-examination.

     65. Exhibits 5, 6 and 7.

Summary of the expert evidence

130. Dr Bogan first assessed SJ on 13 May 2003. He interviewed SJ, and also interviewed KJ and TJ, and reviewed various medical and school reports relating to SJ. Dr Bogan administered the Wechsler Intelligence Scale for Children – Third Edition (WISC-III), the Auditory Verbal Learning Test (AVLT) and the Verbal subtests of the Test of Memory and Learning (TOMAL). Dr Bogan also administered two separate measures of executive function: the Seals Test and the Wisconsin Card Sorting Task. The Seals Test is a developmental measure of executive function developed by Dr Bogan which involves remembering simple rules for moving coloured balls and the position of the balls while planning moves to solve problems at three levels of difficulty. The Wisconsin Card Sorting Task is a computerised matching exercise in which the matching criteria change without warning.

131. In his report dated 27 June 2003, Dr Bogan referred to the medical records concerning SJ’s accident, which suggested, in his view, that SJ had sustained a severe acquired brain injury. Dr Bogan then set out his opinions based on his assessment of SJ (emphasis added): [66]

“The results of testing on two separate measures of executive function revealed that on the particular task that measured active learning and planning skills that [SJ] tended to have difficulty with the active memory component. I noted on The Seals Test that she would forget information necessary for completing a set task and when challenged had difficulty applying simple rules to solve problems. Although [SJ] scored within the lower end of the Average range on this test, there was evidence that executive function skills were problematic. In my view [SJ’s] approach to solving nonverbal tests on the WISC-III was consistent with her results on tests of executive function. It was apparent from observing her performance on nonverbal tasks of the WISC-III that [SJ] tended to act impulsively without employing planning strategies, did not self monitor her approaches and tended to rely on trial and error approaches. I suggest that these approaches were also an indication of difficulties with executive function.

The results of memory testing on two separate measures revealed that [SJ’s] retrieval of discrete verbal information was Significantly Below Average compared to her age peers. Testing on a separate memory measure, the TOMAL revealed that [SJ’s] Verbal immediate memory skills were functioning within the Deficit range compared to her age peers.

Academic skills were generally functioning within the Average range compared to her age peers. Given her difficulties with executive function and verbal memory this result was probably testimony to the level of individual support that [SJ] had received since her accident.

I noted that testing by Ms Mandalis from the Sydney Children's Hospital dated 23 April 2002 placed [SJ] within the Average range of ability. In my view the current assessment was consistent with this result. Ms Mandalis was of the opinion that [SJ] was inflexible in her problem solving and experienced difficulty in maintaining goal directed activity until completion. I would suggest that [SJ] continued to display some of these deficits. In my opinion there was some evidence of perseverative behaviours in that [SJ] had some difficulty shifting set and employing systematic strategies for problem solving. On verbal subtests [SJ] tended to respond with "don't know" rather than attempt to work through solutions. I noted that Ms Mandalis reported that [SJ] experienced difficulty in initiating activity. In all likelihood [SJ] non response in the face of a challenge was an example of lack of effort or initiation.

Ms Mandalis reported that [SJ] had a significant working memory deficit and that her memory for language based information was compromised by retrieval difficulties. I suggest that the results of the current assessment were consistent with this analysis. There was evidence on current testing that [SJ] experienced significant retrieval difficulties. Testing on The Seals Test highlighted difficulties in holding simple information in active or working memory until the completion of an activity.”

66. Exhibit 5, pages 10–11.

132. Dr Bogan re-assessed SJ on 13 October 2009. He again interviewed SJ and separately interviewed KJ and TJ, and reviewed SJ’s school reports. Dr Bogan also reviewed a number of medical reports and neuropsychological assessments of SJ undertaken by other medical practitioners. Dr Bogan also administered the Wechsler Adult Intelligence Scale – Third Edition (WAIS-III), the Wechsler Memory Scale – Third Edition (WMS-III) and the Seals Test, in addition to the Beck Anxiety Inventory and the Beck Depression Inventory – Second Edition.

133. Dr Bogan expressed the following opinions in his report dated 21 October 2009 (emphasis added): [67]

     67. Exhibit 6, pages 11–13.

“Summary and Opinion

The results of the current assessment revealed [SJ] was functioning within the Borderline to Low Average range of general intelligence as measured by the WAIS-III. I noted on the verbal scale which was performed more within the Borderline range of ability, that [SJ] scored her lowest result on a measure of social comprehension. Her score placed her within the Deficit range compared to her age peers. Low scores on this subtest generally indicated a lack of initiative in making decisions, lack of social awareness or lack of opportunity or ability to display independent behaviours.

