LJ v Protective Commissioner - [2009] NSWADT 151

No judgment structure available for this case.

CITATION: LJ v Protective Commissioner [2009] NSWADT 151

DIVISION: General Division

PARTIES:
Applicant:
LJ
Respondent:
Protective Commissioner

FILE NUMBER: 083279

HEARING DATES: 17 December 2008
15 April 2009
30 April 2009

DATE OF DECISION:
19 June 2009

BEFORE: Leal S - Judicial Member

CATCHWORDS: Protected Estates Act – Protective Commissioner – powers as to property

LEGISLATION CITED: Administrative Decisions Act 1997
Protected Estates Act 1983

CASES CITED: The Protective Commissioner v "D" & Ors [2004] NSWCA 216

REPRESENTATION:
Applicant Representative:
Mr Ramage QC (for Ms Ramjan, Guardian ad Litem for the applicant)
Respondent Representative:
Mr Tim Tunbridge

ORDERS: 1. The decision of the Protective Commissioner to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia is set aside.
2. In substitution for that decision, a decision is made to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki’s visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.

Introduction

1 LJ is a 56 year old man who was diagnosed with Huntington’s disease in 1993. He lives alone in a one bedroom Department of Housing unit and does not work. He receives a disability support pension and has assets of approximately $21 613.70.

2 On 25 May 2007, an order was made by the Guardianship Tribunal that LJ’s estate be subject to management under the provisions of the Protected Estates Act 1983 and that the management of his estate be committed to the Protective Commissioner. An order was also made appointing the Public Guardian as LJ’s guardian for a period of 12 months to make decision on his behalf about his accommodation. This limited guardianship order was renewed on 22 May 2008 and the following function only given to the Public Guardian in relation to LJ: to make decisions on his behalf concerning major services to which he should have access.

3 On 14 December 2007, a request was made to the Protective Commissioner, by representation of Mr Robert Coombs MP, that funds be released from LJ’s estate to pay for LJ’s friend, Ms Eki, to come from Papua New Guinea to visit him for a period of three months.

4 On 18 December 2007, a decision was made by the Protective Commissioner to approve this request and to release the funds for Ms Eki’s travel. Upon being informed of this decision, LJ apparently informed Ms Gibson of the Protective Commissioner that he no longer wished to fund the travel for Ms Eki but rather wished to travel to Papua New Guinea himself. The Public Guardian advised LJ that he would need to obtain support from his case manager in writing before his request could be considered.

5 On 20 December 2007, a decision was made to refuse to release funds to enable LJ to travel to Papua New Guinea. According to the decision maker, LJ’s neurologist, Dr Williams, had advised that it was not in LJ’s best interests to either travel to Papua New Guinea or to pay for Ms Eki to travel to Australia. According to the delegate of the Protective Commissioner:

Dr Williams reported that LJ is not capable of considered or consistent decision and cannot contemplate the repercussions of such decisions. [The case manager for LJ] said that LJ exhibited lack of impulse control, perseveration and aggressive behaviour and these behaviours could put him at risk while away from community supports. Without this support from health care professionals to confirm LJ is capable of travel and staying in PNG, without support, and without risks to health and safety, the decision must be made to decline LJ’s request. Likewise on the basis of medical advice, the decision to release funds for Ms Eki’s travel must be revoked. Since the decision is based solely on health care professionals’ view, the case manager undertook to communicate the decision to LJ.

6 On 16 September 2008, LJ lodged an application in this Tribunal for review of a decision. LJ gave the following reasons for seeking a review of the Protective Commissioner’s decision of 20 December 2007 to decline funds for travel:

“I want my friend Barbara Eki to come to my place from PNG and I want to pay her fare and they refused. I am asking to review this to say yes.”

Jurisdiction

7 Despite the fact that there is no evidence before the Tribunal of an internal review having been conducted in relation to the initial decision of the Protective Commissioner dated 20 December 2007, on 28 October 2008, the Tribunal made a decision to accept LJ’s application in accordance with s55(3) of the Administrative Decisions Tribunal Act 1997.

8 Having accepted LJ’s application for review, the Tribunal’s role is to determine whether the Protective Commissioner’s decision is the ‘correct and preferable’ decision on the basis of all the relevant factual material and the applicable law: s63 Administrative Decisions Tribunal Act 1997.

9 When undertaking this task the Tribunal may exercise all of the functions that are vested in the Protective Commissioner. The Tribunal may affirm, vary, or set aside the Protective Commissioner’s decision. If the decision is set aside the Tribunal may substitute its own decision for that of the Protective Commissioner, or it may remit the matter to the Protective Commissioner together with any directions or recommendations that it chooses to make.

10 Under s24(1)(a) of the Protected Estates Act 1983, the Protective Commissioner has the power to exercise all functions necessary and incidental to the management and care of the protected person’s estate.

