Re: DPM - [2011] WASAT 128

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: RE: DPM [2011] WASAT 128

MEMBER: MS S GILLETT (MEMBER)
MS F CHILD (MEMBER)
DR A MCCUTCHEON (SENIOR SESSIONAL MEMBER)

HEARD: 16 MAY 2011

DELIVERED : 15 AUGUST 2011

FILE NO/S: GAA 926 of 2011
GAA 927 of 2011
GAA 1111 of 2011
GAA 1112 of 2011
EX PARTE
DPM
Represented Person

Catchwords:

Guardianship and administration - Crossapplications for the appointment of a guardian and an administrator - Capacity of the represented person not in issue - Allegations of abuse and neglect - Conflict between family members/parents - Need for appointment of an independent guardian

Legislation:

Guardianship and Administration Act 1990 (WA), s 4, s 42(1)(a), s 42(1)(b), s 43(1), s 44, s 44(1), s 44(2), s 44(5), s 50(1), s 51(2), s 63(3), s 64(1), s 64(1)(a), s 68(1), s 68(3), s 84
State Administrative Tribunal Act 2004 (WA), s 77

Result:

The Public Advocate appointed plenary guardian
Mother appointed plenary administrator

Category: B

Representation:

Counsel:

Represented Person : N/A

Solicitors:

Represented Person : N/A

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Applications for guardianship and administration were lodged with the Tribunal for DPM, a young man with severe physical and cognitive disabilities. The applications were made in the context of the very recent breakdown of his parents' marriage. Serious allegations of abuse and neglect were made by each parent against the other.
Since the separation, DPM had resided with his mother and sister, and he had had no contact with his father. He was in receipt of a disability support pension but without other financial resources. The parties were in agreement that DPM should remain in his mother's primary care but there was intense conflict between the parents about how decisions should be made for their son and what decisions should be made in his best interests. In light of the significant level of conflict and the serious nature of the allegations made, the Tribunal decided there was a need for an independent guardian. Given the range of decisions which might be required to be made for DPM, the Tribunal determined that the guardian needed plenary powers. The Public Advocate was appointed plenary guardian.
The Tribunal found that there was a need for the appointment of an administrator and determined that it was appropriate to appoint DPM's mother as administrator with plenary powers.

Background

These reasons relate to decisions made by the Tribunal in respect to applications made for the appointment of a guardian and an administrator for DPM (represented person). The orders were made on the day of the hearing and written reasons are provided pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
DPM is a young man aged 19 years with severe cognitive and physical disabilities. Until a few months prior to the hearing, he resided with both of his parents and his younger sister in a small country town in Western Australia. Since his parents separated, DPM has resided in the metropolitan area with his mother and sister. At the time of the hearing, DPM's parents were involved in litigation in the Family Court of Western Australia (Family Court) concerning their daughter and in the Magistrates Court relating to contested violence restraining order (VRO) applications filed by DPM's mother in respect to herself and DPM's sister. Extensive written submissions and documentation were lodged with the Tribunal by DPM's father and mother that contain serious allegations of abuse and neglect by the other parent.
The Tribunal held a directions hearing on 5 May 2011 in order to clarify the extent of the matters in dispute and to deal with procedural matters relating to the hearing of the applications. Each applicant sought and was granted access to inspect to all of the documentation lodged with the Tribunal.

Principles to be observed

In determining the applications for the appointment of a guardian and an administrator for the represented person, the Tribunal must observe the following principles which are set out in s 4 of the Guardianship and Administration Act 1990 (WA) (GA Act):
1)The primary concern of the Tribunal must be the best interests of the represented person.
2)Every person is presumed to be capable of looking after his own health and safety, of making reasonable judgments in respect of matters relating to his person and to his estate, and managing his own affairs until, on the evidence, the Tribunal is satisfied to the contrary.
3)A guardianship or administration order may not be made where there is an alternate means of meeting a person's needs, but is less restrictive of his freedom of decision and action.
4)Where an order is made, it must be in terms that impose the least restriction on a person's freedom of decision and action.
5)A plenary guardian may not be appointed where the appointment of a limited guardian would be sufficient to meet the needs of the person.
6)The Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned.

