TF v PZ (GD)
[2011] NSWADTAP 33
•25 July 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: TF v PZ (GD) [2011] NSWADTAP 33 Hearing dates: 13 July 2011 Decision date: 25 July 2011 Jurisdiction: Appeal Panel - Internal Before: Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
Dr B Field, Non-Judicial MemberDecision: The decision of the Tribunal is affirmed.
Catchwords: APPEAL - accommodation and access decision made by Public Guardian - appeal on question of law and for leave to extend to the merits - procedural fairness, findings of fact without evidence - inadequate reasons Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987Cases Cited: Absolon v NSW TAFE [1999] NSWCA 311
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bar-Mordecai v Rotman [2000] NSWCA 123
Beale v GIO (1997) 48 NSWLR 430
K v K [2000] NSWSC 1052
Mifsud v Campbell (1991) 21 NSWLR 725
Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition, Lawbook Co 2009 Category: Principal judgment Parties: TF (Appellant)
PZ (First Respondent)
NSW Trustee and Guardian (Second Respondent)
TG (Third Respondent)Representation: E Stolier (Third Respondent)
TF (Appellant in person)
PZ (First Respondent in person)
File Number(s): 119011 Publication restriction: S 126 of the Administrative Decisions Tribunal Act applies Decision under appeal
- Citation:
- PZ v NSW Trustee and Guardian [2011] NSWADT 48
- Date of Decision:
- 2011-03-10 00:00:00
- Before:
- S Leal, Judicial Member
- File Number(s):
- 093343
REASONS FOR DECISION
Introduction
APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), P MOLONY (JUDICIAL MEMBER), DR B FIELD (NON-JUDICIAL MEMBER)): Two siblings, TF and PZ both want their father, TG, to live with them. The relationship between the siblings has broken down irretrievably and they are not speaking to one another. The Public Guardian is TG's guardian and has power to make decisions about where he should live and about who he should have access to and under what conditions. We refer to these decisions as the "accommodation decision" and the "access decision" respectively.
The Public Guardian originally decided that TG should live with his daughter PZ as long as she co-operated in allowing her father to visit other family members including her brother. Following an internal review, the decision was reversed. The Public Guardian decided that TG should live with his son, TF, on condition that TG had regular contact with other family members including PZ.
PZ applied to the Tribunal for a review of the Public Guardian's decision. The Tribunal stayed the decision and TG remained living with PZ pending the hearing. After a five day hearing, the Tribunal found that TG could live safely and happily with either of his children but, on balance, decided that he should remain living with his daughter. The accommodation decision was expressed to be subject to the condition that, unless the Public Guardian agreed otherwise, PZ adhere to a particular access arrangement. The Tribunal made the following order:
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.
Appeal to Appeal Panel
TF is entitled to appeal against the Tribunal's decision "on any question of law". With the Appeal Panel's leave, the appeal may extend to a review of the merits of the appealable decision: Administrative Decisions Tribunal Act 1997, ( ADT Act ), s 118B(1). TF listed several questions of law and also applied for permission for the appeal to extend to the merits of the Tribunal's decision.
We have decided that the questions of law identified by TF did not result in any legal errors, and certainly none which would justify the decision being set aside. In relation to the merits of the Tribunal's decision, the fact that the accommodation decision was expressed as being conditional on compliance with the access decision raises some difficulties which we explain in detail below.
New decision since Tribunal's decision
Since the Tribunal handed down its decision, the Public Guardian has made a new access decision. The new arrangement is that rather than TG being transferred from PZ's to TF's care at McDonalds in Blacktown, an independent person picks TG up from a Day Care Centre once a month and transports him to TF's workplace. The independent person then returns TG to PZ's home after the weekend visit. The Public Guardian advised the Appeal Panel verbally of this arrangement so it is not clear whether it is expressed to be a condition of the accommodation decision or a separate decision.
Tribunal's decision
Representation
Both PZ and TF were self-represented although the Tribunal gave TF permission for his daughter, ABM, to assist him. The Tribunal appointed a guardian ad litem, Ms Ramjan, to represent TG's best interests: ADT Act , s 71(4A). From the second day of hearing, Ms Ramjan was represented by counsel, Ms Stolier. Ms Phang represented the Public Guardian.
