The Husband v The Public Guardian - [2016] NSWSC 1720

Supreme Court

New South Wales

Medium Neutral Citation: The Husband v The Public Guardian [2016] NSWSC 1720
Hearing dates: 19 August 2016
Date of orders: 21 December 2016
Decision date: 21 December 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Appeal allowed. Decisions of the Civil and Administrative Tribunal dated 23 February 2016 quashed. Plaintiff appointed guardian and financial manager for his wife, the third defendant in the place of the Public Guardian and the NSW Trustee and Guardian respectively.

Catchwords: GUARDIANSHIP AND FINANCIAL MANAGEMENT – Plaintiff/husband seeks judicial review of orders of the Guardianship Tribunal of the Civil and Administrative Tribunal – Tribunal dismissed the Plaintiff’s application to act as his wife’s (the third defendant) financial manager and guardian – Tribunal instead confirmed the appointment of the NSW Trustee and Guardian as financial manager and the Public Guardian as the guardian of his wife – the third defendant suffers from frontal lobe dementia, and currently lacks legal capacity – shortly before guardianship order, the third defendant made allegations against the Plaintiff that he had physically abused her - whether the Tribunal’s decision should be quashed – if the Tribunal’s decision is quashed, whether the Court should appoint the Plaintiff as the third defendant’s guardian and financial manager or should leave the Public Guardian and the NSW Trustee and Guardian acting in those roles.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Family Law Act 1975 (Cth)
NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR 635
Blatch v Archer [1774] 98 ER 969
C v W [2015] NSWSC 1774
EB v Guardianship Tribunal [2011] NSWSC 767
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IR v AR [2015] NSWSC 1187
JAB [2010] WASAT 97
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
M v M [2013] NSWSC 1495
Minister for Immigration& Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
P9/2000 [2011] NSWSC 49
Posner v Collector for Interstate Destitute Persons (Vict) (1946) 74 CLR 461
Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69
Re Coldham; Ex Parte Brideson (1989) 166 CLR 338
Re L [2000] NSWSC 721
Re R [2000] NSWSC 886
Re X [2016] NSWSC 275
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Texts Cited: New South Wales Civil and Administrative Tribunal, Practice Direction 2
Category: Principal judgment
Parties: Plaintiff: [not published]
First Defendant: the Public Guardian
Second Defendant: the NSW Trustee and Guardian
Third Defendant: [not published]
Fourth Defendant: NSW Civil and Administrative Tribunal
Representation:
Counsel

Plaintiff: Ms J.A. Soars
Defendants: submitting appearance
Solicitor
Plaintiff: Mr R. Kent, Kent Attorneys
Defendants: submitting appearance