[SJ’s] non-verbal abilities were scored more within the Low Average range with one subtest performed within the Average range. I noted on one subtest measuring problem solving and planning abilities that [SJ] scored at the lower end of the Borderline range, her lowest result on this scale. I observed during the administration of this task that [SJ] became confused at first when presented with the task and failed items at a lower level of difficulty. However, on the more difficult items I noticed she began to employ a systematic strategy and worked through the task in a logical manner, row by row comparing her response against the template. However, on the very next item, which was similar in its approach to the previous, [SJ] abandoned her successful strategy, used a trial and error approach, realised this was not working, regrouped, went back to her original successful strategy and eventually worked out the problem successfully, but outside the time limit. On the following items she could not get started and appeared to be overwhelmed by the task.

[SJ’s] Working Memory capabilities placed her within the Low Average range compared to her age peers. She scored within the Average range on a measure of immediate recall of sequences of numbers. In particular, [SJ] was also able to successfully reverse the order of different sequences of numbers presented to her. This task required her to keep the original sequence of numbers in working memory while manipulating them to reverse their order. This result suggested there was no issue with the multiple processing of information.

[SJ’s] memory skills as measured by the WMS-III placed her within the Extremely Low range compared to her age peers. [SJ] experienced difficulty with all aspects of memory. Her score on the Immediate Memory Index was in the Extremely Low Range as was her result on the Delayed Memory scale. On one verbal memory task [SJ] was read stories which she was required to immediately recall and then again after a short period of delay. One story I immediately read to her a second time. I noted [SJ] was basically unable to recall any information from the stories, even after having read the second story for second time. Thirty minutes later she could recall no information from either story. [SJ] also failed to recognise information read from either stories.

198. Dr Jungfer also referred to the WAIS-IV administered by Dr Woods and stated that it would be inadequate to determine SJ’s financial cognitive ability as it may not assess brain injury-related impairments because intelligence can be unaltered after brain injury and: [159]

“Decision making, problem solving, cognitive flexibility, complex attentional processing, judgment and reasoning are not specifically tested with the WAIS.”

159. Report of Dr Jungfer dated 30 October 2018, pages 2–3 (Court Book, pages 268–269).

201. Dr Jungfer considered that the WAIS-IV testing would not examine executive or frontal lobe impairments. [160] Dr Jungfer explained in her oral evidence that executive functioning involves the cognitive processes that govern problem solving, reasoning, decision-making and the ability to initiate and cease an activity (such as a spoken word, thought or behaviour). She said that executive functioning is also assessed and demonstrated by things such as verbal fluency and the degree of insight that a person has, and may also be manifest in regulation of emotional control. Executive functioning is most commonly thought to be regulated or operated from the frontal regions of the brain. In Dr Jungfer’s view, insight and judgment are governed by the frontal lobe region. [161]

     160. Report of Dr Jungfer dated 30 October 2018, page 12 (Court Book, page 278).

     161. Transcript, page 173 (line 48) – page 174 (line 10).

202. Dr Jungfer acknowledged that the WAIS test does look at working memory which is also governed by the frontal areas of the brain. However, she described the test as really looking at a person’s “crystallised knowledge” or “intelligence base”, rather than how they apply knowledge or intelligence. [162] Dr Jungfer was not familiar with the picture completion test administered by Dr Woods as part of the WAIS. She has some familiarity with the letter number sequencing sub-test and acknowledged that it does tap into some executive functioning skills. It was beyond Dr Jungfer’s expertise to say whether the outcome of the letter number sequencing sub-test would enable an opinion to be formed about a person’s capacity to manage their financial affairs. [163]

     162. Transcript, page 184 (lines 27–34).

     163. Transcript, page 191 (line 30) – page 192 (line 22).

203. Dr Jungfer regarded the neuropsychometric testing undertaken by Dr Bogan in 2009 was the most recent testing which extensively tested SJ’s executive functioning. She considered it reasonable to rely on Dr Bogan’s 2009 testing because it had not demonstrated significant change from previous testing, “which meant that considering when the injury had occurred in terms of the length of time and the absence of any change over time it would indicate that [SJ] had plateaued from the impairments and deficits”. Dr Jungfer acknowledged that it was reasonable to also rely on the results of the WAIS as well, and added that it was necessary to rely on a range of information in forming an opinion and that an opinion should not be formed solely on the basis of psychometric testing. [164] As I have referred to above, Dr Woods also emphasised the need to rely on information concerning how SJ is functioning in the community rather than relying solely or principally on testing results.