11 The Protected Estates Act does not stipulate any matters which the Protective Commissioner is required to take into account when she exercises her functions under s24 of the Act.

12 The Protective Commissioner’s role is to manage LJ’s estate in such a way as to allow his wants and needs to be met to the greatest extent that is reasonably possible. The tension between the person’s needs and wants and the available resources was expressed by the Court of Appeal in The Protective Commissioner v "D" & Ors [2004] NSWCA 216 as "securing the protected person’s estate for that person’s continued maintenance."

13 In previous cases, the Protective Commissioner has submitted that the relevant considerations when making a decision include the client's own views; the client's immediate and long term needs; the financial resources available; the client's previous, current and hoped-for lifestyle; the client's family commitments or obligations; arrangements made by the client when they were able to manage their affairs themselves; and views of the client and their family, and rights and views of probable beneficiaries after the person's death.

14 On 29 January 2009, the Deputy President of this Tribunal, Magistrate N Hennessey, appointed Ms Barbara Ramjan as the representative of LJ for the purpose of these proceedings and to act in the best interest of LJ. The appointment was made pursuant to s71 of the Administrative Decisions Tribunal Act 1997 which provides as follows:

“If it appears to the Tribunal that a party is an incapacitated person, the Tribunal may appoint any other person the Tribunal thinks fit to represent the party.”

15 An attempt to mediate this matter on 2 March 2009 was unsuccessful.

Decision under review

16 On 5 March 2009, Ms Ramjan, as Guardian ad Litem for LJ, put an open offer to the Protective Commissioner requesting that funds be used from LJ’s account to enable Ms Eki (who LJ refers to as his wife) to visit him in Australia.

17 In her open offer, Ms Ramjan noted that:

a.The visit was supported by LJ’s social worker, Mr Conaghan;
LJ had the finances available to him to fund the trip particularly as over the two years during which the proposed trip had been mooted, LJ had been supporting himself in independent living to the extent there had been an increase of approximately $2000 in his account;

b. The visit was to be for a limited period of two weeks and there had been no adverse circumstances arising in relation to LJ’s situation since his request to have Ms Eki come to Australia was first made in 2007. Rather, the circumstances had improved given that LJ has reduced his intake of alcohol and had accumulated further funds;

c. Conditions had been drafted to ensure the appropriate conduct of the visit that have been approved by Mr Conaghan, social worker, and Mr Vern Osborn, welfare worker, and signed by LJ. Ms Eki has also agreed to abide by the conditions.

d. Concerns of an alleged domestic violence incident involving LJ and Ms Eki on a previous visit related to a verbal argument only, as set out in the police COPS event record which states that ‘there was no fears of the victim and no fears of the police.’ The COPS event record pre-dated the initial decision of the Protective Commissioner to allow Ms Eki to visit LJ in Australia.
e. The costing of the proposed trip included airfares, airport transfers, accommodation, meal and entertainment allowances, visa and insurance costs to reach a total of $5110.

18 This open offer was rejected by the Protective Commissioner in a decision dated 9 April 2009.

19 A hearing into this matter was scheduled for 15 April 2009 but due to the ill health of Counsel for Ms Ramjan, Mr Ramage QC, the matter was adjourned until 30 April 2009.

20 At hearing on 30 April 2009, Mr Tunbridge for the Protective Commissioner submitted that the decision to be reviewed was not that of the 20 December 2007, which was a decision both to refuse to release funds to enable LJ to travel to Papua New Guinea and to revoke the decision to release funds for Ms Eki’s travel. Instead Mr Tunbridge submitted that the decision to be reviewed was the decision of Trevor Lester of 9 April 2009 in which he approved the recommendations put to him by Mr Tunbridge in a submission dated 7 April 2009. The submission provides as follows:

Issue

Reasons for decision

a. Barbara Eki does not read or speak English and the proposal that she visit Australia does not contain adequate safeguards by way of supervision and assistance to her and LJ whilst she is in Australia.

b. There is likelihood of repeat of LJ’s unacceptable behaviour towards Barbara. Dr David Williams is of the view that likelihood of LJ committing act of domestic harassment and violence upon Barbara is more likely increased because of the disinhibition of his behaviour caused by HD [Huntington’s disease] (see report of 23 February 2009). The involvement of Police in response to complaint of domestic violence could have serious consequences for LJ.

c. Should Barbara overstay her visit for whatever reason, this is likely to result in a costs blow out and an additional burden on LJ’s limited estate. Even on Ms Ramjan’s current estimate, the proposed cost of $5110.00 represents about one-quarter of his estate.

d. LJ now expresses the view that he does not want Barbara to visit Australia. He wants to accept his brother’s offer of a fully paid and supervised visit by him to PNG, instead.

e. The opinion by Dr Robert Hughes that LJ’s HD is deteriorating and that the time has come for LJ to be institutionalised.