File Number(s): 2016/163148
Publication restriction: No

Judgment

The Plaintiff is married to the third defendant. Since March 2015 the third defendant has been the subject of guardianship orders under Guardianship Act 1987 (NSW), Part 3 and her estate has been the subject of financial management orders under Guardianship Act, Part 3A.
In these proceedings the Plaintiff brings an appeal to the Court against orders of the Guardianship Division of the fourth defendant, the New South Wales Civil and Administrative Tribunal (“the Tribunal”), that were made on 23 February 2016. The reasons for these orders (“Reasons”) were published on 3 May 2016.
The Tribunal’s 23 February 2016 decision dismissed the Plaintiff’s review applications to vary the existing guardianship orders and financial management orders that had been made in relation to the third defendant on 19 March 2015. The Plaintiff now seeks judicial review of the Tribunal’s decision under the Civil and Administrative Tribunal Act 2013 (NSW), Schedule 6, s 14 (“the NCAT Act”).
In proceedings in (and on appeal from) the Tribunal’s Guardianship Division the NCAT Act, s 65 prohibits the disclosure of names or other information that might lead to the identification of the parties. Such identifying information has therefore been removed from these reasons. And for convenience both in the title to these proceedings and throughout these reasons the Plaintiff will be referred to as “the husband” and the third defendant will be referred to as “the wife”. Other persons, events and things that might lead to the identification of the parties will be given pseudonyms in these reasons as circumstances require.
The husband and wife married in 2001 and have been together as a couple since 1984. By about 2013 the wife began showing signs of the frontal lobe dementia, with which she was finally diagnosed in 2014. Her condition is still deteriorating.
The wife was hospitalised on 19 October 2014 with bruising and injuries. She initially attributed her injuries to a fall at home. After a few days in hospital, she communicated to the hospital’s medical staff that her injuries had resulted from the husband’s acts of domestic violence. That communication led in March 2015 to an application for, and the making of, the guardianship and financial management orders the subject of this appeal.
In the making of the initial orders on 19 March 2015, the Tribunal appointed the first defendant, the Public Guardian, as the wife’s guardian for 12 months and also appointed the NSW Trustee and Guardian (described in the NSW Trustee and Guardian Act 2009 (NSW), s 3(1) and therefore throughout these reasons as “the NSW Trustee”) as her financial manager.
After another hearing on 3 December 2015, the wife’s guardianship order was varied, to grant additional functions to the Public Guardian to make decisions about her accommodation and her access to other people.
The Tribunal conducted a routine end-of-term review of the wife’s guardianship order on 23 February 2016. Simultaneously the Tribunal considered applications the husband made on 25 September 2015 for him to be appointed as her guardian and her financial manager in place of the Public Guardian and the NSW Trustee respectively.
In the result, at the 23 February 2016 hearing the Tribunal made decisions and orders affirming both its existing orders: the Public Guardian and the NSW Trustee were confirmed respectively as the wife’s guardian and financial manager.
The husband appealed to this Court. He filed a Summons on 27 May 2016, appealing from the Tribunal’s 23 February 2016 decisions. The Summons was the subject of minor amendments at the hearing on 19 August 2016. The Amended Summons filed at the hearing sought to set aside both the 23 February 2016 decisions and to substitute for them decisions that the husband be made the wife’s financial manager and guardian.
Submitting appearances were entered for the first defendant, the Public Guardian, the Second Defendant, the NSW Trustee, and the fourth defendant, the Tribunal. None of these parties appeared at the hearing. I am satisfied that the husband’s solicitor informed by email dated 12 August 2016 the legal representative of the First and Second Defendants, Ms Catharine Phang, that this matter had been set down for hearing on 19 August (Exhibit A).
The matter was heard in closed court on 19 August 2016. Ms J. A. Soars of counsel (as her Honour then was) instructed by Kent Attorneys represented the husband. Their careful submissions have been of considerable assistance to the Court in reaching its decision, especially in the absence of any submissions for the defendants. The thorough statements filed on behalf of the husband giving a detailed and admissible narrative account of the husband’s long relationship with the wife have been an important integer in the Court’s decision-making in this case.
The husband brings this appeal from the Guardianship Division of the Tribunal under NCAT Act 2013 No. 2, Schedule 6, Part 6, clause 14, which governs the right of appeal, the time for appeal and the procedure on appeal and provides as follows:

14 Appeals to Supreme Court under this Part:
(1)   A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision:
(a)   in the case of an interlocutory decision of the Tribunal-with the leave of the Court, or
(b)   in the case of any other kind of decision-as of right on any question of law, or with the leave of the Court, on any other grounds.
Note:   See also section 84 (Practice and procedure for appeals to courts under this Act).
(2)   An appeal under this Part is to be instituted:
(a)   in the case of an ancillary or interlocutory decision of the Tribunal-within the period ending 28 days after the relevant decision has been made, or
(b)   in any other case-within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal, or
(c)   within such further time as the Supreme Court may, in any case, allow.
(3)   The Supreme Court in an appeal under this Part may:
(a)   decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b)   permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
(4)   In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a)   the decision under appeal to be confirmed, affirmed or varied,
(b)   the decision under appeal to be quashed or set aside,
(c)   the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(d)   the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court.
(5)   Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal.”