Issues
The Tribunal set out the evidence and the submissions from each party and summarised the issues at [128] to [129] as follows:
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?
The Tribunal was aware that it had a duty to make a decision in accordance with the principles set out in s 4 of the Guardianship Act 1987 ( Guardianship Act ):
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.
The specific factors that the Tribunal considered relevant to its decision included:
(1) TG's views about where he wanted to live;
(2) the circumstances in which TG came to be living with PZ;
(3) how satisfied he appeared to be with the current arrangements; and
(4) his previous lifestyle and choices about where he should live, particularly in times of need.
Grounds of appeal
Based on TF's written submissions, the grounds of appeal on questions of law can be summarised as follows:
(1) breaches of procedural fairness;
(2) making findings of fact with no evidence;
(3) failing to make findings of fact that should have been made; and
(4) providing inadequate reasons for the decision.
The reasons given as to why the appeal should extend to the merits of the Tribunal's decision were:
(1) giving undue weight to the fact that TG had a strong routine with PZ in Bilpin;
(2) the fact that the residence decision was expressed as being conditional on compliance with the access decision; and
(3) the existence of fresh evidence of non-compliance with the access decision.
The Appeal Panel and the parties had access to tape recordings of the Tribunal's proceedings but no transcript. In his written submissions TF quoted extracts from the proceedings. None of the other parties challenged TF's version of what was said and we have accepted that he has transcribed the tape accurately.
Breach of procedural fairness
Legal principles
The Tribunal must afford procedural fairness to each party: ADT Act , s 73(2) and (4). In particular, the Tribunal must take such measures as are reasonably practicable:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and
(b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and
(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.
Balance of power
On 17 May 2010, the second day of the hearing, Ms Stolier of counsel appeared to represent Ms Ramjan, TG's guardian ad litem. TF's daughter, ABM, objected to the fact that Ms Ramjan had not notified TF of her intention to instruct counsel saying that if she and her father had known, they would have obtained legal representation. Ms Stolier said that she was merely Ms Ramjan's "mouthpiece". TF said that the Presiding Member put pressure on him not to apply for an adjournment of the proceedings. He quotes the Presiding Member as saying:
What I'll need to do [TF], before I make a decision on whether we adjourn this matter again which is just drawing it out in a matter that should really be done more quickly . . .
In his written submissions, TF said that:
Believing that it was in TG's best interests to not delay the proceedings any further and acting on the mistaken belief that Ms Stolier was just a "mouthpiece" and nothing more I decided against any further adjournments or delays in order to seek legal representation.
According to TF, the statement that Ms Stolier was to be "simply a mouthpiece" was false and misleading. He said that because of Ms Stolier's presence and the fact that she and Ms Ramjan "coached and advised PZ", the Tribunal denied him procedural fairness.
Parties to proceedings before the Tribunal are entitled to appear without representation or be represented by a lawyer: ADT Act , s 71(4). There is no requirement to obtain leave from the Tribunal before being legally represented or to advise the other parties of that fact.
Ms Stolier's assurance that she was merely a "mouthpiece" for Ms Ramjan does not constitute a denial of procedural fairness by the Tribunal. Regardless of how she described her role, Ms Stolier's duty was to act on Ms Ramjan's instructions and represent her to the best of her ability. Describing herself as a "mouthpiece" is not inconsistent with that duty.
Finally, any assistance Ms Ramjan and/or Ms Stolier may have given to PZ does not constitute a denial of procedural fairness by the Tribunal. Contrary to TF's submission, the Tribunal was not obliged to prevent Ms Stolier or Ms Ramjan from assisting PZ.
Making findings of facts with no evidence
Legal principles
It is an error of law to make ultimate findings of fact for which there is no evidence whatsoever: Aronson, Dyer and Groves, Judicial Review of Administrative Action , 4 th edition, Lawbook Co 2009 at 4.105. That means that even findings of fact which are "perverse" or "contrary to the overwhelming weight of the evidence" do not constitute an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 per Glass JA. Nevertheless, the Tribunal is obliged to make material findings of fact based on at least some logically probative evidence.
