PZ v NSW Trustee and Guardian
[2011] NSWADT 48
•10 March 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: PZ v NSW Trustee and Guardian [2011] NSWADT 48 Hearing dates: 12 April 2010, 17 May 2010, 24 May 2010, 21 June 2010, 19 July 2010, 9 August 2010 Decision date: 10 March 2011 Before: S Leal, Judicial Member Decision: The decision of the Public Guardian that TG is to reside on a permanent basis with his son, TF, is set aside. In substitution for that decision, a decision is made that TG is to reside on a permanent basis with his daughter, PZ, on condition that, unless the Public Guardian agrees otherwise, PZ adheres to the following access arrangements: that PZ is to facilitate access to TG for TF and his family on a monthly basis commencing at 3pm on Friday 25 March 2011. At 3pm on Friday 25 March 2011 and at 3pm on the last Friday of each subsequent month, PZ is to drop TG to TF and his family at Blacktown McDonald's. At 3pm on Sunday 27 March 2011 and at 3pm on the Sunday following the last Friday of each subsequent month, PZ is to pick up TG from Blacktown McDonald's .
Catchwords: Guardianship Act - accommodation function - access arrangements - dementia Legislation Cited: Administrative Decisions Tribunal Act 1997; Guardianship Act 1987;
Guardianship Regulations 2005Category: Principal judgment Parties: PZ (Applicant)
NSW Trustee and Guardian (1st Respondent)
TF (2nd Respondent)
TG (3rd Respondent)Representation: Counsel :
E Stolier (3rd Respondent)
PZ (Applicant in person)
NSW Trustee and Guardian (1st Respondent)
TF (2nd Respondent in person)
B Ramjan (3rd Respondent, Guardian ad litem)
Guardianship Tribunal
File Number(s): 093343 Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
reasons for decision
Introduction
TG is a 87 year old man who has dementia and a history of strokes. He has two adult children: his son, TF, who lives with his family in the eastern suburbs in Sydney, and his daughter, PZ, with whom TG has been residing in Bilpin, NSW since March 2009. Prior to this, TG had been living by himself in a rented unit in the eastern suburbs in Sydney.
On 24 April 2009, a limited guardianship order was made by the NSW Guardianship Tribunal in relation to TG. This order was reviewed and renewed on 31 July 2009 and provided that TG remain under the guardianship of the Public Guardian for a period of two years. Under this order, the Public Guardian was given the functions of accommodation, health care, medical and dental consent, services and access. The order was made subject to the following condition:
The guardian, in the exercise of the above powers and functions, shall take all reasonable steps to bring [TG] to an understanding of the issues affecting him and shall obtain and take into consideration, but not be bound by, his views when significant decision are to be made.
On 31 July 2009, a financial management order was made by the Guardianship Tribunal committing the management of TG's estate to the NSW Trustee.
On 13 October 2009, in exercising its powers in relation to the accommodation function, the NSW Public Guardian ('Public Guardian') made the decision that TG was to reside on a permanent basis with his daughter, PZ, in Bilpin NSW. In making this decision, Ms Ruth Kaye of the Public Guardian gave paramount weight to the views of TG that he wished to live with PZ but have regular contact with TF. TG's view were obtained, according to Ms Kaye, 'with and without the presence of family members and in different environments', including before the Guardianship Tribunal. Ms Kaye also took into consideration the fact that TG had been living with PZ on a full-time basis since March 2009 and that moving him 'could cause him significant distress given his degree of dementia.' Ms Kaye also took into consideration PZ's long term involvement in TG's care in the past and the fact that TG had lived with PZ for considerable periods of time in the past. Ms Kaye also relied on medical reports stating that TG was in good health and was being well-cared for by PZ. To counter concerns of isolation and lack of activities for TG, a day program schedule was discussed with PZ. The decision of the Public Guardian that TG reside permanently with PZ was made contingent upon the successful implementation of an access plan to ensure that TG has regular contact with his other family members. A failure by the parties to implement such a plan would result in the access plan being reviewed.
On 27 October 2009, TF requested an internal review of this decision which was completed on 20 November 2009. On internal review, the original decision of the NSW Public Guardian ('Public Guardian') was set aside and a new decision made that TG reside on a permanent basis with his son, TF, at TF's home. In making this decision, Ms Patricia Davidson of the Public Guardian placed greatest weight on TG's previous lifestyle choices and his demonstrated desire to have a relationship with both his children and his extended family. Ms Davidson found that for a major part of his life, TG had lived, not in a rural environment where he now finds himself, but rather in the eastern suburbs of Sydney in close proximity to TF and his family, with whom he had regular and spontaneous family contact. In making her decision, Ms Davidson accorded little weight to the expressed wishes of TG given that , according to ACAT officer Ms Margaret Phillips, and TG's then separate representative, Ms Nihal Danis, TG was open to influence and manipulation and so was unable to provide a clear view as to his wishes. The decision that TG reside on a permanent basis with PZ was to be contingent upon the successful implementation of an access plan to ensure that TG had regular contact with his other family members. If such an arrangement could not be implemented, the accommodation decision would have to be reviewed.
On 22 December 2009, PZ lodged an application for review against this decision to the Administrative Decisions Tribunal (NSW) ('the Tribunal') seeking orders that TG be solely cared for by her and remain living with her in Bilpin, and that PZ have enduring guardianship of TG.
On 23 February 2010, the Tribunal made a decision to stay the decision of the NSW Trustee and Guardian that TG reside on a permanent basis with his son, TF, at TF's home.
The Tribunal hearing took place over six days over a period of four months. The hearing was long in light of the many witnesses called by each party, the lengthy (and often hostile) cross-examination of TF and PZ by one another, the availability of TG and the need to keep the hearing days short in light of TG's needs as an elderly man suffering from dementia.
PZ was self-represented. TF was also self-represented although the Tribunal gave leave for his daughter, ABM, to assist him throughout the Tribunal proceedings. This decision was made by the Tribunal as a means of progressing the proceedings and limiting the hostility between siblings, PZ and TF.
Ms Barbara Ramjan was appointed by the Tribunal s71(4) of the Administrative Decisions Tribunal Act 1997 ('the Act') to represent the interests of TG. On the second day of the Tribunal hearing, Ms Ramjan sought leave for Ms Elizabeth Stolier of Counsel to represent her. The Tribunal granted leave for Ms Stolier to appear on Ms Ramjan's behalf.
The Public Guardian was represented by Ms Catherine Phang.
Over the course of the hearing, an interim access agreement was reached between the parties. This provided TF with weekend access (from Friday 3pm to Sunday 3pm) to TG on a monthly basis, with the drop off/pick up point being at Blacktown McDonald's. After this decision was reserved, the parties agreed to continue these access arrangements.
Jurisdiction
Section 80A of the Guardianship Act 1987 ('Guardianship Act') provides that an application may be made to this Tribunal for a review of a decision of the Public Guardian that is made in connection with the exercise of the Public Guardian's functions under the Guardianship Act as a guardian, and is of a class of decision prescribed by the Regulations.
Regulation 17 of the Guardianship Regulations 2005 provides that all decisions of the Public Guardian made in connection with the exercise of its functions are prescribed for the purposes of section 80A of the Guardianship Act. Hence the decisions made by the Public Guardian for TG in relation to the accommodation and access function are decisions in respect of which an application may be made for review to the Tribunal.