The principal issues considered in these reasons may be broadly stated as follows: (1) whether the Tribunal’s 23 February 2016 decision confirming the existing financial management orders and guardianship orders should be quashed or set aside; and, (2) if the Tribunal’s decisions are quashed or set aside, what relief, if any, should this Court now grant to the husband and in particular whether another decision should be substituted for the Tribunal’s 23 February decisions, namely, that the husband be appointed financial manager and guardian for the wife.
The Court made the orders below on 21 December 2016, indicating at the time of these orders that it would publish its reasons later. These are the reasons for the orders of 21 December 2016.
Many facts were in contest before the Tribunal. First therefore, it is useful to record the uncontentious facts including the Tribunal’s findings. Then these reasons set out the applicable legislation in relation to financial management orders and guardianship orders, before proceeding to deal with the husband’s grounds of appeal concerning each set of orders.

The Husband, the Wife and the Events of 2014 – 2016

The husband and wife lived together for 17 years before their marriage in February 2001. At the time of the hearing they were respectively 66 and 65 years of age. They have lived separately since 19 October 2014, when, because of the events the subject of these proceedings, the wife entered the local hospital and was from there ultimately discharged to a nearby Aged Care Facility (“the aged care facility”).
The husband and wife have executed mutual wills. The wife’s will of 1 November 2004 named the husband as the sole beneficiary of her estate. On 5 August 2009 the wife granted an enduring power of attorney in favour of the husband.

The Wife’s Mental Health Issues and Hospitalisation

The wife’s mental state was declining by late 2013. Professor H, a neurologist, examined her in August 2014. Ms M, a neuropsychologist, examined her in October 2014. They both formed the opinion that the wife’s presentation was consistent with logophenic Alzheimers’s disease, a form of primary progressive aphasia that affects cognitive and behavioural function. But Ms K, a clinical neuropsychologist examined her later and diagnosed her in December 2014 as suffering from frontal lobe dementia.
On 19 October 2014, the husband says that he found the wife lying injured in her bed at their home. She was quickly admitted to the emergency department at the local hospital, where she remained for a few days. On 20 October 2014, when being questioned about her injuries, the wife told hospital staff that she had been drinking and had fallen down stairs and hit her head. But later she communicated to hospital staff: that she had been assaulted by the husband; and that although she had previously denied that he had abused her, she was now “fed up” with “it” and wanted [presumably the abuse] to stop.
In November 2014, the wife was transferred to the transitional care unit at the local hospital. A case manager from this unit, Ms S, applied to the Tribunal for guardianship and financial management orders for the wife.