     164. Transcript, page 192 (line 44) – page 193 (line 45).

204. During the course of her interview with SJ on 30 October 2018, Dr Jungfer reviewed SJ’s banking records together with her online on SJ’s mobile phone. Dr Jungfer noted in her report that the Commonwealth Bank account showed regular overdrawn account fees and that SJ was unaware how often her account was overdrawn. In her oral evidence, Dr Jungfer said that SJ had said in her interview that she thought she overdrew the account infrequently, yet the records reviewed by Dr Jungfer during the interview showed that it had been overdrawn “quite frequently”. Dr Jungfer’s report refers to the account having been overdrawn on a number of occasions in the two week period leading up to the interview on 30 October 2018. Dr Jungfer’s report also noted that SJ was not able to calculate what her regular AfterPay payments were. [165]

     165. Report of Dr Jungfer dated 30 October 2018, page 9 (Court Book, page 275); Transcript, page 176 (lines 11–20).

205. Dr Jungfer’s report also noted that SJ denied receiving any advice or assistance from her sister, MJ, contrary to information that MJ had provided to Dr Jungfer. [166] That is also contrary to the evidence given by MJ in this proceeding, which I have accepted for the reasons in [98]–[107] above.

     166. Report of Dr Jungfer dated 30 October 2018, page 8 (Court Book, page 274).

206. Dr Jungfer asked SJ what she wanted to do with her funds. Dr Jungfer’s report records: [167]

“[SJ] wanted to purchase a home with more land…and rent out the home that she currently has. She said that she wanted to speak to a financial adviser to see if this was a reasonable option. She indicated that she then wanted to allocate some of the funds to both of her children in trusts that would mature when they were in their 20’s. …

When asked how she would determine whether it was a good financial advisor or an appropriate person who was suitably qualified she said she would rely on the advice of her solicitor or word of mouth. …

She indicated that any monies that were left over after purchasing the second home, she wanted to have the money placed with a trustee but she would select a public trustee because she had been advised by her legal counsel that the trustee and guardian who was the public trustee was more lenient, would not question when she asked for money and she had spoken to them and she had noted their leniency.”

167. Report of Dr Jungfer dated 30 October 2018, pages 10–11 (Court Book, pages 276–277).

207. In response to questions asked by Mr Meek SC, Dr Jungfer explained that she had drilled down and asked further questions of SJ in her interview on 30 October 2018 in order to understand her reasons and decision-making process that led her to the view that she wanted to buy a larger home and rent out her current home. Dr Jungfer said that SJ had told her that she would receive $550 per week in rent, and this would provide a stable income greater than the income SJ earns now. However, SJ had not considered what would happen in the event that the property was not tenanted for a period of time. Nor had she considered the expenses that she would incur as a landlord, and what the net rental income would be after paying those expenses. [168]

     168. Transcript, page 185 (line 3) – page 187 (line 10).

208. In relation to SJ’s expressed wish to have the balance of her funds (after purchasing another property and placing some money in trust of her children) placed with the public trustee, Dr Jungfer was perplexed by the notion that the public trustee would be more “lenient” than SJ’s present trustee. This is indeed perplexing, as the manager administers SJ’s estate in accordance with directions made by the NSW Trustee. [169] This indicates that SJ has a poor understanding of the arrangements under which her estate is administered.

     169. See the terms of the orders made by the Court on 26 August 2013 and 29 April 2020 and Exhibit 9.

209. Dr Jungfer noted that SJ had previously been assessed as incapable of managing her own affairs based on neuropsychometric testing carried out “when she was very remote from the injury”. This is a reference to the testing carried out by Dr Bogan. [170] Dr Jungfer expressed the following opinions (emphasis added): [171]

     170. Report of Dr Jungfer dated 30 October 2018, page 12 (Court Book, page 278); Transcript, page 179 (line 41) – page 180 (line 5).

     171. Report of Dr Jungfer dated 30 October 2018, pages 12–16 (Court Book, pages 278–282).

“On clinical assessment [SJ] presents with a history of managing day-to-day financial affairs though not very adequately. While there are numerous statements provided by her solicitor, her partner, Dr Frukacz and Professor Woods that she is able to competently manage her day-to-day affairs. No party identifies that she regularly over draws the account and pays overdrawn fees. She has no budget, she does not have full understanding of her day to days costs. She is unaware of the total sum of those fees. No party identified that she cannot calculate what her regular Afterpay payments are or how frequently she purchases using Paypal. No party identified that she cannot document whether or not her jewellery making business makes a profit because she does not keep any kind of books. She also indicated frankly in this assessment that while her partner operates a business, she has no understanding and in her words “zones out” when he starts to talk about the financial affairs.