Applications

Crossapplications are made by both the mother and father of DPM, each proposing themselves as guardian and administrator.

Evidence and material before the Tribunal

Prior to hearing this matter, the Tribunal received extensive written material from each of the applicant parents, much of which attested to the unsuitability of the other parent to be appointed as guardian. The material before the Tribunal includes:
•Submissions from each of the parents, including the original applications.
•A doctor's guide dated 15 April 2011 from Dr EP, DPM's current treating general practitioner. Dr EP states that DPM has a diagnosis of 'nonverbal autism', that he is unable to communicate and further, that he is unable to make decisions for himself. Dr EP further opined that it was contrary to DPM's interest to attend the hearing due to the distress it would cause him.
•A report from both the Local Area Coordinator with the Disability Services Commission (DSC) who was involved for the 12 month period up to February 2011 and the Local Area Coordinator who met DPM recently following the relocation to the metropolitan area.
•A report from the Public Advocate in response to the Tribunal's request for investigation.
•Extensive documentation provided by the father in support of his application including copies of joint bank statements, a copy of two interim VRO made in February 2011 which restrain the father's contact with both the mother and DPM's younger sister, notification of hearing concerning the VRO matter in the Perth Magistrates Court and a copy of the VRO application lodged by the mother in respect to both herself and daughter, a copy of the transcript of proceedings of the initial hearing of the restraining order application in the Magistrates Court in February 2011, photocopied pages of the mother's 2010 diary, various notices of demand and letters issued concerning debts, monies owed in the name of the mother and father, various bank statements in the name of the mother or father including an account in the joint names, various documents related to the mother's employment including pay advices, and issues and disputes within the work place, printed material from Facebook entries and a statement provided by the family's veterinarian.
•Documentation submitted by the mother includes statements and letters from family and friends of the family, support letters from service organisations in the disability services sector who have provided support since the separation, copies of affidavits submitted in the Family Court by the father, copies of the response filed by the mother in the Family Court in addition to the notice of child abuse or family violence form and the case information affidavit form filed by the mother in the Family Court, and other related documents.
In support of their applications, both the father and mother made serious allegations about the care of DPM by the other parent.
During the period prior to the separation, the father alleges that the mother neglected DPM's dental care, and mismanaged his pension and used these funds to support her lifestyle. In respect to the period postseparation, the father alleges that the applicant mother lied in order to obtain the interim VRO as this would assist her to exclude him from having contact with his son. The father further questioned whether DPM was being exposed to inappropriate sexual behaviour by the mother.
The mother, in both the written documentation filed with the Tribunal and at the hearing, alleges that DPM has been subject to both verbal and physical abuse by his father over the period of two to two and a half years prior to the separation, and further, that his father had failed to provide DPM with appropriate care in respect to his hygiene and dietary requirements.
It is not necessary to repeat in detail all of the allegations for the purposes of these reasons. In summary, the matters which bear on these applications are that each parent has made serious allegations as to incidents of abuse and/or neglect, particularly during the period prior to the parties' separation.
Notwithstanding the serious nature of the allegations made by the mother as to the physical assault of DPM by his father, the mother stated at the hearing that this incident was not reported to the police and that DPM was not taken to the doctor.
Notwithstanding the serious nature of the allegations made by the father, his view as confirmed at the hearing is that DPM should remain in the day to day care of his mother; albeit with someone other than the mother appointed to make decisions on DPM's behalf.