Applicants who may apply to the Tribunal under s80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the ADT, adversely affected by the decision' (s80A(2)(d)). I am satisfied that the applicant is currently the carer for her father, TG, and so falls within the ambit of the provisions of s80A.
In conducting the review, it is the role of this Tribunal to conduct a merits review to determine whether the Public Guardian's decision that TG reside with his son, TF, on a permanent basis (contingent upon the successful implementation of an access plan to ensure TG's regular contact with other family members) is the correct and preferable one having regard to the material before the Tribunal including any relevant factual material and any applicable written or unwritten law. (section 63 of the Act). In making its decision, the Tribunal is to have regard to the principles set out in section 4 of the Guardianship Act, which provide as follows:
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities 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,
(h) the community should be encouraged to apply and promote these principles.
Evidence
The following relevant documents form part of the evidence before the Tribunal in this matter:
Report by Dr Walker, Consultant Cardiologist, dated 1 June 2009 in relation to TG. In part, the report states as follows: 'I have seen [TG] on two occasions, the first being on 29 September 2008 and the second on 1 June 2009..When I first saw [TG], he was suffering progressive shortness of breath and feeling extremely tired....I organised some blood tests and he was clearly anaemic with a macrocytic film and a borderline B12 level. His homocysteine at that stage was also very high...Although this often represents pernicious anaemia, it also may be related to nutritional deficiency...I note that he moved in with his daughter, [PZ], in February of this year and I have records of his blood tests from last June until now and it appears with the better nutrition and care that he receives under his daughter's care that his blood count has returned to entirely normal...I would therefore support any move that would see [TG] under his daughter's watchful and excellent management on a permanent basis as it is obviously much better for his health.'
Apprehended Domestic Violence Order (Final Order) in force for 12 months from 21 September 2009 ordering that TF not assault or intimidate or stalk PZ or go within 200m of the premises as which PZ may reside or work.
A letter from M Cook of Vizzone Ruggero and Associates Lawyers dated 24 May 2010 advising that the firm acted on behalf of TF in relation to a Common Assault domestic violence charge which was listed for hearing on 21 September 2009 and confirming that the charges were dismissed at this hearing.
Medical report by Dr Meng Chew, staff specialist in aged care and geriatrics with the Aged Care Assessment Term for Sydney West Area Health Service. The report, which is undated but written after having seen TG on 2 March 2010, states in part: 'As on previous assessment, TG is pleasant and engaging in conversation. He appears happy and contented. He is aware of the dispute [between PZ and TF] and has stated firmly that he wants to stay with PZ in the 'bush' as he could not give the address. He said they have been together for a long time and he wants to be with her. At the same time, he wants to see his son. He is aware of where [TF] lives as he refers to it - with the 'snobs'. His insight appears to be better on this occasion with proverbs interpretation. He did insist that he can drive but also aware that he did not have a licence and that means he cannot drive. I think he is happy with [PZ] and genuinely wants to be with her and would also like to keep in touch with his son.'
Further medical report by Dr Meng Chew dated 11 March 2010, which states in part, 'Based on my knowledge and previous assessment of TG, he needs full-time care and supervision of his daily care needs, in addition to financial management. He is not safe to be left alone for extended periods of time in the house. He is not able to access any community services on his own.'
Background information report for TG prepared by the Office of the Public Guardian on 31 July 2009 which states, in part, '[TG] was assessed by Wayne Reid, neuro-psychologist on 26th May 2009. The assessment revealed that [TG] has moderate to severe cognitive impairment (MMSE score of 18/30). Mr Reid reported that [TG] was 'found to have significant impairment in his memory, mental arithmetic skills, nominal language, non-verbal reasoning and visuo-spatial problem solving. By contrast, he shows well retained verbal conversational and social skills and seems independent in basic activities of daily living.' Mr Reid expressed the opinion that due to the major cognitive problems particularly with his memory and money handling skills, TG requires a guardian and financial manager to assist him with his financial affairs.
Map of the property leased by PZ and the adjoining area.
Map of the property owned by TF and the adjoining area.
Medical report by Associate Professor Gideon Caplan, Acting Director Geriatric Medicine, Prince of Wales Hospital, dated 23 March 2006 confirming that he had seen TG in the presence of PZ and TF and that TG had scored 23/30 in his mini-mental state examination.
The Tribunal heard evidence from the following people:
PZ
TG
TF
Rita Kelly
Lindy Nichols
Sharon Ferman
Philip Hood
Robyn Burgess
Patricia Davidson
ABM
Patricia Davidson
Ruth Kaye
ABN
Val Tohver
Evidence of Ruth Kaye
Ms Ruth Kaye, Principal Guardian at the NSW Public Guardian ('Public Guardian'), made the original decision of 13 October 2009 that TG reside on a permanent basis with his daughter, PZ. In her evidence to this Tribunal, Ms Kaye stated that she had given weight to the stated wishes of TG, to the importance of maintaining family relationships and encouraging TG to live a normal life in the community. She found no evidence that either accommodation proposal (namely that TG reside permanently with either PZ or TF) would place TG in fear of abuse. She spoke of the need for an access plan to ensure that TG retained contact with all family members. She conceded that moving TG to a new residence may cause significant disruption to him but stated that she would need a medical opinion in order to assess the impact such a move might have on him. She conceded that any impact occasioned by a change in environment would be lessened if there were familiar faces around him.
Evidence of Patricia Davidson
Ms Patricia Davidson is the Assistant Director of Operations at the Public Guardian. She was the internal reviewer in this matter and on 20 November 2009, she made the decision that TG should reside permanently with TF. In her evidence before this Tribunal, she explained that on the basis of advice of advice from ACAT officer, Margaret Phillips, and social worker and separate representative, Nihal Dennis, she found that little weight could be given to TG's views, given their inconsistency. In light of this, she instead looked primarily to TG's previous lifestyle and considered his strong relationship with both his son and daughter. She conceded that whilst a move may be disruptive to TG there was no medical evidence before her or before the Tribunal that this would be the case. She stated that whilst in her view, TG was being well-cared for by PZ, there was no evidence that, were TG to change his accommodation [to live with TF], he would receive any less care.
Evidence of PZ
PZ told the Tribunal that she believed it was in her father's best interests to reside with her. She agreed with the need for a fortnightly or monthly access plan, preferably from Friday to Sunday or Friday to Monday with a drop off/pick up point half way between her residence and that of TF. At the time of her evidence, TG had been living with PZ for 14 months. During that time, she gave evidence that TF had seen TG 'about seven times.'
PZ gave evidence in relation to TG's living arrangements. She confirmed that her family had moved from New Zealand to Australia in the 1960s and that up until his wife's death in 1991, TG had lived in the eastern suburbs for most of the time. Between the early 1980s and 1991, TG and his wife lived in three separate addresses in Vaucluse. PZ gave evidence that during this time, both she and TF would visit their parents regularly. After his wife's death in 1991, TG remained living in Vaucluse. In June 1992, after he had suffered a stroke, TG came to live with PZ in St Ives so that she could care for him. TF would visit TG at PZ's place in St Ives on the weekends and TG would drive to see TF and his family every Wednesday night. TG and PZ lived together in St Ives until 1995 when they both moved to Cherrybrook. TG's own rental accommodation had been given up by this stage. According to PZ, TG's health remained poor in 1995 and eventually, he was diagnosed with a blood condition, Polyscithemea Vera Rubra. At this stage, PZ remained the main carer for TG. In 1997 or 1998, PZ moved to Glenhaven and in 2000, she moved to Dural. After PZ moved from Cherrybrook, TF found rental accommodation for TG first in Randwick and then later in Randwick/Kensington. PZ denied that TG had moved from Cherrybrook so that he could be more independent but because TF found him an apartment in Randwick. Once TG moved to Randwick/Kensington, PZ gave evidence that she would visit him about five times a week. In 2007, PZ and TF found rental accommodation for TG in Vaucluse. From this point, PZ described her father as 'not coping' in terms of being able to live independently. PZ would 'be in attendance daily and [TG] would come when he could.'