The findings of fact for which TF said there was "no evidence" included that:
(1) the Tribunal heard evidence from Rita Kelly, Sharon Ferman, Phillip Hood and Robyn Burgess;
(2) Ms Nichols lived in Australia for 25 years; and
(3) TG stayed with PZ in St Ives from 1988 to 1989 after the sale of the family home in Vaucluse.
These three statements all contain minor inaccuracies. The statements are not ultimate findings of fact and no legal error is disclosed because of the inaccuracies.
Evidence "heard" by the Tribunal
At [18] of its decision, the Tribunal said that it "heard evidence" from fourteen witnesses including Rita Kelly, Sharon Ferman, Phillip Hood and Robyn Burgess. According to TF, the Tribunal did not hear evidence from those four people.
TF quoted the Presiding Member as saying, in relation to the affidavit of Robyn Burgess, that "I think on the basis we have information from Rita Kelly and given this affidavit has come very late, I won't be allowing it in, thank you."
That comment is contrary to the exhibits list which records that the Affidavit of Robyn Burgess dated 12 April 2010 is Exhibit 21. We also note that the exhibits list records that affidavits or statements were admitted from Rita Kelly dated 11 March 2010 (Exhibit 1) and Phillip Hood dated 14 November 2009 (Exhibit 15).
We are satisfied that affidavits or statements from Robyn Burgess, Rita Kelly and Phillip Hood were admitted into evidence. Consequently, although the Tribunal did not "hear" oral evidence from those witnesses, their written evidence was before the Tribunal. Even if the Tribunal recorded that it had "heard" evidence from Sharon Ferman, when it did not, that is not an ultimate finding of fact for which there must be some evidence.
Length of time Ms Nichols resided in Australia
Ms Nichols is TF's and PZ's cousin. Her evidence was relevant to TG's previous lifestyle and the choices he had made about where he should live, particularly in times of need. The Tribunal said, at [33], that:
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.
TF submitted that the finding of fact that Ms Nichols had lived in Australia for 25 years was a finding made without evidence. In her oral evidence Ms Nichols said that she had been married for 25 years and had lived in Australia for half of her married life. In Ms Nichols' affidavit she says that she lived in Sydney "for about 10 yrs during the early 70's."
The statement that Ms Nichols lived in Australia for 25 years, rather than for between 10 and 12 years, is incorrect, however, it is not an ultimate finding of fact for which there must be some evidence.
TG stayed with PZ in St Ives
The Tribunal made the following finding at [149] in relation to the time that TG had spent living with PZ over the years:
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.
The significance of this evidence for the Tribunal was that when in need, TG had tended to rely on PZ to look after him.
According to TF, there was "no evidence" that TG had lived with PZ in St Ives following the sale of the house in Vaucluse. PZ's evidence was that TG and his wife moved in with PZ when she was living at another address in Vaucluse.
The statement that TG lived with PZ in St Ives rather than in Vaucluse may not be accurate but it is not an ultimate finding of fact for which there must be some evidence.
Inadequate reasons
Legal principles
The Tribunal is bound in its reasons for decision to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based", the Tribunal's understanding of the applicable law, and the reasoning processes that led the Tribunal to the conclusions it made: ADT Act , s 89(5). Furthermore, at common law, there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66].
In Beale v GIO (1997) 48 NSWLR 430 Meagher JA expressed the duty to refer to relevant evidence when giving reasons as follows:
First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.
This principle was expressed in a slightly different way by Samuels JA in Mifsud v Campbell (1991) 21 NSWLR 725 at 728:
[F]or a judge to ignore evidence critical to an issue in a case and contrary to an assertion of fact made by one party and accepted by the judge . . . may promote a sense of grievance in the adversary and create a litigant who is not only ' disappointed' but 'disturbed' . . . it tends to deny both the fact and the appearance of justice having been done.