Relevant legislation

Section 43(1) of the GA Act provides that before the Tribunal can appoint a guardian, it must be satisfied that the person concerned:
...
(i)incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others;
and
(c)is in need of a guardian,
Section 64(1) of the GA Act provides that before the Tribunal can appoint an administrator, it must be satisfied that the person concerned:
(a)is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate; and
(b)is in need of an administrator of his estate,
Section 44 of the GA Act provides that the Tribunal may only appoint as a guardian, a person who has consented to act and who in the view of the Tribunal:
(a)will act in the best interests of the person in respect of whom the application is made;
(b)is not in a position where his interests conflict or may conflict with the interests of that person; and
(c)is otherwise suitable to act as the guardian of that person.
In considering whether a person is 'otherwise suitable', s 44(2) of the GA Act requires the Tribunal to take into account as far as is possible:
(a)the desirability of preserving existing relationships within the family of the person in respect of whom the application is made;
(b)the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate;
(c)the wishes of the person in respect of whom the application is made; and
(d)whether the proposed appointee will be able to perform the functions vested in him.
Section 44(5) provides:
Except where he is appointed to act jointly with another person or other persons, the State Administrative Tribunal shall not appoint the Public Advocate as a guardian unless there is no other person who is suitable and willing to act.

Issues to be determined

Capacity

DPM's disabilities are well documented in medical and other reports. Both the mother and the father concur with the view that DPM is unable to make decisions for himself about his health, his safety and wellbeing or his finances. The Tribunal is satisfied that DPM meets all of the criteria in s 42(1)(a), s 42(1)(b) and in s 64(1)(a) of the GA Act.

Need

Both the mother and the father submit that there is a need for the appointment of a guardian and an administrator.
The Public Advocate also supports the need for the formal appointment of a guardian and an administrator. The areas identified by the parties and by the Public Advocate for decisionmaking by a guardian are: where and with whom DPM should live, the healthcare and services to which he should have access and the contact he should have with others.

The father's submissions

The father states that he was full-time carer of DPM from mid-May 2008 until mid-January 2011 when the mother moved out of the family home. The father alleges that the mother mismanaged DPM's disability support pension, severely neglected his dental hygiene over a number of years and since separation, has prevented him from having any contact with DPM.
The father alleges the mother suffers debilitating anxiety attacks and outbursts of misdirected anger and that she is not a suitable person to be appointed DPM's guardian. The father makes a number of serious allegations including that the mother has lied in order to obtain interim VROs and that DPM may be at risk of sexual abuse arising from the mother's 'oversexualised lifestyle'. In written submissions to the Tribunal, the father requests that a guardian appointed to act on DPM's behalf arrange for a medical practitioner to examine DPM and to test him for sexually transmitted diseases. The reason stated by the father for this request is the possibility of an incestuous relationship between the mother and DPM.
The father disputes all allegations made by the mother that he physically or verbally abused DPM or that he had neglected his care needs. DPM's father submits that he is a man of good character who is motivated by his love for his son, and his desire to have DPM's medical and financial rights protected. The father seeks to be appointed either as sole guardian or jointly with the Public Advocate. In respect to the management of DPM's pension, the father submits that it was in DPM's interest that someone other than the mother be appointed administrator. The father submits that it would be workable for him to be appointed administrator despite the present care arrangements, and he states that he would not deny the mother access to funds, provided receipts had been produced.

The mother's submissions

The mother states that she has been DPM's primary carer throughout his life other than during the period immediately prior to separation when DPM was in his father's care. During this period, the mother states that she was working on full-time basis and the father was not in paid employment. The mother maintains that she is the most appropriate person, not only to continue to care for DPM but to make decisions concerning his health, accommodation, services and contact with others; and to manage his pension.
The mother seeks to be appointed sole guardian and sole administrator for DPM. The mother alleges that the father neglected to meet DPM's care needs during the period from mid2008 onwards, that he was frequently verbally abusive to DPM and that he had physically assaulted DPM on a number of occasions, most recently in August 2010. On this occasion, the mother alleges the father punched DPM on the head, face, arms, chest and back. The mother further alleges that both she and DPM's younger sister were subject to physical abuse by the father.
When asked at the hearing about whether any incidents of assault were reported to the Police or the Department of Child Protection, the mother states that the incidents were not reported until after the separation when statements were made, both in documents to the Family Court and in the application for VROs. The mother referred to the father having a history of post-traumatic stress disorder and severe depression.
The mother's written and oral submissions to the Tribunal are that DPM's interests are best served by her continuing to care for him and continuing to make decisions on his behalf. The mother's view is that it is not in DPM's interest to have any contact whatsoever with his father and further, that there would be no benefit to DPM for his father to have any involvement in his life. The mother said at the hearing that she would be willing to provide information about DPM to his father through their respective lawyers.