At this point, PZ told the Tribunal that TG was seeing three doctors and that PZ and TF had agreed to take TG to a doctor to stop him from driving. PZ told the Tribunal that she has been receiving a carer's pension since 1993 and estimated that from the time of TG's stroke, he had lived with her on a permanent basis for approximately four years.
She agreed that, on occasion, both she and TF have attended medical appointments with TG. She gave evidence that she holds a Diploma of Naturopathy and that she commenced but had not completed a degree in nursing.
She described the deterioration of her father's health over the past few years, which has affected his ability to care for himself, including cooking, washing and changing his clothes. It was her concern for his safety that led to her view that her father was no longer able to live independently. At the end of 2008, PZ discussed with her father the possibility of his coming to live with her in Bilpin, taking him up there with her for a brief stay. TF didn't agree with TG going to live with PZ in Bilpin because he considered it to be too isolated. According to PZ, TF expressed the view that when TG was no longer able to manage independently, he would go to a nursing home. In March 2009, PZ took TG from his apartment in Vaucluse and back with her to Bilpin, where he has remained living. The house at Bilpin has three bedrooms although TG's bed is in the lounge room so that he has level access to the bathroom and toilet. There is a screen available for privacy should TG wish to use it. PZ is not concerned that her father may wander away from the house as 'he is not a wanderer' and if he takes himself for a walk on the property, always finds his way back. She confirmed that the property is fenced and that the gate to the property is always kept locked. The property is 45 minutes away from Hawkesbury Hospital and there are health services in the neighbouring areas of Kurrajong, Richmond and Windsor.
She gave evidence of her daily routine since TG has been living with her in Bilpin. PZ brings TG breakfast in bed every morning and has to prompt him to change his clothes and to dress himself. To encourage him to dress himself, she will give TG a choice of clothes to wear. After breakfast, TG will go out onto the verandah to water the plants or to look at the animals. They might then go out for lunch or take a walk. PZ told the Tribunal that TG likes to collect firewood and that will take his attention for some time. He will then have a daytime nap and feed the horses or take a look at the chooks. Over an early dinner, PZ likes to give TG some problems to keep him mentally alert. This might include quizzing him on family birth dates or playing draughts.
She described the symptoms and treatment required for TG's blood condition, Polyscithemea Vera Rubra, and described TG's diet. She spoke of the effects of TG's dementia: sometimes he can have a normal conversation and yet other times, he can only remember things for twenty seconds. One day he will know where the bathroom is but the next day, he will have no idea and will wash up his cup there, thinking he is in the kitchen. Socially, PZ told the Tribunal that she might have friends over once a month. TG accompanies her shopping and often they will talk to some of the locals over afternoon tea in a cafe.
PZ has enrolled herself in a program for carers to learn strategies for dealing with the process of dementia, which she will attend, with TG, once a week. TG attends a day care program twice a week on Wednesdays and Fridays from 10am to 2pm. PZ likes the program because the she finds the carers to be 'very genuine. They take an interest in country people. They are very caring and they treat him with respect and kindness.'
When asked what effect a change of living arrangements would have on TG, PZ gave the following reply:
An enormous effect. It would be detrimental to his state of mind. I am his carer and have been for years. I spend a lot of time with him. He likes to associate with one person and gets confused when other people come into his life. He isn't able to put them in a place. When functioning fully, he was never social: he didn't like BBQs or parties, he doesn't smoke, doesn't drink. He likes interaction to a point then he gets tired and wants to go.
If TG were moved to reside permanently with TF, PZ would lose her carer's pension and so would need to work. This would impact on any access arrangements for her to see TG. To make it workable, she would like TG to stay with her for two or three nights, perhaps twice a month, and for the drop off and pick up point to be at Blacktown McDonald's or another halfway point.
Despite relying on a carer's pension, PZ gave evidence that she was able to meet expenses, provided she sticks to a budget. She told the Tribunal that the weekly rent for the Bilpin property is $370 and that money from both TG's pension and PZ's carer's allowance is used to pay the rent. She confirmed that the NSW Trustee sends the money, as required.
She gave evidence that TG is entitled to an income from a rental property he inherited but that the relevant money is being controlled by TF.
Evidence of Lindy Nichols
Lindy Nichols, cousin of TF and PZ, who now lives in New Zealand gave evidence of PZ's long-term care of TG, as witnessed during Ms Nichols' time living in and visiting Australia. She gave evidence that during her visits to Australia in 2005 and 2008, she frequently saw TG in the company of PZ and that, during the 2008 visit when she stayed with PZ for two weeks, TG was with them for 'at least eight days.' During this trip, she also saw TG in the company of TF but expressed the view that TG was often busy with work and had less time for TG than PZ, who was not working. For the period of 25 years when Ms Nicholls lived in Australia, she viewed TF, PZ and TG to be a close family but told the Tribunal that this had changed in the last few years.
Evidence of ABM
ABM provided a lengthy affidavit describing her relationship with TG and setting out why it would be in his best interest to reside permanently with her father, TF. She described a longstanding and close relationship with TG who was a frequent visitor to the family home during her childhood. She described TG as having spent most of his life in the eastern suburbs:
Except for the short time period when [TG] lived with [PZ] following his stroke, [TG] has always lived close by and although I moved from the family home 7 years ago I remained close by and continued to see [TG] either at the family home or at [TG's] home..In my adult life, we have spent much time together, family dinners at home is a weekly event and we all attend by choice. One of us will pick [TG] up and drop him home.
In her affidavit, ABM expressed her concerns at PZ's treatment of TG:
I have always been grossly opposed to the way [PZ] screamed, berated and belittled [TG] when she spoke to him...but I soon learned that he accepted such atrocious treatment as she was his daughter and he loved her no matter what...When I learned that [PZ] was stealing from [TG]'s account a few years ago I fought with Dad to have him action the matter.
ABM described her family's ability to care for TG:
We all have stable, well paying jobs and readily spend our money on [TG], we always have done...[TG] has never ever asserted a desire to leave the eastern suburbs or live with [PZ]...If [TG] lives alone, which he has expressed is his wish (however we are unsure this is best for him) or if [TG] lives with Dad and [ABN], either way he will be in a loving and caring environment with all his needs attended to. Dad's house is perfectly equipped for [TG] to live in and in a location where [TG] has enjoyed living most of his life. Most importantly, he will live and enjoy the company of his family who have nothing but his best interest at heart...No-one can act in [TG]'s best interest or love and care for him to the capacity we have, can and do.
ABM also spoke of PZ's attempts to stop TF and his family from having access to TG, since he has been living in Bilpin with PZ.
Attached to ABM's affidavit is video footage of TG at family meals with TG, ABM and their family. In the course of the video, TG expresses his desire to live with TG rather than out in the bush with PZ.