She has a medical condition, which could endanger her children’s and the community’s safety but remains untreated.

There is evidence to indicate that [SJ] can manage her day-to-day affairs, although in a compromised fashion. The compromised fashion however does not result in any serious financial damage and harm. I however could find no evidence that [SJ] would be able to manage financial sums that are currently invested for her. While I am not privy to the quantum of those financial sums that are managed by the trustee. I was concerned as to the reasons [SJ] wished to have her funds reallocated and the reasoning behind this. She wants her funds reallocated because it is her believe that she should have easier access since it is her entitlement to have the monies. She has no knowledge as to how the monies are invested and tells me that that information has been withheld from her. Obviously, if this is the case this needs to be altered. [SJ] is unable to support herself but states that she would continue working and utilise the funds for her needs. She demonstrates significant problems in managing her day-to-day financial affairs, being penalised for being overdrawn, borrowing from others, but because she has limited monies she does not compromise herself to the extent that she is in severe debt. Afterpay is a problem however I am sure that will come to fruition in the future.

…

Overall, [SJ], while having made a good recovery and demonstrates relative independence within the community she continues to rely on major acquisitions and purchases to be funded by the trustee. She purchases things on Paypal or Afterpay, regularly overdraws her account and struggles but manages on a day-to-day. The children, (although I did not see them), I am told are well cared for. I note that she neglects her own health and appears to deny or dismiss issues that are challenging or difficult.

While I accept the opinions of Dr Frukacz and Professor Woods that she not have a current functional psychiatric disorder, she continues to manifest features of a neurocognitive disorder following traumatic brain injury and this neurocognitive disorder places her at a disadvantage and an unreasonable disadvantage when compared with the common man of managing a large sum of money such as her residual estate from her settlement. She is naïve, trusting, fails to address the small and detailed points of her day-to-day financial affairs and relies on the assistance of others to organise things that are out of the ordinary. Therefore, she is disadvantaged from a financial management perspective. [SJ] has poor judgment, in decision making she focuses on the now rather than considering the future, she cannot determine the long-term consequences of her decisions. She is insightless into her impairments and does not gather information to inform her decision making. She takes limited steps to compensate for her problems. She acknowledges that in complex matters such as her partner’s business she shuts down and does not take in the details, she naïvely accepts what people tell her. On clinical assessment she does not have the financial knowledge or skills to manage her day to day matters competently and does not recognise this. In the past she has made poor decisions, (such as lending an intimate partner money, but she never asked for repayment.) she does not recognise or learn from these past mistakes, indicating significant cognitive inflexibility.

…

DR Frukacz, Professor Woods, and her solicitor all state she is financially capable, they may not have all the details of her past behaviour financially and how she now processes these issues, which is relevant in determining her future capacity. These experts all seem to focus on her day to day management but do not raise obvious areas of problems when it comes to complex matters. The key issue here is how she would manage a large sum of money. She is lacking in ability and does not have insight into where she is lacking, therefore she cannot compensate. The other parties have also not commented on her vulnerability to exploitation and her previous lack of insight about this exploitation.

I would argue, based on the history of [SJ], her discussion of her financial affairs, her conduct in the past and her current handling of day-to-day monies that she lacks capacity to manage such a sum of money as her trustee is currently handling as she lacks financial capacity based on her Neurocognitive disorder from her severe brain injury.”

210. In her oral evidence, Dr Jungfer explained that, after the maximum recovery period for a traumatic brain injury (which Dr Jungfer considered to be a two year period, although the position is less clear in relation to brain injuries sustained by children, as in SJ’s case), improvements observed are usually adaptions to the impairments rather than recovery from the impairments. [172]

     172. Transcript, page 174 (line 48) – page 175 (line 20); Transcript, page 177 (lines 10–20).

211. Dr Jungfer acknowledged that SJ had made significant adaptive changes, in that she had married and had three children, was running a household and working part-time. Dr Jungfer acknowledged that this indicates that SJ has the ability to acquire information and to learn, and there is the prospect for SJ to take new information and apply it to make adaptive change. [173] Dr Jungfer said: [174]

“The question always arises how does a person use that knowledge that they have learned, and that is not consistent across all areas. The ability to determine whether a person has a capacity to care for a child, whether a person has a capacity to drive a vehicle, whether a person has a capacity to make a will, or to manage their financial affairs, are all very specific individual things. Something like the WAIS provides you with a general assessment of intelligence. It tells you nothing about the application of that general intelligence.”