It is submitted therefore that-

1. The Open Offer by Ms Ramjan be rejected and the decision to decline the release of funds for Barbara Eki’s visit to Australia be affirmed.

2. OPC investigate and give further consideration to possible release of funds for LJ’s ‘spending allowance’ in visiting PNG as per the proposal by Bob Bates, subject to further medical advice.

21 Mr Ramage did not object to Mr Tunbridge’s submission that this decision, rather than the earlier decision of 20 December 2007, was the decision to be reviewed by the Tribunal. On the basis of Mr Tunbridge’s submissions, the Tribunal is satisfied that the decision to be reviewed is the decision of the Protective Commissioner on 9 April 2009 to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia.

Documentary evidence

Issues raised by LJ’s family

22 In a letter dated 24 April 2007, LJ’s brother describes LJ’s erratic behaviour, states that he is unable to manage his finances and notes that while ‘Alice, LJ’s ‘unofficial’ Papua New Guinean wife or partner, has looked after LJ to the best of her ability…nutrition is not understood.’ He speaks of violent outburst by LJ and states that, ‘it must be obvious that LJ travelling by himself on an aircraft could be a danger to other passengers and himself, should something set him off on one of his violent rages.’

23 In a separate letter dated 25 April 2007, LJ’s sister supports the view that ‘everything possible should be done to stop LJ travelling back to PNG for his own safety as well as the safety of [his brother], his family and his national and non-national employees.’

24 A letter from LJ’s sister to the Protective Commissioner dated 19 November 2008 and a subsequent statement dated 28 November 2008 give reasons as to why LJ’s request for monies to bring Ms Eki from Papua New Guinea should be refused. According to LJ’s sister:

- on her previous visit to Australia, LJ was violent and aggressive towards Ms Eki;

- Ms Eki’s financial position is such that she would not be able to provide for her own accommodation and needs while in Australia;

- Ms Eki can only speak Pidgin, the national language of Papua New Guinea and is unable to speak or understand English.

25 On 15 February 2009, LJ’s sister again wrote to the Protective Commissioner highlighting her concerns in relation to a visit by Ms Eki to LJ.

Alice is a person who does not speak, read or write English and would be terrified to travel on and off aircraft and find her way through airport terminals let alone come to a strange caravan park not knowing how to get around or be able to communicate with other people who may be staying there.

26 LJ’s sister has further concerns in relation to the possibility of Ms Eki falling pregnant in Australia and of the child being born with the gene for Huntington’s Disease and of the possible transmission of sexual diseases between LJ and Ms Eki. She also raised concerns as to LJ’s consumption of alcohol.

27 LJ’s brother opposes the proposed visit by Ms Eki on the basis that ‘the money would not be well spent’, and that were Ms Eki to become pregnant, the child might inherit the Huntington’s Disease gene and under the Papuan New Guinea ‘wontok’ system of group liability for extended families, LJ’s brother would become liable for the pregnancy. Instead of the proposed visit by Ms Eki to Australia, LJ’s brother proposed accompanying LJ to Papua New Guinea, where he would be able to see Ms Eki. LJ’s brother offered to pay all the expenses associated with the trip to Papua New Guinea.

28 In a statement dated 27 April 2009, LJ’s second sister states that she does not believe that the proposed visit by Ms Eki to Australia would be in LJ’s interest. She highlights LJ’s aggressive behaviour, particularly towards female cleaners and care workers who attend his unit and states that he does not attend to his personal hygiene or to the hygiene of his unit. He became aggressive when she said to him, ‘I believe you are still sending money to Alice.’ She states that:

“I have no doubt that if Alice were to visit LJ again, then she would be subjected to acts of domestic violence with potentially very serious consequences for both her and LJ…LJ cannot care for himself. I believe the time is near when LJ will need to be admitted to nursing home care.”

29 LJ’s second sister made the following observations in relation to Ms Eki’s proposed visit to Australia:

“I understand..that if Alice Eki visits Australia, it is proposed that she be accommodated at LJ’s expense at the Spinnakers Leisure Park…This establishment is on the other side of the Pacific Highway to where LJ lives…If LJ attempted to walk to the Spinnakers Leisure Park to see Alice, then he would have to cross the highway…LJ’s poor mobility and lack of road sense would make it extremely hazardous for him to attempt to do so.