Police Intervention and the Attempted AVO against the Husband

When the wife was admitted to the local hospital, the hospital records and the husband’s own evidence show that he provided a history to the medical staff that the wife had consumed excessive amounts of alcohol prior to and on the night of 19 October 2014. But after admission Prof. H noted that she showed no signs of alcohol withdrawal and consistently scored a zero on the alcohol withdrawal scale. The husband also told hospital staff that the wife’s family had a history of dementia. Some evidence before the Tribunal and this Court contradicts this account of the wife’s family history.
A few days after her admission in October 2014 Dr P, a Neurology Registrar reviewed the wife. Prof H sat in on their session. During this consultation the wife “confided that her husband [name not published] inflicted the physical violence that occurred on Sunday (19th Oct) that lead to the admission on Monday early morning (20th Oct)”. The wife alleged that the abuse had been going on for “years”, and she said that she was afraid of the husband. She also expressed this to another doctor Dr D, claiming that the husband was “very aggressive” and had been abusing her for “at least the previous 12 months”.
Following the wife’s admission, Prof. H contacted Constable M the Domestic Violence Liaison Officer (DVLO), at the local police station. Prof. H advised Constable M of what were taken to be allegations of domestic violence against the husband. The police attended the hospital later that evening to interview the wife, who is recorded as having repeated the substance of earlier statements she had made about the husband to doctors Prof. H and D. Earlier this same day a female friend of the wife, Ms N, visited the hospital and informed hospital staff that she was concerned that the husband had been misusing the wife’s personal funds. Ms N’s evidence is examined later in these reasons.
The police contacted the husband on 28 October 2014, requesting that he attend the local police station for a video interview and that he forfeit certain firearms in his possession. On 1 November 2014 the husband attended at the local police station. Whilst he was there he was served with an interim Apprehended Violence Order (AVO).
Whether or not the AVO would proceed supported by the wife’s evidence became controversial. On 29 October 2014, the wife was visited at the local hospital by friends. That same day she also received a phone call from her step daughter in Queensland. A ward nurse at the hospital says she overheard the wife informing her caller that the husband had hit her and that she was seeking an AVO. Following this telephone call, the wife approached Ms W, a social worker, and said that she no longer wanted to pursue an AVO against the husband. The wife later changed her mind and agreed to proceed with the AVO. The following day the husband attempted to visit the wife but hospital staff turned him away.
On 25 November 2014, the wife attended at the local Court House to give evidence in the Local Court proceedings in relation to her AVO. The wife was taken to a secure room to give her testimony. But she was unable to proceed, stating “I don’t want to see [the husband]” and that she was “feeling frightened” apparently after seeing one of the husband’s friends through the window.
On 25 November 2014, the husband gave undertakings to the local DVLO that he would pack the wife’s possessions and give them to the police. He did so on 18 December 2014.
On 9 January 2015, the DVLO informed the wife’s case manager that the AVO hearing had been brought forward to Friday, 16 January 2015, and that the wife would not be required to attend.
On 14 January 2015, the police informed the wife’s then case manager, Ms W, that the police were no longer going to pursue an AVO against the husband as there were “no grounds for an immediate AVO as there is no immediate threat” to the wife and that the anticipated 16 January hearing would not be taking place.
The hearing was adjourned to 27 January 2015. The interim AVO was ultimately dismissed due to the wife’s failure to support it with her evidence. The police took the view that she was not a reliable witness.
The AVO’s dismissal took place at the Local Court on 20 February 2015. Costs were awarded on the dismissal of the AVO to the husband against the police. But following the dismissal, hospital staff still banned the husband from seeing the wife at the hospital before responsibility for her guardianship and the financial management of her estate were decided. The Court has not been called on to examine whether they had a proper legal basis for taking this course.

The 19 March 2015 Guardianship and Financial Management Orders

On 19 March 2015, the Tribunal considered two applications about the wife’s care: one regarding her guardianship; and the other for her financial management. Ms S, the case manager at the Transitional Care Unit at the local hospital brought the applications.
At the hearing on 19 March 2015 the evidence before the Tribunal was to the effect that: (1) the wife had lived with her husband prior to her hospitalisation in late 2014, but had since been separated from him; (2) the wife had been hospitalised in October 2014, and subsequently transferred to transitional care in November 2014; (3) the wife could not return home due to domestic violence; (4) an apprehended violence order (AVO) had been sought to protect the wife which named the husband as the defendant, but that this AVO application had not proceeded.
The Tribunal decided on 19 March 2015 to make a guardianship order appointing the Public Guardian to make decisions for the wife about her accommodation, general services and legal services for a period of 12 months.
The Tribunal also made a financial management order committing the wife’s affairs to the management of the NSW Trustee for an unlimited time period.
The husband was not notified of this March 2015 hearing before the Tribunal. Not surprisingly he did not participate in it. The husband’s absence from the March 2015 hearing is a central feature of a number of the husband’s arguments on this appeal, both with respect to the financial management orders and the guardianship orders.

Guardianship Act, s 3F specifies who are “parties” to proceedings brought under the Guardianship Act. The husband contends that the Guardianship Act mandated that he was always a statutory party to the Tribunal’s proceedings, both for the financial management orders and the guardianship orders. The applicable provision of the Guardianship Act, s 3F(1), (2) and (5) relevantly provides as follows:

“3F   Persons who are “parties” to proceedings under this Act
(1)   A person is a party to proceedings before the Tribunal under this Act as provided by this section.
(2)   Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act:
(a)   the applicant,
(b)   the person to whom the application relates,
(c)   the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing,
(d)   the person, if any, who has care of the person to whom the application relates,
(d1)   the enduring guardian, if any, of the person to whom the application relates,
(e)   the Public Guardian,
(f) any person whom the Tribunal has joined as a party under section 44 of the [NCAT Act].
…
(5)   Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a financial management order under this Act:
(a)   the applicant,
(b)   the person to whom the application relates,
(c)   the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing,
(d)   the person, if any, who has care of the person to whom the application relates,
(e)   the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force,
(f)   the NSW Trustee,
(g any person whom the Tribunal has joined as a party under section 44 of the [NCAT Act]”