The Public Advocate's submissions

The Public Advocate submits that a need exists for a guardian to be appointed with the authority to decide where and with whom DPM should live to make treatment and health care decisions, to decide with whom he is to associate and to decide the services to which he should have access.
The Public Advocate identifies the most contentious issue to be the question of what contact DPM should have with his father and who should make this determination. Due to the high level of animosity between the parents, the Public Advocate's view is that the mother and father are unlikely to be able to consider DPM's best interests ahead of the conflict with each other in respect to the issue of contact and, when making decisions about where DMP is to live, given the impact that DPM's place of residence may have on the contact that he may have with his father.
The Public Advocate submits that the mother is a suitable person to act as decisionmaker other than in the areas of contact and accommodation decisions. The Public Advocate submits that the mother is suitable to be appointed administrator and recommends her appointment.
The Public Advocate further submits that it may be appropriate for both guardianship and administration orders to be for shorter periods, given both the conflict between the parents and their opposing views regarding DPM's care, in order to assess the workability of the orders and the impact that the orders may have on family relationships and on DPM's well-being.

Findings

The Tribunal finds that the context in which these applications are made, that is, the recent separation of DPM's parents, is a critical factor in creating the need for a formally appointed decision-maker to act on DPM's behalf. It is noted that, prior to the separation in early 2011, DPM lived with both parents, both were responsible for his care and, it seems all decisions were made by either one or both of DPM's parents concerning his care needs. Both the mother and the father now make very serious allegations to the Tribunal of abuse and neglect against the other parent during the period prior to the separation. However, both parents acknowledge that no such allegations concerning DPM were made to any third party prior to the separation. In respect to these allegations of abuse and neglect made by each parent against the other, there is insufficient evidence before the Tribunal for any of the allegations to be substantiated. Many of the other allegations put to the Tribunal were of a personal nature against the other parent, and in the Tribunal's view, go to establish the extent of the hostility and conflict existing between DPM's parents.
Despite the serious allegations before the Tribunal concerning both past and present abuse and neglect, the reports before the Tribunal attest to DPM's current care needs being well provided for by his mother, and despite the serious allegations made about the mother, the father does not submit that the current care arrangements should be changed or are contrary to DPM's interests.

The Tribunal is satisfied that, given the significant level of conflict and the embittered nature of the relationship between the parents, there is no less restrictive means of ensuring the needs of DPM are met, other than by the making of a formal guardianship order. Whilst there is an agreed view by both the mother and father that DPM should remain in the mother's day to day care, there are conflicting views as to what role each parent should have in DPM's life and as to both how decisions should be made for DPM and what those decisions should be.
The Tribunal finds that there is no workable proposal by either the mother or the father as to how they could communicate with the other parent if appointed guardian. We do not accept that the proposal that they communicate between solicitors is workable in the longer term.
Whilst it is recognised that the most contentious issue concerns what contact DPM may have with his father, it is the Tribunal's view that the level of animosity and distrust displayed by both parents renders any decisions concerning DPM contentious.
The scope of decisions that are required to be made on DPM's behalf by a guardian include the contact that he should have with his father, where he should live, the treatment, including dental treatment, that he should be provided with, and the services to which he should have access.
The Tribunal does not consider that any of the above decisions can be managed by either the mother or by the father either informally or through the formal appointment of either parent as guardian. Whilst it is accepted that DPM is being well cared for by his mother, that appropriate services have been put in place and that steps have been taken to arrange for assessment of DPM's dental needs, the Tribunal is of the view that a guardian with formal authority is required to determine all major decisions on behalf of DPM to ensure his best interests are considered in light of the ongoing serious conflict between the parents.
The Tribunal is satisfied that given the living expenses incurred on DPM's behalf, his income from his disability support pension is fully committed. There is, however, in the Tribunal's view, a need for transparency as to the management of DPM's income and for authority to act on his behalf to open and operate a bank account and undertake other functions as required to ensure his interests are protected. The need for transparency is important given the conflict and distrust between the parents and the allegations of financial misuse.