Medical & welfare concerns

30 A report by Mr Conaghan, Senior Social Worker for LJ, dated 14 May 2007, states that:

31 A report to the Protective Commissioner dated 3 December 2008 by Mr Conaghan considered issues to be taken into account when considering LJ’s request to have Alice Eki visit him in Australia. These issues are that LJ’s unit is unsuitable to accommodate more than one person comfortably; that he regularly drinks alcohol throughout the day, has a propensity to become agitated and more argumentative when he has been drinking and apparently has limited awareness of the influence of alcohol upon his behaviour. In his report, Mr Conaghan reached the following conclusion:

“Although I consider LJ would normally has a claim to have Ms Eki visit him as part of their friendship, I feel that in the circumstances which he now finds himself mitigate against his strong wish to have Ms Eki visit him. The fact that LJ has Huntington’s disease which diminishes his awareness of the extent of his disability upon his daily functioning, his inability to consider the needs of others and think through clearly the ramifications of any decision he wishes to act upon, the inappropriate nature of his behaviour towards Mr Eki and to female care workers in the past and his lack of insight into the effect of his behaviour and his frequent, possible impulsive consumption of alcohol, suggest that allowing Ms Eki to visit would not be appropriate for either party.”

32 A further letter from Mr Conaghan to the Protective Commissioner dated 26 February 2009 refers to LJ’s alcohol minimisation program and states as follows:

“I asked LJ why he was drinking less and he indicated that his brother had suggested that it was better for him to curtail his drinking. This response is consistent with information provided by Mr Osborn. LJ did say that he would not drink any alcohol when Ms Eki was visiting.
In terms of the hours of contact between LJ and Ms Eki, I have discussed this with LJ. He understands that if Ms Eki is to come to Australia there will be certain conditions imposed upon them. LJ has given his word to me that he will oblige by any reasonable condition in order to facilitate Ms Eki’s visit.

He understands unequivocally that contravention of these conditions by either party could jeopardise the continuation of the visit at any time. I do not see it as my role to ensure a strict compliance with these conditions. LJ does receive daily contact from service providers from Monday to Friday each week which has a monitoring function as well. However, LJ was agreeable to me contacting him by phone during Ms Eki’s visit. I am also willing to contact Ms Eki during her visit when I have her contact details to understand how she is experiencing her visit. Having met Ms Eki previously, I would also be willing to meet her either alone or with LJ. If I believe there is an issue affecting the satisfactory completion of Ms Eki’s visit, I will contact the Office of the Protective Commissioner upon my awareness of that event.”

33 A NSW Police COPS events report dated 22 June 2006 noted that police attended LJ’s flat on 21 June 2006 in relation to an alleged domestic dispute between LJ and Ms Eki, who was visiting Australia, but that no further action was taken in the matter. The report notes that no concerns or fears were held by either the victim or police.

34 A report by LJ’s treating neurologist, Dr David Williams, dated 23 February 2009 states that in his opinion, given the degenerative features of Huntington’s disease, LJ’s time of living essentially independently, is limited. A further report by Dr Williams dated 18 February 2009 to Dr Hughes gives the following prognosis for LJ:

35 In relation to the proposed visit by Ms Eki, Dr Williams stated that

36 A Disability Advisor’s report (Needs Assessment) dated 27 March 2009 considers the viability of Mr Bates’ brother’s proposal to have LJ travel to Papua New Guinea. In the report, the following observations are made:

“Presently LJ is said not to require any specialised aids and equipment apart from incontinence pads, and the cost for these are being met via Community Options.

37 According to the Disability Advisor’s report, LJ stated that he wanted to travel to Papua New Guinea to meet up with his old friends. He said that he did not want Ms Eki to visit Australia as she does not speak English and because his flat was too small to accommodate her.

38 The author of the Disability Advisor’s report, Mr Cventanovski, expressed the following views:

“Based on discussions with Mr Osborn and Mr Conaghan, the cost of LJ’s future care needs are expected to be met by the residential facility that he will be residing in. LJ is also likely to be eligible to have his care needs and care costs met by funding that is available for people who had Huntington’s Disease. Both Mr Osborn and Mr Conaghan were confident that LJ’s care and accommodation needs would be met adequately even if his only source of income was a Disability Support Pension or an Aged Pension.
LJ currently has a very limited social life and the deterioration of his overall health and wellbeing has resulted in him not being able to engage in the social activities that still interest him. At present the only social outlet that is still available to him is travel to PNG. As stated previously, LJ has repeatedly travelled to PNG and has developed a social network of friends there. It is not known how much longer the option will be available to LJ, from a medical perspective. As noted previously in the report of Dr Williams, LJ is likely to require residential care in a period of 12 to 18 months.”

39 In a referral to LJ’s geriatrician dated 26 March 2009, LJ’s general practitioner, Dr Hughes wrote:

40 In a report dated 31 March 2009, LJ’s geriatrician, Dr Walsh, found that LJ’s condition had progressed to the dementing stage, as shown by decreasing personal care, faecal incontinence, impulsivity, disinhibited behaviour and inappropriate urination. In light of his developing Huntington’s dementia, Dr Walsh suggested that travel outside his local area be discouraged.