173. Transcript, page 177 (line 10) – page 178 (line 34); page 181 (lines 25–45).

174. Transcript, page 177 (line 47) – page 178 (line 5).

212. Dr Jungfer also gave evidence under cross-examination by Mr Dalzell about the importance of insight in assessing a person’s ability to use new learning in order to make adaptive change (emphasis added): [175]

“Q.    In relation to what has been termed her learning ability and her adaptation, would it not be possible for that process to continue, so as to provide her with the foresight to manage that money?

A.    One of the key – it, it actually goes back to the, to what I mentioned as far as the WAIS was concerned, and the fact that we know she has an ability to learn. It's actually the application, and one of the things you need to know is what you don't know, and in her case her insight into her limitations is reduced. And, and that always becomes a problem when assessing capacity, because you know, I will see individuals – and I do capacity assessments regularly in brain injury. I see people who I said were incapacitated ten years ago and now re-examine them.

And the issue always comes to not only what the person can learn, but what they recognise is wrong, and if they don't recognise the extent of what is wrong, they can't make the adaptive change. That adaptive change may well be that ‘I go to everything with pieces of paper and I take notes’ or you know ‘I, I get them to write it down and simply’ or ‘I go and do a course’ or whatever. You know it's, it's that issue that in fact becomes ultimately relevant in terms of not only can you teach her, but will she then actually apply it. If you give her the information, will she know when she needs to use it. And, and that's one of the areas where she has consistently demonstrated lack of insight, and it is incredibly difficult to teach people insight. 30 years of brain injury experience, it is really hard.

Q.    The scenario I'd like to put to you is this. If SJ went and sought the assistance of a financial adviser, took advice, would that not perhaps give her the ability to adapt to some insight in relation to the management of the money?

A.    I asked SJ about her now husband's business and she said, ‘Oh, it, it's just so complex, I, I zone out,’ quote unquote. And I know what my financial adviser's documents look like. I, I seriously doubt that she would in fact have the ability to deal with that complex material, and that it would be virtually impossible to put it in such a fashion that she would be able to comprehend not only what the financial adviser was recommending, but how she go about executing it and how she'd know to change the decision if things go wrong, because it was very clear when I was looking at her banking statements that she repeatedly would overdraw the account but she didn't learn from that mistake. She didn't change her behaviour.

That's with a small sum of money. I, I, I – you know, with no disrespect to SJ, I would just seriously doubt that she would be able to take a document from a financial adviser, process what she needs to do, then in fact enact that instrument, and then know how to change if things were going wrong, because she hasn't demonstrated that with her day to day affairs.”

175. Transcript, page 180 (lines 6–50).

213. I asked Dr Jungfer about the basis on which she had formed the opinion that SJ had limited insight. Dr Jungfer said: [176]

“… insight essentially is the concept that a person knows there is a problem and that they have to do something to compensate for that problem. So a good example was the discussion regarding the epilepsy, the awareness of, you know, the significance of the epilepsy, what it meant to have untreated epilepsy and so, and she just really didn’t – dismissed any concerns that I expressed about the absence of treatment and the ramifications of her.

Then also looking at her awareness of the limitation she has cognitively in terms of her ability to do basic mathematics, when I actually asked her ‘How much money do you have to pay Afterpay each month?’ she couldn’t actually work it out. She didn’t, she wasn’t aware of how much she was purchasing, but then when she was given the numbers and there was no – and she thought she was fine, you know, yes it’s this much and had no awareness that – there was no recognition that I have this problem.”

176. Transcript, page 188 (lines 25–44).

214. I also asked Dr Jungfer whether the adaptive changes that SJ had made (in parenting children and working part-time) shed any light on the question whether she would be able to make adaptive change in areas relevant to financial management. Dr Jungfer answered: [177]

“…that’s a difficult question in the sense that if you’re a parent of children there is a, a sort of like a fairly constant stimulus there and some very basic things that you, you need to deal with. You know, I’m, I’m not minimising the fact that if you’ve got three children it can be, you know, a challenge to be able to manage three children at once. Managing a financial portfolio is a – it’s a completely different type of skill that she would have to have. Is there the possibility that she might learn to be able to do that?