In her evidence to the Tribunal, ABM stated that should TF reside permanently with TG, she would visit him regularly and assist with his care, as required. ABM agreed that TG had been living with PZ for the past fifteen months and had the following criticism of PZ's care of him:
You feed him and clothe him and nothing else. You want him for his money.
ABM gave further evidence under cross-examination in relation to the closure of an NAB account in the name of TG.
Evidence of ABN
ABN, the wife of TF, provided a statement in support of TG residing with TF and her. From 2001, when ABN moved in with TF, TG would join the family for dinner twice weekly and would assist in babysitting ABN's sons. ABN stated that since 2006, she has noticed a decline in TG.
In her statement, ABN listed her concerns for TG:
He needs his routine kept simple and familiar
Family contact
Medical assistance at any time
Outings with different family members
Television, newspapers, surroundings that are in contact with people
And his general well being, being looked after by all of us, not just [PZ] and Mr Segal
Making sure all his needs, medical, financial, health etc are met properly
Being within a distance that doesn't take hours to get there
Regular and proper food not just vegetarian meals all the time
Mr Segal's request for financial control is a conflict of interest
In her evidence to the Tribunal, ABN stated that she works as the manager of rental cars and is the assistant manager at TF's mechanical workshop. She stated that she would be able to maintain her jobs should TG reside permanently with TF and her as TF would relinquish his business interests to become TG's carer. In terms of the workload, ABN would prepare the evening meal before leaving for work and TG would look after TG and make him breakfast and lunch. She is concerned that because TG is isolated in Bilpin, there would be a long wait for an ambulance should TG require one.
ABN told the Tribunal that whilst she hasn't informed herself about dementia, her husband has.
In reply to the question as to whether the family had considered putting TG in a nursing home, ABN replied:
No if you love someone you don't until it has to be, that is, when he doesn't recognise us anymore.
She was aware of dementia day care centres within the local area but has left the organisation of this to TF. She undertook to cater to TG's dietary needs and was happy to take advice from a dietician and nutritionist. She was not concerned that TG might wander as he only ever walks to the end of the street, but is aware of the need for TG to be monitored constantly. She told the Tribunal that TG was able to make himself a cup of tea, unpack the dishwasher and dress himself, choosing from clothes in his wardrobe at ABN and TF's house. She told the Tribunal that TF would look after all TG's medical needs. To keep him occupied, ABN suggested the following daily activities for TG: helping in the garden; hanging out the clothes; shopping; going for coffee; vacuuming; going to Watson's Bay; taking drives to the Central Coast or to Wollongong. She told the Tribunal that TF would take charge of TG and that she would assist.
She told the Tribunal that her house with TF is on one level and that TG would have his own bedroom just across the hall from the toilet.
She told the Tribunal that should TG reside with TF and her, PZ would be able to see TG as often as TG wished. She suggested fortnightly or monthly access as an option.
Evidence of Val Tohver
Mr Val Tohver, Senior Client Service Officer - Intake Team for the NSW Trustee and Guardian, gave evidence to the Tribunal that he had been the financial manager for TG's estate from the implementation of the Financial Management Order until 28 June 2010. He confirmed that TG had been the executor of the estate of Gerald Arendt and that TF has since been appointed financial manager for the estate, which has yet to be finalised (although probate has been granted). This matter is no longer with Mr Tohver and is now being handled by the legal department of the NSW Trustee and Guardian.
In relation to the Ryde property held by TG, Mr Tohver gave evidence that it appeared that ABM had prepared leasing arrangements for the property, but that the NSW Trustee and Guardian had not received any rent payments for the property. He told the Tribunal that he had sought further information about the property situation but had not received a response from TF. He couldn't confirm that a follow up letter had been sent to TG in relation to the matter. He confirmed that if monies were to come in from the Ryde property, the NSW Trustee and Guardian would allocate some of them for TG's day to day living expenses.
Ms Phang then confirmed that a caveat had been put on the Ryde property, in accordance with the practice of the NSW Trustee and Guardian to put a caveat on the property of a protected person.
Evidence of TG
At the request of the separate representative for TG, Ms Ramjan, and in the absence of all other parties, the Tribunal took evidence from TG.
TG told the Tribunal that he was born in New Zealand on 5 May 1923 and that he is 87 years old. He confirmed that he and his wife had three children: two boys and a girl.
He described living in the Blue Mountains with his daughter, not far out of town, and spoke of being close to sheep and paddocks, saying that he liked to muck around, feeding the farm animals and looking after them. He thought the property was about 5 acres.
He described his daughter as a 'bit of a boss dog' but said that they get on. He admitted to the odd arguments but said, 'you do that.' He described his daughter as 'understanding- she knows I'm a bit silly.'
When asked about his son, Michael, he said, 'he's all right; he has his own way. He flares up a bit.' At this point he became confused saying that he didn't think his son had any children, but that he knew his daughter did.
He described being partial to where he is living, saying that he liked to go digging around the property and liked being with the farm animals and tending to the garden and the vegetables they grow. He described growing carrots, apples and peas on the property.
He told the Tribunal that he and his daughter mixed with other people 'a little bit' and that he and his daughter would drive into town, which he described as being about 5 or 7 miles from the property. He told the Tribunal that 'I can make my own amusement.'
He told the Tribunal that PZ cares from him well:
She cooks meals and does the washing, or sometimes I do it. Whether I do it or she does it, there are no problems.
He spoke of going to TF's place, which he described as quite all right. He described being close to TF, saying that TF had a mind of his own but stating that he was happy to be with him and that TF and his wife took good care of him.
He described ABM as a 'nice little girl, bit young.'
When asked about ABN, he said:
I haven't seen her lately. We get on all right, no real problems. She might cheek me and I'll cheek her back.
In describing his accommodation preferences, TG told the Tribunal:
I would like to see them both and mix with them. I'd like to see the both of them at different times and be happy. To be honest, I'm not sure that I would live with either of them, but next door. I wouldn't really like to leave where I am.
He told the Tribunal that he likes to be with people he knows: his family, his brother, his sister but that he doesn't take to strangers straightaway.
When asked how he would change his life, he said he'd win a million dollars to buy a house, saying that 'I had a house and got sick and lost everything. Life is what you make of it.
He told the Tribunal that he had no problems with his daughter:
She is a boss dog but I overlook it or I make some excuse. She realises my position. It's no problem. [TF]'s not like that - nothing like that. They make me laugh. I don't want to be restricted. If I want to go out, I want to say I'll go. It's never come to that. They'll say I'll run you down. We don't fight in our family.
Evidence of TF
TF gave evidence confirming that, if an order were made that TG reside with him on a permanent basis, he would look after TG on a full-time basis. He would no longer work at the family-owned workshop he runs. Instead, the workshop would be run by his wife, ABN, and by the manager of the workshop, Sean Hodges. TF told the Tribunal that he sees himself as a fit and proper person to care for his father and that he is able to attend to his basic needs. He expressed the view that, by contrast, he felt that PZ was an unfit person to care for their father.
He confirmed that he owns a four bedroom house in Vaucluse, on one level, and that TG has his own bedroom there which is directly opposite the toilet. He told the Tribunal that his wife, ABN, gets on well with TG and that she provides him with meals, takes him on outings and brings him cups of tea.