41 In an updated note on Mr LJ Bates by his social worker, Mr LJ Conaghan, he spoke of LJ’s incontinence and noted that LJ initiated discussion on his regular telephone contact with Ms Eki.

42 According to Mr Conaghan, when LJ spoke about Ms Eki, ‘he smiled with glee.’

43 An email from LJ’s neurologist, Dr Williams, to Ms Ramjan refers to her proposal for Ms Eki to travel to visit LJ and states:

“After our discussion, I think your proposal addresses the concerns about Ms Eki’s visit as well as one could reasonably expect. Taking everything into account, I would agree with the proposed visit, subject to the conditions you have specified.”

44 In his report to Ms Ramjan dated 10 February 2009, LJ’s social worker, Mr Conaghan, supports the proposed visit by Ms Eki and states:

“Although LJ has HD (Huntington’s Disease) I consider that there are reasonable grounds upon which to reconsider the original decision made by the OPC [Office of the Protective Commissioner]not to allow Ms Eki visit him. LJ has maintained a continuing relationship with Ms Eki over the past 18 months and has managed to bring this matter to appeal after consulting many persons including friends, support persons and local parliamentarians. His recent history has also indicated that he can modify his behaviour (alcohol intake) and significantly reduce the frequency of antisocial conduct. In addition, LJ has had HD for nearly twenty years and this may be the last opportunity he has of seeing Ms Eki while he continues to live in the community. Finally, there are some agreed upon conditions about Ms Eki’s visit with LJ which overcome some of the earlier concerns about her visit.”

45 Mr Conaghan describes the relationship between LJ and Ms Eki as follows:

“LJ had brought Ms Eki to Australia in 2006 on a three month visitor’s visa. He returned Ms Eki to PNG in June of that year. Since LJ’s financial management was placed in the hands of the OPC, LJ has continued each fortnight to send Ms Eki money to support her and her family in PNG. The OPC is aware of these transactions. In addition, LJ is in regular contact with Ms Eki by telephone. Despite the impact of the Huntington disease, LJ has managed to maintain an ongoing relationship with Ms Eki.”

46 Mr Conaghan indicated that having displayed symptoms of Huntington’s disease since 1993, LJ was in the latter stages of the disease, would soon require nursing home care and accordingly the ‘opportunity for LJ to have Ms Eki visit while he remains in the community may not be available to him at a later time’. Mr Conaghan noted that on average, a person displaying symptoms of Huntington’s disease would be expected to live for a further 17 years only.

Financial issues

47 According to a transaction statement for LJ’ bank account, as at 28 April 2009, he had a balance of $21 613.70. At the time of the initial decision of 18 December 2007 to approve Ms Eki’s visit to Australia, according to statements held by the Protective Commissioner, LJ had an account balance of $17 455.58.

Evidence in relation to open offer put to the Protective Commissioner by the Guardian ad litem

48 In an affidavit dated 14 April 2009, Ms Barbara Ramjan confirms her appointment as Guardian ad Litem for LJ.

49 She describes a conversation she had with LJ:

“I met with LJ on Friday 20 March at his home. He said that his brother had offered to take him to Nuiguini and it would be cheaper than bringing Ms Eki to Australia as his brother would pay for everything. He said that he wanted to go to Nuiguini and he could see Ms Eki there. He said that he would do what he wanted and she would be waiting at the airport and he would go with her. I asked if he would like to do both – go to PNG and bring her here – he said ‘can’t do that, this way cheaper for me.’ I asked him if he could do both would he like to. He was hesitant but eventually said yes, only after being assured that the two were possible. At the time I had no reason to believe they would not be.
Following our meeting on 20 March 2009, LJ was relieved to know that the offer of going to Nuiguini made by his brother should not be viewed as being dependent on the withdrawal of his appeal…He was relieved to hear that one was not dependent on the other and then spoke of Ms Eki, referring to her as ‘my girl.’
LJ’s wish to bring his common law wife, Ms Eki, to Australia for a short final visit remains as strong and desired as it was when I first met with him.”

50 Ms Ramjan spoke to Ms Eki through an interpreter and is satisfied that Ms Eki fully understands that she will be living on her own in separate accommodation and will be walking to LJ’s accommodation. She said she was happy with the conditions of the visit. Ms Ramjan noted that she has located a Pidgin speaking resident who is prepared to be available by phone should Ms Eki confront an emergency and require immediate assistance.

51 According to Ms Ramjan:

“It is common ground that LJ is unable to visit Ms Eki because of his frail physical condition as he suffers from Huntington’s disease and is irretrievably and continuously deteriorating. Given his current health status, his ability to enjoy Ms Eki’s visit is quickly diminishing. The evidence establishes this visit appears to be his last opportunity to see her. Ms Eki’s finances do not permit her to meet the cost of a trip to Australia unassisted by LJ.”