The, the real issue is that we don’t know with the children, when things go wrong, how she responds to that and whether that then informs what she does moving forward. What I could say and what I can base my opinion on is that when, for example, I examined with her the fact that she repeatedly overdraws her account, there was no evidence that she could respond to that by changing her behaviour and that then raises questions, “What would she do with a more complex and substantial sum of money?” If she made a bad investment choice would she be able to then adaptively change to that and there’s – there isn’t good evidence in that regard.”

177. Transcript, page 194 (line 40) – page 195 (line 6).

215. Dr Jungfer’s reference to epilepsy above is a reference to the seizures to which I have referred in [123] above. There is no evidence that these are epileptic seizures, although Dr Jungfer considers that this cannot be ruled out. [178] Dr Frukacz and Dr Woods placed little significance on the question whether SJ is continuing to suffer from seizures for the purpose of forming their opinions about whether SJ has the ability to manage her own affairs. By contrast, Dr Jungfer considered that the fact that SJ suffers from seizures, and drives a vehicle and cares for young children without have sought medical intervention or treatment for the seizures, indicates impaired judgment. [179] With respect to Dr Jungfer, I do not accept that this reflects poor judgment on the part of SJ. As I have referred to at [123] above, SJ gave evidence that she is assessed annually by her general practitioner to determine whether she is fit to drive a vehicle, and her licence is issued upon that medical assessment being provided to Service NSW. Dr Jungfer did raise a serious question about whether a general practitioner is competent to undertake such assessments, [180] but that would reflect poorly on the general practitioner rather than SJ herself. SJ is dependent on the medical advice she receives. For this reason, I do not conclude that SJ’s dismissal of the concerns that Dr Jungfer raised with her necessarily demonstrates lack of insight.

     178. Transcript, page 189 (lines 5–40).

     179. Report of Dr Jungfer dated 30 October 2018, page 6 (Court Book, page 272).

     180. Transcript, page 181 (lines 5–16).

216. However, Dr Jungfer’s description of SJ’s reaction to being presented with the calculation of the Afterpay monthly payments without appearing to appreciate that she had been unable to work it out bears striking similarities with my own non-expert assessment of SJ’s apparent lack of awareness and understanding of the stark inconsistencies in her evidence about how she would manage her own affairs if the protective orders were revoked: see [121]–[122] above.

217. Neither Dr Woods nor Dr Frukacz had been provided with Dr Jungfer’s report dated 31 October 2018 before giving evidence at the hearing of the Application.

Assessment of expert evidence

218. For the following reasons, I regard the evidence of Dr Jungfer as the most reliable expert evidence concerning SJ’s current executive functioning and ability to manage her own affairs.

219. First, Dr Jungfer has had regard to the extensive neuropsychometric testing carried out by Dr Bogan in 2009 and 2011, in addition to Dr Woods’ more limited testing in 2016, when forming her opinions. By contrast, Dr Woods and Dr Frukacz have relied principally on Dr Woods’ testing. Neither of them made any attempt to grapple with the complex picture revealed by Dr Bogan’s analysis of the results of his more extensive testing. As I have referred to in [169]–[171] above, Dr Woods’ report presented an inaccurate summary of the outcomes of Dr Bogan’s testing and essentially ignored Dr Bogan’s analysis of those outcomes. Dr Woods’ testing is more recent, but Dr Bogan’s was more thorough and was carried out after the time at which SJ could have achieved maximal recovery from her brain injury, assuming that the recovery time frame is seven years as Dr Woods says rather than the two years preferred by Dr Jungfer. As I have noted above, Dr Jungfer and Dr Bogan have extensive experience in the assessment and treatment of brain injury, whereas Dr Woods and Dr Frukacz do not.

220. Second, in his assessment of SJ’s “global functioning”, Dr Woods disregarded the information provided by SJ’s family, discarding it as “historical”: see [45] above. I acknowledge that Dr Woods was assessing SJ as at November 2016, and that the affidavits and statements of SJ’s family members were dated between about 2011 and 2013. Nevertheless, this “historical” information post-dated the expiry of the seven year period that Dr Woods regards as period in which maximal recovery can be achieved after a traumatic brain injury. It was information that provided some context against which he could have assessed and tested the account given to him by SJ and LJ in November 2016. His failure to do so reduces the weight of his opinions, in my view.