TF confirmed that he had educated himself about dementia and was able to describe the characteristics of dementia that TG has, namely forgetfulness, some incoherence, repetition of thoughts, confusion if he is not within a routine, inability to drive and the need for supervision when walking alone outside an enclosed property.
He described his father's needs to be food, shelter, comfort, home, showering, communication with family, a loving environment and social interaction.
He described how he would structure his days should the decision be made for TG to reside with him on a permanent basis, telling the Tribunal that he would wake TG at 7.30am and prepare breakfast for him. He said that TG can dress himself although TF does select some of his clothes during his weekend visits. Prior to PZ taking TG to live with her in Bilpin, TF had TG booked in for an assessment at the Holsworthy day care centre. If TG were to reside permanently with TF, he would re-book him in for assessment at Holsworthy to arrange for TG's attendance there one day a week.
TF told the Tribunal that TG loves the promenade at Rose Bay and that the two of them would go out on a daily basis to walk or shop. He agrees with the evidence of PZ that TG is not a wanderer.
TF told the Tribunal that his house is close to St Vincent's Hospital and to the hospital at Randwick should TG require such medical attention. His doctor at Bondi Junction retains TG's medical records. Should the decision be made that TG resides with TF on a full-time basis, TF will have TG medical examined to obtain an updated report on his health and seek advice about TG's diet and nutrition.
Under cross examination, TF refused to answer questions in relation to his father's Ryde property on the basis that it was not relevant to the accommodation issue before the Tribunal. He told the Tribunal that he had a history of co-operation with the NSW Trustee and Guardian and that it was because his account records in relation to the estate of Gerald Arendt were passed that probate had been granted. Under cross-examination, he denied withholding TG's assets from him and confirmed that now he has received a request for information from the NSW Trustee and Guardian (which he had not previously been given), TG's assets will be handed over to the NSW Trustee and Guardian.
Under cross-examination, TG stated that he was concerned that his father was socially isolated in Bilpin and that such social isolation can lead to depression. He stated that he didn't think his father should be left in the bush under the control of one person without a social network. He also expressed concern that Bilpin is cold in winter and that PZ's house has inadequate heating for TG. He expressed the view that he didn't feel that living with PZ on a full-time basis was conducive to TG's health, particularly given that he is away from his immediate family and is socially isolated. He feels that it would be better for TG to be living in central Sydney. He told the Tribunal that he was against his father's abuse and control by PZ and stated that she had stripped him financially and denied him access to his family.
Under cross-examination, TF confirmed that an Apprehended Domestic Violence Order had been issued against him following a complaint by PZ. Associated assault charges against him were dismissed. He confirmed that both he and TF had a conviction for having goods in custody. He confirmed that he takes medication for gout, cholesterol and blood pressure. He denied having any medical condition that would affect his capacity to care for his father.
When questioned about access to TG, he expressed the view that weekly access would be disruptive to TG given his dementia and that access should be over the weekend on a monthly basis.
He gave evidence of the closure of an NAB account in TG's name.
Submissions
Submissions were received from PZ, from TF, from the Public Guardian and from Ms Stolier, on behalf of the separate representative for TG, Ms Ramjan.
Submissions of PZ
In her submissions, PZ stated that she is the optimal carer for her father on the basis of her availability (she is not in paid employment), her previous experience in caring for the elderly and her demonstrated care of her father in taking him to his medical appointments, shopping and preparing his food, washing his clothes, attending to his personal needs, paying his expenses as appropriate, taking him on outings and giving him access to a variety of activities within the community. She submitted that while living apart from her father, she had continuously cared for him while he was living in his Randwick, Kensington and Vaucluse units over the previous 17 years and that she has continuously cared for her father over the last 18 months, using her carer allowance. She submitted that TF has 'refused to have his father's assets made available for his father's care without adequate reasoning.' She also submitted that TF is not a fit and proper person to care for TG in light of his 'explosive personality and his explosive personality his gout and indulgence of alcohol.and the stress of a monthly mortgage commitment he is obligated to repay' and that under TF's care, TG would be at risk of elder abuse and being placed into a nursing care facility.
PZ submitted that, despite his dementia, TG has demonstrated cognitive insight and has expressed a desire to Ms Ramjan and to the Tribunal that he wishes to continue to reside with PZ and that the Tribunal should give weight to TG's wishes in this regard.
PZ submitted that despite encouraging access to TG for TF and his family over a period of 18 months, TG has refused to exercise this option on 'about eight occasions.'
She submitted that her house in Bilpin has appropriate accommodation for TG and that it is in 'her father's best interests to remain in [his] current residence and the surroundings he is familiar with as opposed to relocating him to unfamiliar and new surroundings.' She submitted that her father has lived with her 'for many years, permanently in St. Ives for 4 years and when he stayed on extended visits to [her] various homes and feels comfortable and safe under [her] care.' She further submitted that it would be detrimental to her father's health to be uprooted and moved to TF's home.
In conclusion, PZ submitted that she has fulfilled all the principles of s4 of the Guardianship Act and that an order should be granted that TG reside permanently with her on the basis that 'she is a fit and proper person to continue her father's ongoing care, has had his care for the last 18 months [and] is able to afford the care he requires in terms of her education, training, experience and personality.'
Submissions of the Public Guardian
The Public Guardian submitted that having regard to the principles of section 4 of the Guardianship Act and to the information available to the Public Guardian at the time of decision, the decision that TG reside with TF on a permanent basis at TF's home was the correct and preferable decision having regard to the principle as contained in section 4 of the Guardianship Act that the welfare and interests of the relevant person, here TG, should be given paramount consideration.
In light of the findings made in the internal review that the views expressed by TG were inconsistent in relation to his accommodation wishes and given the finding that TG was open to influence and manipulation by his children, the Public Guardian submitted that less weight be placed on the expressed views of TG and that greater weight be placed on any '..previously expressed and demonstrated views and lifestyle.' According to the Public Guardian, prior to moving to Bilpin, TG had lived for the major part of his life in the eastern suburbs of Sydney, demonstrating that the eastern suburbs was his preferred location.
According to the Public Guardian
It is submitted that based on the past demonstrated location of where TG lived i.e. for the major part in the Eastern suburbs in a city environment as opposed to a rural setting that living permanently with [TF] would be in line with TG's 'previously expressed and demonstrated views and lifestyle.'
The Public Guardian submitted that in order to give maximum effect to the principle set out in section 4(e) of the Guardianship Act, namely the importance of preserving family relationships and the cultural and linguistic environments of such persons, TG should reside permanently with TF thereby ensuring contact not only with TF himself but also with his grandchildren.
According to the Public Guardian
The animosity between [PZ] on the one hand and [TG] on the other hand, plus the geographical distance of the grandchildren from Bilpin mean that the opportunity for more frequent planned visits and drop in/spontaneous visit by the grandchildren is much more limited if [TG] resides with [PZ].
In relation to PZ's contention that TF was not a fit person to provide care for TG and that TG would be subject to neglect, abuse and exploitation if he were to reside with TG, the Public Guardian submitted that such a contention was not supported by the evidence.
The Public Guardian also submitted that TF's residence was a more suitable one that PZ's residence given that the house is on one level and TG has his own bedroom opposite the bathroom.