Similar provisions for the deeming of persons to be parties to proceedings apply when the Tribunal undertakes reviews of orders made on an initial application.
Whether or not the husband did indeed qualify under Guardianship Act, s 3F(2) and (5) as a party to the Tribunal’s proceedings is an important question in these proceedings. The Tribunal concluded at its 23 February 2016 review hearing that the husband did so qualify and accepted that he was a party to its proceedings.

Events Subsequent to the 19 March 2015 Hearing

The husband only first became aware of the 19 March 2015 hearing and orders in late May 2015, when the Commonwealth Bank of Australia (CBA) informed him that his power of attorney from the wife had been revoked and that a transaction he had initiated in good faith on their joint account had been cancelled. On 27 May 2015 the CBA sent him a letter stating that “the NSW Trustee and Guardian requested on 4 May 2015 to close [the wife’s] credit card account as they believe she is being finically exploited and to transfer the funds to their account”.
The husband reacted quickly. On 1 June 2015 (and again on 21 August 2015) the husband’s solicitor, Mr Rodney Kent of Kent Attorneys, telephoned and then wrote to the Tribunal contending under Guardianship Act, s 3F(5)(c) and (d) that he was a party to the proceedings on 19 March 2015 on the grounds that: he (1) he was the wife’s husband; and/or, (2) he had previously provided care to the wife. He sought information as a party about the evidence before the Tribunal and the orders the Tribunal made on 19 March 2015.
On 27 July 2015, the Public Guardian applied to the Tribunal to review the wife’s guardianship order by adding additional guardianship functions to the existing order.
On 27 August 2015, the Tribunal adjourned the Public Guardian’s application. It planned to convene an interlocutory hearing about the husband’s party status in the proceedings. The Tribunal held in the interim that the husband should not be provided with any materials relating to the Tribunal’s 19 March 2015 hearings, until it could be determined whether he was entitled to be a party.
On 11 September 2015, the husband’s solicitor, Mr Kent again wrote to the Tribunal contending that the husband was a statutory party and had been entitled to be present at the 19 March 2015 hearing. Once again he sought copies of the documents already before the Tribunal in the proceedings. On 14 September 2015, an officer from the Tribunal responded to Mr Kent stating that documents would not be provided to him, pending a hearing set down for 2 October 2015, which would determine whether the husband was indeed a statutory party to the proceedings.
On 25 September 2015, the husband applied for a review of the 19 March 2015 guardianship and financial management orders.
On 2 October 2015, the Tribunal concluded that the husband was a party to the Public Guardian’s review application as he was a person who had previously cared for the wife: Guardianship Act, s 3F(5)(d). But the Tribunal was not satisfied that the husband had a close and continuing relationship with the wife as her spouse, as would be required to establish his party status under Guardianship Act, s 3F(5)(c). The Tribunal therefore ordered under NCAT Act, s 64(1)(d) that any information that might disclose the wife’s location was not to be disclosed to the husband.
On 3 December 2015, the Tribunal reviewed the guardianship order made on 19 March 2015. The Tribunal renewed the Public Guardian’s appointment as the wife’s guardian, but made several variations to the order, allowing the Public Guardian to make decisions as to her accommodation, services, health care, medical and dental treatment, and access to people.