This does not mean that decision-makers are obliged to discuss every hopeless or peripheral point: Bar-Mordecai v Rotman [2000] NSWCA 123 at [211] to [212]. Nor does it require that a decision-maker detail the way in which he or she has reasoned step by step to the conclusion: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273.
The two bases on which TF submitted that the Tribunal had provided inadequate reasons for its decision were that it:
(1) failed to make findings on material questions of fact; and
(2) failed to refer to relevant conflicting evidence.
Failing to make findings on material questions of fact
Summary
TF submitted that the Tribunal failed to make findings on certain "material" questions including:
(1) PZ's credibility;
(2) whether PZ had "kidnapped" TG; and
(3) what was meant by "most of the time".
PZ's credibility
The Tribunal said at [137], that:
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.
According to TF, the Tribunal should have made an adverse finding in relation to PZ's credibility based on the fact that she did not produce the documents that she said she would produce.
The Tribunal expressed the view that it was "unimpressed" with the fact that PZ had failed to produce the documents. However, the Tribunal was not persuaded on the basis of that finding, to make an adverse finding as to her credibility. That does not constitute a failure to make a finding on a material question of fact. The Tribunal's finding was that PZ's credibility was not adversely affected by her failure to produce the documents.
Whether PZ had "kidnapped" TG
TF expressed the opinion that PZ had "kidnapped" TG and taken him to live with her. The Tribunal made the following finding in relation to that evidence:
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.
The fact that the Tribunal did not use the word "kidnapped" in its findings does not mean that it failed to make a finding on a material question of fact. The Tribunal made the finding that PZ did not give TG a choice about moving in to live with her and expressed its disapproval of that decision. Contrary to TF's submission, the Tribunal made a finding of fact on this issue.
What was meant by "most of the time"
At [150], the Tribunal found that:
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.'
According to TF, the Tribunal failed to make a finding as to what it meant by "most of the time" and placed undue weight on Ms Nichols' evidence. Her evidence was that she stayed with PZ for 3 months around 2005 and that TG was living there "most of the time". TF said that the Tribunal failed to ask "the obvious question" as to where TG was living the rest of the time. According to TF, there was evidence that TG was living in his apartment in Kensington at the relevant time. The Tribunal's finding was said to constitute a failure to make a finding on a material question of fact.
Making a finding in accordance with Ms Nichols' evidence does not amount to failing to make a finding on a material question of fact. The Tribunal did not err by failing to require Ms Nichols to be more specific about what she meant by "most of the time" or by failing to ask where TG was living the rest of the time.
Failing to refer to relevant conflicting evidence
Summary
TF submitted that the Tribunal failed to provide adequate reasons because it failed to refer to relevant evidence which was critical to the proper determination of the matter. That evidence included:
(1) that TG and his wife were not living with PZ in 1988 and 1989;
(2) that TG was only living with PZ 'by default';
(3) that TG was not "well cared for";
(4) that TG did not enjoy attending Day Care Centres; and
(5) that TG did not "live with" PZ from 1991 to 1994.
Living with PZ in 1988 and 1989
PZ's evidence was that during 1988 and 1989, following the sale of their home in Vaucluse, her parents lived with her at another address in Vaucluse. The Tribunal found at [147] that TG stayed with PZ from 1988 to 1989 after the sale of the family home in Vaucluse.
TF said that the Tribunal failed to refer to relevant evidence that he provided which was inconsistent with that finding. The documentary evidence to which TF referred was said to be consistent with a finding that TG and his wife sold their home in Military Road, Vaucluse in January 1988 and that as of 1 July 1988 they were living in their own rented accommodation in Old South Head Road, Vaucluse.
The Tribunal did not refer to that evidence when it found that TG and his wife had stayed with PZ in another home in Vaucluse "from 1988 to 1989". The documentary evidence consists of various applications, medical certificates, letters addressed to TG and rental payments on various properties. None of the documentary material provides direct evidence as to where TG lived during this period. The evidence is all circumstantial. While relevant, the documentary evidence was not critical because it did not prove that TG had not stayed with PZ "from 1988 to 1989". The Tribunal did not fail to give adequate reasons by not referring to that evidence.
Living with PZ 'by default' etc
The Tribunal was satisfied 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.