221. By contrast, Dr Jungfer relied on a range of sources of information.

222. Third, Dr Woods’ assessment of SJ’s “global functioning”, on which Dr Frukacz also relied, rested on the five matters set out in [177] above. I have found that evidence does not establish two of those matters (the successful management of the household budget and the profit-generating jewellery business). The bank statements relied on by Dr Woods do not provide any objective support for his opinion, for the reasons in [182]–[187] above.

223. Fourth, even if the assumption made by Dr Woods and Dr Frukacz that SJ is adequately managing her household budget or day-to-day financial affairs was supported by the evidence (and it is not), neither Dr Woods nor Dr Frukacz explained how this supported the conclusion that SJ has the ability to manage a complex $2.6 million portfolio of assets. By contrast, Dr Jungfer’s evidence explained the different nature of the learning that SJ has acquired and applied since her injury on the one hand, and the learning that would need to be applied for complex financial decision-making on the other hand. Dr Jungfer’s more detailed approach to questioning SJ, compared to the very general approach of Dr Woods and Dr Frukacz to which I have referred above, revealed lack of insight on the part of SJ. I also observed that lack of insight during SJ’s oral evidence: see [121]–[122] and [216] above.

224. I accept Dr Jungfer’s evidence, based on her extensive experience, of the importance of insight in a person’s capacity to successfully apply new learning and the difficulty of teaching insight to a brain injured patient. I also accept Dr Jungfer’s evidence that SJ’s history of financial management to date does not support the conclusion that she has sufficient insight, presently or with the benefit of new learning, to be able to manage a $2.6 million portfolio of assets, even with the benefit of professional financial advice.

225. Fifth, both Dr Frukacz and Professor Woods placed great weight on the fact that SJ told them that she would seek advice from a financial adviser if she were managing her own affairs. Their evidence does not reveal that they made any attempt to explore SJ’s capacity to make sound judgments when selecting a financial adviser to consult, when considering the financial advice provided, and when deciding how to act in response to that advice. Dr Woods appeared to dismiss the need to investigate this on the basis that any person would find this complex. That may be so, but the question is whether, in light of her traumatic brain injury and all of the history available to them concerning the problems that SJ has suffered following that injury, SJ has the capacity to undertake these complex assessments. Dr Frukacz acknowledged that he had not asked SJ the questions that would need to ask in order to form an opinion about this.

CONSIDERATION AND DETERMINATION

226. The central issue raised by SJ’s application under s 86 of the NSW Trustee Act is whether SJ is capable of managing her affairs now and for the foreseeable future.

227. On behalf of SJ, it was submitted that the Court should not expect SJ to have a degree of capability greater than “the everyday person”. It was submitted that the Court should consider SJ’s overdrawing of her accounts as involving minor amounts and that the Court should assume that “one may find a lot of the population overdraw their accounts”. It was submitted that SJ is living a “normal life” even though she has a disability and that the Court should therefore find that she is capable of managing her own affairs.

228. In my opinion, these submissions fail to grapple with the nature of SJ’s portfolio and the nature of the activities that would be required to manage that portfolio if the protective orders were to be revoked. This is at the heart of inquiry that the Court must undertake in order to determine SJ’s application under s 86 of the NSW Trustee Act: see [23]–[31] above. It is not helpful to speak in terms of “the everyday person” and “normal life”. It is necessary to consider all of SJ’s circumstances and all of the factual and expert evidence about her capabilities in order to determine whether she has the capability to manage her own affairs.

229. In SJ’s particular circumstances, if the protective orders are revoked, the management of her affairs will involve making decisions about what proportion of her assets, currently valued at $2.6 million, should remain invested in real property and what proportion should be held in other investments such as shares, managed funds and interest bearing accounts with financial institutions.

230. I accept SJ’s evidence that she would seek professional financial advice about those matters. However, SJ would need to make informed decisions based on that advice. The making of informed decisions would require SJ to understand the information presented in the advice and weighing up the potential risks and potential benefits of alternative courses of action identified in the advice, even where the advice recommends one course of action over others.

231. All of this would need to be done in a considered (that is to say, not impulsive) manner and with regard to both the short-term and long-term consequences or potential consequences of the decision. For example, a choice to allocate a larger proportion of SJ’s assets to fund the purchase of a new family home may provide immediate lifestyle benefits, but it would also reduce the funds available for investment in securities that may provide a source of income over many years of SJ’s life to supplement the income from her part-time work.

232. Similarly, the long-term consequences of decisions about discretionary spending on things such as holidays and home renovations would need to be taken into account. Depending on the frequency of such spending and the amounts involved, this might materially reduce the income-earning potential of the asset pool over time.