In relation to the financial matters raised at hearing, the Public Guardian submitted that
The issue of [TG]'s interest in the deceased estate of the late Gerald Arendt and allegations of financial abuse...[are] not relevant issue[s] for consideration in determining this review. The NSW Trustee is the financial manager of the estate of TG. The NSW Trustee as financial manager is investigating and following up the issue of the interest of TG in the estate of the late Gerhardt Arendt. When this issue is sorted out and any funds become available for TG from the estate of the late Gerhardt Arendt, those funds will be collected by the NSW Trustee and dispersed by the NSW Trustee for the benefit of TG.
The Public Guardian submitted that relocating to TF's house would not pose a significant problem for TG as TF's house is not unfamiliar and is not a new surrounding for TG. Prior to moving to Bilpin, TG had been to TF's home and since the move to Bilpin, he has been on weekend stays at TF's house.
In regard to access arrangements, the Public Guardian submitted that the decision on accommodation by the Tribunal must be linked to access to both of TG's children and that any decision made be on the condition that there be access to the other child once a month with the drop off point being at Blacktown McDonald's at 3pm on Friday afternoon and the pick-up point being at Blacktown McDonald's at 3pm on Sunday.
Submissions by Ms Stolier for the separate representative for TG
In her submissions, Ms Stolier identified the following issues in dispute:
Where TG should live, the competing parties being TF and PZ;
What time or contact TG should have with the family who does not have his residential care; and
As an ancillary issue, the management of TG's financial matters.
Ms Stolier noted that in discounting the views of TG in the internal review of this dated 26 October 2009, the internal reviewer, Ms Patricia Davidson did not interview TG to ascertain his views whereas the original decision maker, Ms Ruth Kaye had done so. On the five occasions TG had been questioned on this matter by Ms Kaye, he had, on one occasion only, reported that he wanted to live with TF.
Ms Stolier submitted that TG's view has remained consistently that he wishes to reside with PZ.
Ms Stolier also submitted that
The internal reviewer failed to consider the evidence or did not have the evidence available to consider that [TG] resided in a number of suburbs a distance away from the eastern suburbs and as well spent a period of time in Melbourne. Most of these periods of time [were] when he was away from [TG] and his family were spent with [PZ].
Ms Stolier submitted that over his life, TG chose to live with PZ when he was in times of physical need or financial need. In support of this contention, she submitted that, according to the evidence, TG and his wife lived with PZ in St Ives from 1988 to 1989 following the sale of their house in Vaucluse (despite paying rent on a property in Randwick from July 1988 and then on a property in Vaucluse/Rose Bay from August 1989). She also referred to PZ's evidence that following his stroke, TG had lived with her in St Ives and in Cherrybrook from 1995 to 1996. This evidence is somewhat disputed by the fact that TG moved into an apartment in Randwick in August 1995 although PZ gave evidence (supported by Lindy Nichols) that she would visit him 5-6 times a week and on weekends. It is undisputed that since 29 March 2009, TG has lived with PZ in Bilpin on a permanent basis.
Ms Stolier further submitted that:
Notwithstanding where [TG] physically resided, [PZ] had been the person nominated by her father to care for him (and his wife prior to her death) or, in the alternative, the person who did in fact care for him in the majority of time for the period from the 1990s up to the present time.
According to Ms Stolier, it is shown in PZ's evidence, and corroborated by Lindy Nicols, that during her father's time in Randwick, PZ would visit him 5-6 times per week and stayed on some weekends. Ms Nicols also gave evidence that in 2005 during her 3 month stay with PZ in Kenthurst, TG was there for 'most of the time'.
In relation to TG's current residential situation, Ms Stolier submitted that 'putting aside the reasons for or the method by which TG can to be at Bilpin, it is a fact that since 29th March 2009 to date, TG has resided with PZ at Bilpin NSW. This is for a period of 18 months.'
Ms Stolier submitted that the current lifestyle choice of TG is to reside with PZ who presently lives at Bilpin NSW and to have time with TF and his family.
Ms Stolier further submitted that there is no evidence to support the contention that TG's health needs and physical needs are not adequately catered for but that, according to the medical evidence and that of local services groups, the standard of care he receives from PZ is of a high standard. According to Ms Stolier, no evidence has been put forward by TF that TG is isolated at Bilpin, has never wanted to live in a rural setting or is at risk of wandering into the bush and hence has fears for his safety.
Ms Stolier also submitted that TF has had no prior experience of caring for TG.
It is Ms Stolier's submission that TG ought to have significant and meaningful time with TF and his family, including ABM and that the timetable of monthly access for TF as put forward during the Tribunal hearing should be a template for further contact with TG.
In relation to the financial issues raised in the course of the Tribunal hearing, Ms Stolier spoke of her concern as to whether TF had made full and frank disclosures to the NSW Trustee and Guardian regarding TG's financial matters but stated that
Notwithstanding the worrying nature of the evidence, it is submitted that the Tribunal may be concerned about this aspect of TG's finances only in so far as it was raised by TG that his father had less of a lifestyle with PZ due to her financial limitations. It is submitted by the s71(4) representative that if there are funds available to TG to be utilised for his lifestyle enhancement they ought to be made available to his carer.
Submissions of TF
In his submissions, TF stated that 'since arriving in Australia in 1961, Dad has lived his entire life in the Eastern Suburbs (except a short period in Melbourne) before being abducted by the appellant in March 2009 and relocated to Bilpin.'
He submitted that there is no reliable evidence before the Tribunal to support PZ's statement that 'in the 1990s my father lived with me for approximately eight (8) years in various accommodations rented by me.' TF submitted that his father lived in a rented apartment in Randwick from 1995 to 1996 and that he relocated from Randwick to a rented apartment in Kensington in 1996 until 2007. TF also submitted that, at a different Tribunal hearing, his nephew provided a statement that he had been living with TG at TG's house in Vaucluse from February 1991 to May 1994.
TF submitted that for the last 30 years, 'Dad has only ever lived a 10 minute drive from my home in Vaucluse' and that his preference 'has always been to reside in the eastern suburbs in close proximity to me and my family.'
TF submitted that the evidence provided in affidavit form and given at hearing, including by TG himself, shows that TG enjoys a close relationship with TF and his family and wishes to maintain this relationship.
In his submissions, TF raised concerns about PZ having encouraged her TG to give her an enduring power of attorney at a time when TG was incapable, due to dementia, of providing the requisite instructions.
In relation to TF's West Ryde property, TF submitted that:
The West Ryde property has been managed by me as per my father's wishes. I was never required to furnish [PZ] with any information nor funds from this property. In fact I fiercely protected the monies in order to ensure [PZ] would not steal it from Dad.
TF re-iterated his evidence he had never received the letter from the NSW Trustee and Guardian requesting information in relation to TG's West Ryde property.
Again I reiterate I never received this letter, in fact I believed that when the NSW Trustee was ready they would issue letters directly to the tenants and take the property over from there as they had done in the case of Gerald Arendt.
In relation to further queries as to TG's assets, TF submitted that he has transferred monies from TG's account to ABM's account in order to protect TG's remaining assets.
TF submitted that TG's current lifestyle in Bilpin (or Mountain Lagoon) does not pay any respect to his previous lifestyle decisions given that TG had never chosen to live in a rural or country setting previously and now finds himself in an isolated area devoid of 'any of the stimulating factors he once enjoyed as an integral part of his lifestyle in the eastern suburbs.' TF is concerned that his isolation and dependence on PZ alone will be detrimental to his father's health and that because PZ, as a renter, does not have security of tenure, it would not be in TG's best interests to be relocated from residence to residence should he reside on a permanent basis with PZ.