Wishes of DPM

All of the evidence before the Tribunal is that, whilst DPM can express his wishes in an immediate way, he cannot contribute in relation to the decision about the proceedings before the Tribunal. We accept that this is so and that it is not possible to ascertain DPM's views and wishes in relation to the appointment of a guardian or an administrator.

Who should be appointed?

The Tribunal must be satisfied that a person (or persons) appointed as a guardian will act in the best interests of the person in respect of whom the application is made, is not in a position where their interests conflict or may conflict with the interests of that person and who is otherwise suitable: s 44(1) of the GA Act. In determining whether a person is suitable, the Tribunal shall take into account as far as possible the matters set out in s 44(2). They include the desirability of preserving existing relationships within the family and whether the proposed appointee will be able to perform the functions.
Section 50(1) of the GA Act provides that a guardian shall act in the best interests of the person. Acting in a person's best interests includes acting in such a way as to maintain any supportive relationships the person has and in consultation with the person, taking into account as far as possible, his views and wishes: s 51(2) of the GA Act.
Section 44(5) of the GA Act provides that, unless she is appointed jointly with another person, the Public Advocate may not be appointed unless the Tribunal makes the finding that there is no other person who is suitable and willing to be appointed guardian.
The Tribunal is not satisfied that the appointment of the mother or the father would be in DPM's best interests. Guardians are required to put the interests of the person they represent ahead of their own interests. Given the involvement of DPM's parents in other litigation in both the Family Court and in the Magistrates Court, and given the nature of the allegations made by each parent against the other, the Tribunal finds that neither parent is at the present time suitable for appointment or in a position to be able to make decisions in DPM's best interests, as such decisions involve some view and judgment as to the other parent. Given the nature and extent of the allegations made by each parent against the other, the level of conflict and animosity and the absence of communication between the parents, the Tribunal is of the view at the present time that DPM's interests are best met by the appointment of an independent guardian with plenary powers.
There are similar provisions in respect to who may be appointed administrator. The Tribunal must be satisfied that a person (or persons) appointed as an administrator will act in the best interests of the person in respect of whom the application is made, and who is otherwise suitable: s 68(1) of the GA Act. In determining whether a person is suitable, the Tribunal shall take into account as far as possible the matters set out in s 68(3). They include the compatibility of the proposed appointee with the person in respect of whom the application is made, and with the guardian of that person; the wishes of that person and whether the proposed appointee will be able to perform the functions.
The Tribunal is satisfied, given the present care arrangements, that it is in DPM's best interest that the mother continue to be responsible for the management of his disability support pension. As administrator, the mother will be required to maintain records of DPM's income and expenditure and to submit accounts to the Public Trustee on an annual basis for examination.

Length of orders

The GA Act provides in s 84 that orders specify a period not exceeding five years from the date of the order, within which the order will be reviewed. The Tribunal considers that DPM's interests are best served by reviewing the orders in two years. It is anticipated that within this time frame, that it is likely that DPM's parents will no longer be involved in litigation in other jurisdictions and the Public Advocate will be in a position to make further recommendations as to DPM's best interests; including whether DPM's needs could be met by a limited rather than a plenary order; whether there may be a less restrictive means by which DPM's needs could be met other than the making of a guardianship order and if there is an ongoing need for a guardian to be appointed, whether a family member may be suitable to be appointed.

Orders

The Tribunal orders that:
1.The Public Advocate is appointed plenary guardian of the represented person with all of the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or an employee employed in the Office of the Public Advocate.
3.The mother is appointed plenary administrator of the estate of the represented person with all of the powers and duties conferred by the Guardianship and Administration Act 1990 (WA).
4.Pursuant to s 62(3) of the State Administrative Tribunal Act 2004 (WA), the address of the administrator is suppressed in orders issued to all parties other than to the administrator and the Public Trustee.
5.These orders are to be reviewed by 16 May 2013.

I certify that this and the preceding [51] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS S GILLETT, MEMBER

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Re: DPM [2011] WASAT 128

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