233. Having carefully considered all of the evidence summarised above, having made the findings set out above in relation to SJ’s poor memory and the difficulties that she experiences in managing the household finances (even in circumstances where most bills are paid by the manager of her estate), having observed the readiness with SJ to change her mind in the witness box about what she would do with her estate if managing it herself (deviating from the plan discussed with her financial adviser without being able to offer any reasoned explanation for the deviation) and having formed the view for the reasons set out in [218]–[225] above that Dr Jungfer’s evidence provides the most reliable expert assistance to guide the Court in determining whether or not it is satisfied that SJ in capable of managing her affairs, I have come to the conclusion that the evidence before the Court does not satisfy me that SJ has that capability.

234. I acknowledge that SJ and LJ strongly believe that SJ is capable of managing her affairs. I also acknowledge that SJ is presently managing to be the primary carer (indeed, the sole carer for most of each week) for three young children and also to work part-time. This is no small task. As Dr Jungfer, recognised, SJ has had to acquire and apply new learning in order to achieve this. The fact that SJ has done so is to be greatly admired.

235. However, I accept Dr Jungfer’s evidence that these achievements that SJ has made involve very different skills compared to financial decision-making and that they do no demonstrate that SJ is capable of managing her $2.6 million portfolio of assets: see [188]–[190], [196]–[197], [211]–[214] and [223] above. As I have said earlier, I also accept Dr Jungfer’s evidence that SJ suffers from lack of insight into her limitations and that the evidence does not support the conclusion that she has sufficient insight, presently or with the benefit of any new learning that she may be able to acquire, to manage a $2.6 million portfolio of assets, even with the benefit of professional financial advice. The neuropsychometric testing carried out by Dr Bogan in 2009 and 2011, which was conducted nine and eleven years after SJ sustained her brain injury and which Dr Jungfer regards as the most reliable testing available in this case, identified that SJ suffers from executive dysfunction, including difficulty inhibiting inappropriate responses, difficulty in initiating activities, difficulty in breaking down information into smaller chunks and becoming overwhelmed with large amounts of information. Dr Bogan’s report dated 17 April 2011 acknowledges that strategies for breaking down information into manageable units can be taught. However, having regard to Dr Jungfer’s evidence about SJ’s lack of insight into her limitations, I am not satisfied that SJ would be able to effectively apply any such learning. In any event, the evidence does not demonstrate that SJ has learned any strategies of the kind referred to by Dr Bogan that would assist her in making decisions of the kind to which I have referred above if the protective orders were revoked.

236. I accept the submission made on behalf of SJ that overdrawing of her accounts, by itself, would not necessarily justify the conclusion that SJ is not capable of managing her own affairs. However, the evidence established that SJ overdrew her accounts in addition to receiving financial assistance from her sister MJ in circumstances where SJ failed to prioritise her spending, and that SJ appeared to have no insight into how frequently this occurred and not altered her behaviour to avoid the problem: see [104]–[111], [209] and [212] above.

237. For all of these reasons, I am not satisfied that SJ has the capability to manage her affairs now or in the foreseeable future. On the contrary, my assessment of the evidence leads me to conclude that SJ would struggle to manage her affairs, even with the benefit of professional advice. There is therefore a real risk that, if the protective orders were revoked, SJ would be disadvantaged in the conduct of her affairs, in that money or property in her estate may be dissipated due to poor decisions made as a result of the cognitive deficits to which I have referred. That risk of dissipation is contrary to SJ’s welfare and best interests, which is the paramount consideration of the Court. The property and assets in her estate represent the proceeds of the compensation paid as a result of the District Court proceeding, which was intended to provide for SJ’s needs over the course of her life.

CONCLUSION AND ORDERS

238. For all of the reasons above, SJ’s application under s 86 of the NSW Trustee Act is dismissed and I will hear the parties in relation to costs.

239. I make the following orders:

1. Dismiss paragraphs 4 to 6 of the amended notice of motion filed on 11 October 2018.

2. Note that paragraphs 1, 2 and 2A of the amended notice of motion are not pressed.

3. Direct that SJ and each respondent to the amended notice of motion exchange written submissions in support of the costs orders that they contend should be made in relation to the amended notice of motion by 31 July 2020, and any submissions in reply to costs submissions made by another party by 7 August 2020.

4. Direct that a copy of all submissions referred to in (3) above be provided to the Associate to Williams J.

5. Note that the question of costs is to be determined on the papers.

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Endnotes

Decision last updated: 23 July 2020