In relation to TG's current attendance at a day care program, TF submitted
[PZ] has only enrolled Dad in a community centre and dementia program since the commencement of this hearing in an attempt to impress upon the Guardianship Tribunal/ADT that she is interested in assisting Dad's social needs and acting in his best interests.
TF expressed his concern at impediments by PZ to allow access to TG
The appellant has done all she possibly can to stifle Dad's contact with us. This includes an AVO on me, attempts to have my children charged with trespassing, many excuses made to the Public Guardian why Dad cannot visit with us and claiming that Dad does not wish to see or stay with us.
TF expressed his concern at PZ's failure to produce a series of documents to the Tribunal including evidence of her partially completed nurse's degree, her experience in aged care and a copy of the will of Gerald Arendt.
TF submitted that TG is the subject of undue influence by PZ and that he is not able and not now capable of expressing his own desires and views without fear of reprimand by PZ. This TF submits, is supported by the evidence of Ruth Kaye.
TF submitted that his father's expressed views as to where he wishes to live cannot be relied upon given their inconsistency. He disagrees with the views of the separate representative, Ms Ramjan, stating that :
The claim by Ms Ramjan that Dad's views are now consistent is first and foremost marred by the blinkered approach taken by Ms Ramjan in interviewing Dad only within his current environment i.e. the appellant's home in which he has resided since March 2009 and the community centre where Dad attends in Richmond and is dropped off and collected by [PZ]. This does not erase nor change the fact that... to the Public Guardian whom interviewed Dad in my residence, outside the stranglehold of Dad's current environment and the appellant, [Dad] has provided inconsistent views.
TF submitted that he is willing and absolutely able to be the carer for TG and that his wife, ABN, will attend to the family's business interests in order to enable him to do this. TF submitted that he is fully conversant with TG's needs and health issues and willing to assist and care for him as necessary in the capacity required. TG set out details of his proposed daily routine with TG, with activities including gardening, shopping, taking drives, outings, visiting family and friends. TG confirmed that he would enrol his father into the Holsworthy Community Centre to enable him to attend a weekly program there. TF also intends to have TG assessed by Alzheimer's Australia and to have them both enrolled in a dementia program.
In relation to access proposals, TF submits
I understand that access to the appellant is an important part of Dad's life and I am happy to cooperate with the Public Guardian's direction as I have done to date. My request to meet at my work where security cameras exist was to safeguard any further false allegations made by the appellant. Considering the circumstances (the AVO against me) this was a fair request however the meeting place of Blacktown McDonald's makes provision for this safeguard. As such I see no reason why this meeting place cannot be used moving forward at intervals decided by the Public Guardian in the best interest of Dad.
FINDINGS AND REASONS
For the reasons that follow, I am setting aside the decision of the Public Guardian dated 20 November 2009.
In the end, this matter comes down to two issues:
Should TG reside with his daughter PZ on a full-time basis or should he reside with his son TF on a full time basis?
What access arrangements should be made in relation to TG?
In exercising any function under the Guardianship Act, the Tribunal must take into account the guardianship principles set out in section 4 of the Guardianship Act.
I am satisfied that TG is an 87 year old man who suffers from dementia and the blood condition, Polyscithemea Vera Rubra. I am satisfied that since 24 April 2009 (and as reviewed and renewed on 31 July 2009), there has been a guardianship order against him appointing the Public Guardian as his guardian, and that since 31 July 2009, TG has been the subject of a Financial Management Order committing the management of his estate to the NSW Trustee and Guardian.
Financial matters
During this hearing, a series of allegations were made by TF and by PZ in relation to the management of TG's financial affairs. TF alleges that PZ has been trying to misappropriate her father's assets, having encouraged him to give her an enduring power of attorney at a time when he was incapable of giving the requisite instructions in relation to the instrument. PZ alleges that TF has been withholding his father's rental income from the West Ryde property he inherited from Gerald Arendt.
Mr Tohver of the NSW Trustee and Guardian gave evidence that he had previously been TG's financial manager and confirmed that TG's estate remains under financial management under the control of the NSW Trustee and Guardian. He confirmed that investigations are underway to ascertain the whereabouts of TG's remaining assets and to look into the situation in relation to the West Ryde property.
In light of PZ's reliance on a carer's income and the fact that she is not otherwise in paid employment, TF submitted that PZ was unable to offer TG the comfortable lifestyle TF and his family could offer to him, given that a regular income is derived from the family business. To improve TG's lifestyle, PZ submitted that money should be made available for TG's care from the NSW Trustee and Guardian. In her evidence, she described being able to provide her father with a comfortable and happy lifestyle provided she kept to a budget. Ms Ramjan, separate representative for TG, submitted that the evidence showed that TG was being well cared for by PZ.
I agree that the evidence shows that TG is being well cared for by PZ and that fact that she is less financial secure than TF has not been detrimental to TG's care and well-being. The medical reports by Dr Walker and Dr Chew confirm that TG is well-fed and on each of the hearing days, he appeared physically fit and well-dressed. He attends a day program twice a week and evidence was given by PZ and by TG himself that he enjoys simple inexpensive pleasures such as feeding the animals on the property, gardening and going out to afternoon or morning teas. In light of this, I am of the view that financially, PZ is in a position to care for TG and that as issues are resolved by the NSW Trustee and Guardian, it is expected that further monies will be available for TG.
In terms of the allegations by both TF and PZ of misappropriation of funds belonging to TG, I find that the Tribunal does not have sufficient evidence to make any findings in relation to these issues. These matters are being investigated by the NSW Trustee and Guardian who, as financial manager for TG, is best placed to deal with them. I find that the allegations raised in relation to misappropriation of funds belonging to TG are not appropriately considered by the Tribunal in a review that is limited to the Public Guardian's function of accommodation and access.
Miscellaneous issues
PZ did not produce documents requested by TG. These documents are as follows: evidence of her partially completed degree of nursing, evidence of her experience in aged care and a copy of the will of Gerald Arendt. Whilst unimpressed with PZ's failure to produce the requested documents, the absence of the documents has not affected the Tribunal's decision in this matter.
Accommodation function
TG has been living in Bilpin with PZ since March 2009. TF claims that PZ kidnapped him and gave him no choice but to live there.
On 13 October 2009, the Public Guardian made a decision that TG reside with PZ on a permanent basis. In reaching this decision, weight was given to TG's views in accordance with section 4(d) of the Guardianship Act. This decision was overturned on internal review on the basis that weight should not be accorded to TG's wishes because of their inconsistency and because TG was prone to manipulation and coercion by his children. Instead, a decision was made on the basis of TG's previous lifestyle choices, namely that he had chosen to live most of his life in the eastern suburbs of Sydney rather than to live in a rural location such as Bilpin and so should be accommodated with TF within the eastern suburbs.
Before the Tribunal, PZ and the separate representative for TG, Ms Ramjan, submitted that weight should be given to TG's views and to PZ's previous care of her father whilst TG and the Public Guardian submitted that in view of their inconsistency, weight should not be given to TG's view. They submitted that weight should instead be given to TG's previous lifestyle choices.
Weight to be given to TG's views
According to the original decision maker, TG said that he would like to live with PZ and visit TF on a regular basis.