TF submitted that the Tribunal overlooked critical evidence from PZ in relation to the circumstances in which TG was living with her following a stroke. She said that one reason TG was staying with her was that "he couldn't stay with my brother because he didn't have any room". TF interpreted this evidence as being a concession on PZ's behalf that TG did not choose to rely on PZ in the first instance but lived with her "by default". In our view, PZ's remark does not carry the implication that TF suggests and was not critical evidence to which the Tribunal should have referred.
TF also challenged the Tribunal's "findings" that TG needed personal care and that PZ provided that care. PZ gave evidence that she supported TG by cooking, cleaning and washing for him when he was living with her in St Ives. She did not mention that he needed any personal care. She said that TG was capable of driving and that he visited TF weekly when he was living at St Ives. According to TF, the fact that PZ had been receiving a carer's pension since 1993 was not evidence that she was providing care to TG and the Tribunal overlooked TF's evidence that PZ had not cared for her father for 17 years in the capacity she claims.
At [22], the Tribunal set out PZ's evidence about the periods during which her father had lived with her. PZ did not claim that her father was dependent on her for personal care, although she did say that after he had a stroke, TG came to live with her so that she could care for him. TF did not identify the evidence which contradicted PZ's evidence about the degree of care she provided.
TF also said that he presented evidence which should have cast doubt on PZ's claims about the frequency of her visits to TG when he was living in Kensington and/or Vaucluse. TF's evidence is all circumstantial. While relevant, that evidence was not critical to an issue in the case. The Tribunal did not fail to give adequate reasons by not referring to it.
None of the other matters mentioned by TF constitute a failure on the Tribunal's part to refer to relevant conflicting evidence which would justify its reasons being regarded as inadequate.
Whether TG was "well cared for"
TF objected to the Tribunal's finding that TG was "well cared for" by PZ. At [155] the Tribunal said:
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.
One of the medical reports before the Tribunal was a report of Dr Walker, Consultant Cardiologist, dated 1 June 2009. Under the heading "Evidence" at [17], the Tribunal quoted part of that report:
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.'
TF stated that the Tribunal "made a conclusion - that TG is healthier and his blood has improved since the last visit due to the nutritional care provided by PZ - that cannot be sustained by the evidence." On the contrary, if the Tribunal did come to that conclusion, it is supported by the evidence of Dr Walker.
TG did not enjoy attending Day Care Centres
Evidence was before the Tribunal as to TG's routine since he has been living with PZ and, in particular, his attendance at a Day Care Centre. The Tribunal found at [156] that:
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.
In relation to this finding, TF said that the Tribunal had failed to qualify the evidence and had overlooked or failed to take into account the existence of contrary evidence. For example, the Tribunal did not refer to evidence from PZ that TG did not like going to a day care centre when he lived in Vaucluse or that he does not remember the people from the day care centre from week to week.
This evidence was not critical and the Tribunal did not fail to give adequate reasons by not referring to it.
TF also objected to the fact that the Tribunal accepted hearsay evidence from Ms Ramjan that TG attends a Day Care Centre, that he "delights in going" and that they "have no cause for concern". The Tribunal is not bound by the rules of evidence and is entitled to admit hearsay evidence as long as it is logically probative of an issue in dispute: ADT Act , s 73(2) and Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 493.
Despite the fact that Ms Ramjan said in her oral evidence that TG attended once a week, Ms Stolier wrote in her written submissions that TG attended three times a week. The Tribunal found that he attended twice a week. This is not a case of making a finding with no evidence as there was some evidence for the Tribunal's finding. In any case, the finding is not an ultimate finding of fact.
TG did not 'live with" PZ
The Tribunal found at [149]:
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.
The Tribunal accepted PZ's evidence on this matter but, according to TF, failed to refer to inconsistent documentary evidence. TF referred to an email that his nephew, Paul Towler, sent to him on 25 December 2009 saying that he lived with TG in Old South Head Road, Vaucluse from February 1991 to May 1994 (Exhibit 30). Mr Towler did not give evidence and the email is unsigned. The evidence is unreliable and the Tribunal did not err by failing to give it any weight.