52 Ms Ramjan proposed that:

This is to be confirmed by the purchase of a ticket of only two weeks duration;

Ms Eki be accommodated separately to LJ. This has been investigated and an appropriate accommodation site has been located approximately 700-800 metres from LJ’ residence;

Ms Eki and LJ agree to not spending overnight together. Both have given an undertaking that this will not occur;

Ms Eki refrain from alcohol while in LJ’ company. Both have given such an undertaking;

LJ continue with his alcohol minimisation programme. LJ has given that undertaking to me;

Ms Eki be transported to Marks Point from Sydney Airport and returned to Sydney airport by booked and reserved transport. Ms Eki has agreed to this transport;

LJ has agreed to cover the costs of the holiday willingly and that cost approximates $4000.

53 Ms Ramjan states that LJ’s social worker MrConaghan and welfare worker Mr Vern Osborn are both in agreement with the visit.

Oral evidence by Ms Ramjan

54 Ms Ramjan gave lengthy oral evidence before the Tribunal. She told the Tribunal that in order to ensure a safe and secure environment for Ms Eki during her trip to Australia, LJ’s social worker had offered to give his phone number to Ms Eki and to assist her as required. The former Chief Justice of the ACT is a fluent Pidgin speaker who has also offered to make himself available to Ms Eki should she require any assistance during her visit to Australia. The son of the current ambassador of Papua New Guinea has also offered to take calls from Ms Eki and provide assistance to her as required. Ms Ramjan has since found a hotel for Ms Eki which is cheaper than that quoted in her open offer to the Protective Commissioner, is closer to LJ’s accommodation and would not necessitate crossing the nearby freeway. Mr Conaghan and Mr Osborn have agreed to drop in on Ms Eki and LJ every week day for the duration of Ms Eki’s stay. Arrangements can be made should Ms Eki’s stay end sooner than otherwise planned. Ms Ramjan noted that LJ’s treating neurologist, Mr Williams, had agreed to the proposed visit subject to the conditions stipulated by Ms Ramjan, and as agreed to by LJ. In view of LJ’s continuing deterioration due to Huntington’s Disease, Ms Ramjan expressed her concern that any visit by Ms Eki be arranged as a matter of priority.

55 In relation to stated concerns as to LJ’s aggressive behaviour, Ms Ramjan stated that he reacts badly to news of his deterioration due to Huntington’s Disease. According to Ms Ramjan, this explained his outburst to his treating geriatrician, Dr Walsh. Concerns about previous carers have been allayed with the commencement of new carers. Ms Ramjan stated that the conditions put forward by her would give some space to Ms Eki and LJ during the proposed visit so as to minimise any opportunity for problems.

56 In relation to Mr Tunbridge’s concern about future expenses to be met by LJ, Ms Ramjan referred to evidence by LJ’s social worker, Mr Conaghan, that ‘he had never had a Huntington’s disease client who hadn’t been given access to a wheelchair when in a nursing home.’ According to Ms Ramjan, Mr Conaghan had ‘no concern that LJ wouldn’t have what he needed.’

Submissions

57 In his submissions, Mr Tunbridge stated that his concerns about the proposed visit were set out in the decision of 9 April 2009 to refuse the open offer put forward by Mr Ramjan. In particular, Mr Tunbridge was concerned that Mr Eki doesn’t speak English and that there are not enough safeguards in place for the trip. Although Mr Conaghan and Mr Osborn have offered to be available by phone, neither of them speak Pidgin. Although a Pidgin speaker, the former Chief Justice of ACT is available only by telephone. Mr Tunbridge submitted that without proper support in place, the Tribunal could not be satisfied that the proposed conditions put forward by Ms Ramjan would be met and that Ms Eki would leave after two weeks. An overstaying by Ms Eki would place a further financial burden on LJ’s estate. According to Mr Tunbridge, in the absence of appropriate support, the visit would be fraught with risks and dangers to LJ and Ms Eki. This is particularly so in the light of LJ’s history of involvement with the police and given the disinhibition that is a characteristic of LJ’ further deterioration with Huntington’s.

58 Mr Ramage made submissions on behalf of Ms Ramjan. He highlighted the importance to LJ of being able to see the woman he refers to as his common law wife for a final time while he is still able to live independently. He submitted that LJ’s family do not agree with LJ’s relationship with Ms Eki and so will not support any proposal for a reunion between LJ and Ms Eki. Mr Ramage submitted that as a Pidgin English speaker, Ms Eki would be able to make herself understood in English. In any case, as a Pidgin speaker, the son of the ambassador of Papua New Guinea, and the former Chief Justice of the ACT will make themselves available to assist Ms Eki.