According to the internal reviewer, 'there is no doubt that [TG] wants to please both his children and does not want to choose either one over the other.'
According to the independent representative, TG view had remained consistently that he wishes to reside with PZ.
In private evidence before me, TG said that he would like to see both PZ and TF at different times and be happy.
Weighing up the evidence before me, and in the absence of any medical evidence on this issue, I find that TG is consistent in his desire to remain in close contact with both his son and daughter. Consistently with the evidence given at hearing and the manner in which this evidence was provided, TG described his daughter as being a bit of a 'boss dog but all right' and his son as being volatile but fun.
From this evidence, I am satisfied that TG is aware of his children's differing traits but remains close to them. On the evidence before me, I am not satisfied that TG is at any risk of abuse from either TG and PZ and could safely and happily be accommodated with either of them. I am not confident from the evidence that I can attach weight to TG's views in order to decide the question of where TG would be better accommodated.
Weight to be given to TG's previous lifestyle choices
From the evidence I am satisfied that TG moved from New Zealand to Australia in the 1960s and that he lived in the eastern suburbs of Sydney until his wife's death in 1991, staying with PZ in St Ives from 1988 to 1989, after the sale of the family home in Vaucluse.
PZ's original evidence that her father lived with her from 1988 to 1989 and then from 1995 to 1996 was disputed. Considering the evidence, I find that TG and his wife lived with PZ following the sale of their house in Military Rd, Vaucluse and that they later rented an apartment in Vaucluse/Rose Bay.
I am satisfied from the evidence that following a stroke, TG lived with PZ in St Ives and Cherrybrook until he moved into his apartment in Randwick. I am satisfied by PZ's evidence that she visited him close to daily from when he moved into the apartment in 1995 to 1996.
I am satisfied from PZ's evidence as corroborated by Lindy Nichols that during her three month stay with PZ in 2005, TG was there 'most of the time.'
I am also satisfied that TG has been living with PZ in Bilpin since March 2009. I am not satisfied, however, that TG was given a choice in the matter. On the evidence, I am satisfied that, without informing TF, PZ took TG from his apartment in Vaucluse and took him to live with her in Bilpin. I am not impressed with the manner in which TG was taken to live with PZ in Bilpin and can understand TF's anger and distress at this incident. By taking TG to live with her in Bilpin, PZ effectively curtailed and, on the evidence, for some time impeded the access of TF and his family to TG. I accept that TG still feels very aggrieved by this.
Matters involving guardianship are protective in jurisdiction and the welfare and best interests of the person under guardianship should be given paramount consideration. (s4(a) Guardianship Act ) When a person's view cannot be the prime factor on which a decision can be based, I accept the Public Guardian's submission that a person's previously expressed and demonstrated views and lifestyle should be considered.
On the evidence, I am satisfied that since arriving in Australia in 1961, TG has spent most of his life in Australia living in the eastern suburbs of Sydney. The exception to this is 1988 to 1989 when he lived with PZ following the sale of his and his wife's house in Vaucluse when recovering from his stroke between 1995 and 1996 and since March 2009.
The significance of this evidence is that, when in need, TG had tended to rely on PZ for his care. This is confirmed by the fact that since 1993, PZ has received a carer's pension, on the basis of her care for her father. The evidence is that she has always visited TG regularly and taken him for his medical appointments.
Notwithstanding the unsatisfactory way in which TG came to be living with PZ in Bilpin, I am satisfied that TG is being well-cared for by PZ. This is confirmed by medical reports before me. Although TF has disputed the impartiality of the reports, no evidence is before me to contradict the fact that TG is being well-cared for by PZ.
I am satisfied that TG attends a day care program at Richmond twice a week and accept the representations of the separate representative, Ms Ramjan, that he is doing well there.
I am satisfied that TG has an established routine with PZ in Bilpin. This was explained to me by PZ in evidence and confirmed by TG himself in separate and private evidence before me, where he stated that he enjoys gardening, feeding the animals and taking outings at Bilpin.
TF raised the concern that Bilpin is isolated and that this would be detrimental to TG. From the evidence provided at hearing, I am satisfied that a hospital is within 45 minutes drive of the property rented by PZ and that there are local medical facilities at a lesser distance. I am also satisfied that despite living on a property, TG has access to bi-weekly activities at Richmond day centre and within the context of the simple life led by TG and PZ, he has outing into town and social visits. I am satisfied that the quietness of the life in Bilpin is not detrimental to TG particularly when coupled with regular contact with TF and his family.
No medical evidence has been put before me setting out the possible or likely effects of moving TG from his residence with PZ in Bilpin to residing with TF in Vaucluse. In his submissions, however, TF stated that routine and familiarity was important to dementia sufferers like TG. Notwithstanding how TG came to live in Bilpin, I am satisfied that since March 2009, TG has established such a routine in Bilpin.
In deciding that it would be the correct and preferable decision for TG to continue to reside with PZ, I have considered the principles set out in section 4 of the Guardianship Act and have given paramount consideration to the welfare and interests of TG. In doing so, I have placed particular weight on the fact that TG has a strong routine in Bilpin and is settled there with a regular day program at Richmond day care centre. I have also taken into account the evidence before me that TG enjoys what Bilpin has to offer him - namely gardening and proximity to animals he can feed, and simple outings into town. I have further taken into consideration the fact that, over his life, TG has been cared for and stayed with PZ during his time of need.
Access for TF
TG has been consistent in his views that he wishes to have close contact with TF and his family. The fact that he revels in the company of TF and his family is clearly shown in the video footage submitted by TF to the Tribunal. The Tribunal is satisfied that it is in the best interests of TG to have regular contact with TF and his family and acknowledges that this has been made difficult by PZ taking TG to live with her in Bilpin.
During the Tribunal hearing, a timetable was set between July 2010 and December 2010 for monthly contact with TG. The arrangement was for pick up to occur at Blacktown McDonald's at 3pm on the Friday afternoon and for drop off to be 3pm at Blacktown McDonald's on Sunday afternoons. In submissions, all parties to these proceedings have agreed that this is an appropriate access agreement in the circumstances of this case.
I am satisfied that it is for the welfare of TG and in his interests to have contact with TF and his family on a monthly basis from 3pm on the Friday afternoon to 3pm on the Sunday afternoon. Each pick up and drop off should take place at Blacktown McDonald's.
The willingness of PZ to facilitate access according to these orders has been a consideration in my decision to set aside the earlier decision of the Public Guardian and to decide that TG should reside permanently with PZ. Accordingly, the order that TG reside with PZ on a permanent basis is contingent upon PZ facilitating monthly contact visits for TG with TF and his family as set out above.
Orders
The decision of the Public Guardian that TG is to reside on a permanent basis with his son, TF, is set aside. In substitution for that decision, a decision is made that TG is to reside on a permanent basis with his daughter, PZ, on condition that, unless the Public Guardian agrees otherwise, PZ adheres to the following access arrangements: that PZ is to facilitate access to TG for TF and his family on a monthly basis commencing at 3pm on Friday 25 March 2011. At 3pm on Friday 25 March 2011 and at 3pm on the last Friday of each subsequent month, PZ is to drop TG to TF and his family at Blacktown McDonald's. At 3pm on Sunday 27 March 2011 and at 3pm on the Sunday following the last Friday of each subsequent month, PZ is to pick up TG from Blacktown McDonald's.
I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.
REGISTRAR
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Decision last updated: 10 March 2011
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