Leave to appeal against the merits of the Tribunal's decision
Legal principles
An appeal on grounds other than a question of law is only available if leave is given: ADT Act , s 113(2)(b). The ADT Act does not contain any guidance as to the factors that should be taken into account in determining whether to grant leave. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is in similar terms to s 113(2)(b) of the ADT Act . In K v K , Young J observed at [10] that 'It has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67.' He went on to make a number of observations on this point: see paras [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:
It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
Giving undue weight to particular evidence
At [159] and [160] the Tribunal found that:
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.
TF submitted that the Tribunal placed undue weight on the fact that TG has a strong routine in Bilpin and is settled there.
The fact that TG was settled in Bilpin was only one of the factors the Tribunal took into account in assessing whether TG should remain living with PZ or move to live with TF. The Tribunal said that it gave "particular weight" to that factor (at [160]) but that does not mean it gave it undue weight. Giving TG's routine particular weight does not justify extending the appeal to the merits of the Tribunal's decision.
Conditional order
The Tribunal decided that TG should live with PZ. That decision was expressed to be conditional on PZ adhering to certain access arrangements. Similarly both the initial decision of the Public Guardian and that made on internal review, were expressed as being conditional on access being facilitated by the family member with whom TG was to reside. Despite the fact that the Tribunal has power to make orders subject to conditions, in our view that was not the 'correct or preferable' decision in this case: ADT Act , s 85 and 63.
There are two reasons that a conditional decision is not the best way to frame accommodation and access decisions. Imposing a condition is designed to affect the behaviour of the person with whom the subject person is living. The implied threat is that if the access arrangements are not complied with, the subject person will not continue to live with that person. That is problematic from both a practical and a legal point of view. Practically speaking, the Tribunal has no power to make a new decision if the condition is not fulfilled. Furthermore, the Public Guardian is not bound to make a new accommodation decision if the access arrangements are not complied with.
From a legal point of view, non-compliance with an access decision does not necessarily mean that it will be in the subject person's best interests to change the accommodation decision. Decisions as to where a person under guardianship should reside and as to what access they should have with family and friends are separate decisions. Each should be made on the basis of the principles in s 4 of the Guardianship Act including that the welfare and interests of the subject person should be given paramount consideration.
The accommodation decision needs to be made before decisions about access because there will be no need to make an access decision in relation to the person or people with whom the subject person is living. One of the principles in s 4 is that accommodation decisions should be made keeping in mind the importance of preserving family relationships: Guardianship Act , s 4(e). Consequently, the degree to which the accommodation decision is likely to preserve those relationships is a consideration. However, there will be instances where the welfare and interests of the subject person requires an accommodation decision that does not preserve every family relationship. Once the accommodation decision has been made, an access decision can be made. Again, that decision must be based on the principles in s 4 keeping in mind that the focus is on the interests of the subject person, not the interests of family or friends.
After the Tribunal handed down its decision, the Public Guardian made a new decision about access. The new arrangement avoided any contact between TF and PZ. The Public Guardian advised the Appeal Panel verbally of this arrangement so it is not clear whether it is expressed to be a condition of the accommodation decision. Because the Public Guardian has changed the access decision since the Tribunal made its decision, there is no utility in the Appeal Panel setting aside the conditional decision and making two separate decisions.
Fresh evidence
TF submitted that the Tribunal should take into account fresh evidence about PZ's alleged non-compliance with the Tribunal's condition about access. We have decided not to admit any evidence on that issue. As we have said, we do not consider that the accommodation decision should have been expressed as being contingent on compliance with the access arrangement. Even if the evidence was admitted and we found that PZ had not complied with the access arrangement, that would not necessarily mean that the correct decision is that TG should live elsewhere. As we have already explained, non-compliance with an access decision does not necessarily mean that it will be in the subject person's best interests to change the accommodation decision. Furthermore, the Public Guardian has made a new access decision which has superseded the Tribunal's decision so there is no utility in extending the appeal to the merits of the Tribunal's decision.
Order
The Tribunal's decision is affirmed.
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Decision last updated: 27 July 2011
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