59 In relation to safeguards, LJ’s social worker will visit the couple each day to ensure the visit is going well. There is, according to Mr Ramage, no evidence that Ms Eki might overstay her visa.

60 Mr Ramage reiterated the submission that LJ continues to wish to have Ms Eki visit him in Australia – it is a request he has made for 18 months and continues to make.

61 Mr Ramage referred to the role of the Protective Commissioner which is described in The Protective Commissioner v D and ors [2004] NSWCA 216 by McColl JA (Mason P and Giles JA agreeing) as follows:

The manager stands in the shoes of a person who is unable to manage his/her affairs by virtue of circumstances beyond his/her control. The manager exercises a protective and benevolent role in the sense that the manager’s task is to ensure that protected person’s estate for that person’s continued maintenance.

62 Mr Ramage submitted that the word ‘maintenance’ should be read in the context of daily living so as to encompass emotional maintenance including care and affection, particularly as the visit in question is one of a farewell visit given the advanced state of LJ’ Huntington’s disease.

Findings

63 The role of the Tribunal is to make the correct and preferable decision on the basis of all the evidence before it. In reviewing this decision, the Tribunal stands in the shoes of the decision maker. The Tribunal is satisfied that the decision before it is that of made by the Protective Commissioner on 9 April 2009 to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia.

64 In affirming the decision to decline the release of funds for Ms Eki’s visit to Australia, the Protective Commissioner has concerns in relation to language and supervision; likelihood of unacceptable behaviour; financial considerations; health deterioration and the views of LJ. The Protective Commissioner also submitted evidence in relation to concerns by LJ’s family as to the proposed visit by Ms Eki.

65 In determining whether the correct and preferable decision was made, the Tribunal will consider each of these concerns in the light of all the evidence before it.

Language and supervision

66 The concerns that Ms Eki does not read or speak English and that the proposed visa does not contain adequate safeguards by way of supervision and assistance to her and LJ whilst she is in Australia were addressed by Mr Ramjan in oral evidence before the Tribunal. I am satisfied that whilst Ms Eki is in Australia, the former Chief Justice of ACT and the son of the ambassador of Papua New Guinea, who are both fluent Pidgin speakers, will provide their contact details to Ms Eki so that she can contact them and speak to them in Pidgin in relation to any concern she may have. I am satisfied that LJ’s social worker, Mr LJ Conaghan and his welfare worker, Mr Vern Osborn, will be available to be contacted by either LJ or Ms Eki for the duration of Ms Eki’s stay. I am satisfied that Mr Conaghan will drop in on the couple daily during Ms Eki’s stay. I am satisfied that the availability of fluent Pidgin speakers and LJ’s social worker and welfare worker will provide an adequate safeguard by way of supervision and assistance to Ms Eki and LJ whilst Ms Eki is in Australia.

Likelihood of unacceptable behaviour

67 I understand the concerns of the Protective Commissioner in relation to the possibility of unacceptable behaviour by LJ towards Ms Eki. I am satisfied, however, that the proposal put forward by Ms Ramjan would minimise any likelihood of such behaviour. I am satisfied that since Ms Eki was last in Australia, LJ has greatly reduced his consumption of alcohol and has agreed to continue his alcohol minimisation program while Ms Eki is in Australia. Likewise, Ms Eki has agreed not to consume alcohol with LJ whilst she is in Australia. The agreement that the couple be separately accommodated at night and that Ms Eki leave LJ’s unit after dinner will give them some space from each other and reduce any pressure that LJ might feel were the couple to be together without any break during the two week period. I am satisfied that any concerns initially held by Dr Williams have been allayed following his consideration of the conditions placed on Ms Eki’s stay and his discussions with Ms Ramjan. I am satisfied from Mr Ramjan’s evidence and from her email correspondence with Dr Williams that he is now supportive of the proposed visit by Mr Eki.

68 I note that the involvement of police in 2006 is a concern, but I am satisfied from the details contained on the COPS event report that, at the time of this event, it was listed as a verbal argument and that neither the police nor Ms Eki held fears for her safety. I am satisfied that a repeat of the police involvement would be unlikely given the reduction of LJ’s alcohol intake and the stipulation that the couple be accommodated separately for the duration of Ms Eki’s stay.

Financial considerations

69 In December 2007, when LJ had a balance of $17455.58, the Protective Commissioner was prepared to release $2700 to enable Ms Eki to travel to Australia. This would have left LJ with a balance of $14755.58. LJ now has a total account balance of approximately $21613.70. Deducting the proposed amount of $5110 for Ms Eki to travel to Australia, LJ would still be left with $16503.70. Furthermore, on the evidence of LJ’s disability advisor and his social worker, any equipment required by LJ as his condition deteriorates, such as a wheelchair or an air mattress, would be met by either the nursing home accommodating LJ or by the relevant government organisation.

70 In light of this evidence, I am not satisfied that LJ’s financial circumstances would preclude his funding a trip for Ms Eki to visit him. I am satisfied that in the light of LJ’s continued receipt of the disability support pension and the availability of services to provide the relevant equipment for his future needs, allowing funds to be release for Ms Eki’s visit would not impede LJ’s estate from being managed in a manner to secure his estate for his continued maintenance. There is no evidence that Ms Eki would overstay her visa. On the evidence before the Tribunal, Ms Eki did not overstay her visa on her last visit to Australia in 2006. In any case, there is no evidence before me that in such a case, the estate of LJ’ would be forced to pay for the costs incurred by Ms Eki should she indeed overstay.

LJ’ views

71 I am satisfied from the evidence given by Mr Ramjan as Guardian ad Litem for LJ that it remains his wish that Ms Eki visit him in Australia. He has signed conditions for the visit and has told Mr Ramjan that he wishes to bring Ms Eki to Australia to visit him. He would also like to accept his brother’s offer of a fully paid and supervised visit by him to Papua New Guinea.

Health deterioration

72 As LJ’s general practitioner, Dr Hughes has expressed the view that the time has come for LJ to be institutionalised. His opinion differs from that of LJ’s treating neurologist, Dr Williams who, in a report dated 18 February 2009, stated that it is likely that LJ would be need to be institutionalised in the next 12 to 18 months. As his treating neurologist, I give greater weight to the opinion of Dr Williams than to that of his general practitioner, Dr Hughes. I find that LJ’s deteriorating health should not preclude Ms Eki’s visit to Australia.

73 I note the report of LJ’s social worker, Mr Conaghan, who speaks of LJ’s strong commitment to Ms Eki in that he continues to send money to her on a fortnightly basis, is in regular telephone contact with her and ‘despite the impact of the Huntington disease, has managed to maintain an ongoing relationship with her.’ I agree with Mr Conaghan that given LJ’s health deterioration, this might be the last opportunity for Ms Eki to visit LJ while he remains in the community.

Family concerns

74 I note the concerns of LJ’s family. In view of their earlier concerns as to the risks of LJ’s flying, it is clear that a more feasible option to enable LJ to see Ms Eki, who he refers to as his wife, is for her to travel to Australia to see him. I note that LJ remains keen to take up his brother’s offer to take him to Papua New Guinea. This, however, is not an issue before the Tribunal.

75 The concerns raised by LJ’s family as to possible aggression by LJ, the unsuitability of his accommodation, language issues for Ms Eki and LJ’ financial situation have been dealt with in the proposal put forward by Ms Ramjan and have been considered above. I am satisfied that in view of LJ’s medical condition and the effects of his current medication as outlined by Dr Williams in a documented conversation with Ms Ramjan as contained on file, the likelihood of Ms Eki falling pregnant whilst in Australia is slim.

Conclusion

76 In reaching my decision, I have considered all the concerns put forward by the Protective Commissioner and by members of LJ’s family in relation to the proposal for Ms Eki to visit LJ. I have also considered the future needs of LJ and the views of LJ, as put forward by his Guardian ad Litem, Ms Ramjan. It is clear from Ms Ramjan’s evidence that LJ views Ms Eki as his wife, that he has continued to support her financially and that it is his fervent wish to see her again.

77 On the basis of all the relevant factual material before me and the applicable law, I am not satisfied that the decision to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia was the correct and preferable decision. On all the evidence, the correct and preferable decision would be to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki’s visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.

Orders

1. The decision of the Protective Commissioner to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia is set aside.

2. In substitution for that decision, a decision is made to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki’s visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.

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Citations

LJ v Protective Commissioner [2009] NSWADT 151

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Statutory Material Cited

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Protective Commissioner v D [2004] NSWCA 216

CITATION:	LJ v Protective Commissioner [2009] NSWADT 151
DIVISION:	General Division
PARTIES:	Applicant: LJ Respondent: Protective Commissioner
FILE NUMBER:	083279
HEARING DATES:	17 December 2008 15 April 2009 30 April 2009
DATE OF DECISION:	19 June 2009
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Protected Estates Act – Protective Commissioner – powers as to property
LEGISLATION CITED:	Administrative Decisions Act 1997 Protected Estates Act 1983
CASES CITED:	The Protective Commissioner v "D" & Ors [2004] NSWCA 216
REPRESENTATION:	Applicant Representative: Mr Ramage QC (for Ms Ramjan, Guardian ad Litem for the applicant) Respondent Representative: Mr Tim Tunbridge
ORDERS:	1. The decision of the Protective Commissioner to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia is set aside. 2. In substitution for that decision, a decision is made to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki’s visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.