The 23 February 2016 Hearing

On 23 February 2016, the Tribunal undertook an end of term review of the guardianship order made on 19 March 2015, as varied on 3 December 2015. Simultaneously the Tribunal heard the adjourned hearing of the husband’s application for review of the guardianship order and financial management order.
The participants in the hearing before the Tribunal included Ms Wendy Kemp, the Senior Guardian with the Public Guardian and responsible officer for the wife, Mr David Burwood, the wife’s separate representative and the husband, represented by his counsel Ms Robinson and solicitor Mr Kent.
At the 23 February 2016 hearing Mr Burwood expressed the view, with which Ms Kemp, Ms Robinson and Mr Beal agreed, that he did not believe that it was in the wife’s best interests to participate in the hearing. It was not in issue that the wife continued to be “a person in need of a guardian” within Guardianship Act, s 14 and that she was at least partially unable to manage her person.
The Tribunal “was satisfied that whilst it would be in the interests of [the wife] to participate in the hearing if she were able, her inability to effectively participate, together with the risk of distressing her, were such that the Tribunal should proceed with the hearing in her absence but with Mr Burwood present to represent her interests”.
Following the 23 February 2016 hearing, the Tribunal made orders confirming the appointment of the NSW Trustee as the financial manager of the wife’s estate and the appointment of the Public Guardian as the wife’s guardian for 12 months. The Tribunal published its reasons on 3 May 2016.

Actions Taken under the Guardianship and Financial Management Orders

Important decisions about the wife’s way of life and the management of her estate have been made under the authority of the Tribunal’s 19 March 2015 orders, including as subsequently varied.
The Public Guardian made a decision on 4 June 2015 to permanently accommodate the wife at the aged care facility. The Public Guardian has permitted the husband to visit the wife there weekly, which the evidence before this Court shows has occurred. But these visits are required to be supervised. The husband claims he has made several requests to the Public Guardian, seeking additional visiting rights. But he contends that the Public Guardian’s officers have told him that this would not be appropriate due to a lack of staff available from Chameleon Lifestyle Services (the Public Guardian’s chosen care service provider) to supervise the husband and wife together during these visits.
The NSW Trustee has been in communication with the husband about the management of the wife’s estate. On 26 July 2016 the NSW Trustee emailed Mr Kent, the husband’s solicitor requesting that he: (1) pay $37,444.23 for the care of his wife that the aged care facility claimed was then in arrears, and (2) pay a $540,000 refundable accommodation deposit (or RAD) for her continued accommodation with the aged care facility. The husband’s evidence is that until receiving this email he had been unaware that either of such payments were outstanding. Nothing in the balance of the evidence before the Court contradicts the husband’s evidence about this.
The husband cleared the first debt of $37,444.23 on 11 August 2016, using funds from his and the wife’s joint savings account. The husband submits in the present hearing that he would like to pay down the second debt of $540,000 for the RAD, but that he does not currently have enough money in his bank accounts to be able do so. He submits on this appeal that it would not be financially sensible to make a part payment of the RAD before he has a plan to realise his and the wife’s joint real estate assets, including certain New South Wales real estate. But the husband stated in his affidavit of 15 August 2016 that he would pay $150,000 himself towards the bond should he be appointed as the wife’s financial manager.

Findings as to the husband’s and the wife’s financial affairs

The husband has given an account of the couple’s financial history. The Court wholly accepts that account, which is almost entirely unchallenged but which nevertheless by reason of its internal consistency and detail is inherently credible. The husband’s account and the Tribunal’s Reasons are the basis of findings about relevant parts of the couple’s financial affairs and their relationship, as set out in this section.
The husband and wife successfully acquired and developed a number of properties together during their marriage. The wife was the more financially and computer literate of the two. Until the wife’s dementia supervened, she had full personal control of all the couple’s financial affairs of the husband was out “in the field” doing renovations and performing in front of office work. But when the wife could no longer master transactions and accounts, the husband, with the help of his daughter and the local CBA branch, came to grips with past financial transactions and internet banking.
This couple were not extravagant. Their personal expenditure was not complex. They purchased groceries at supermarkets, liquor from discount liquor stores and paid their regular electricity, rates, telephone and gas bills and other ordinary household outgoings.
At the time the NSW Trustee was appointed to manage the wife’s estate, the couple owned three properties (No 467, No 6 and No 4) and had just sold another (No 465). So as to ensure that the couple cannot be identified in these reasons these properties are only identified by portions of their street numbers.
No 465. The couple had just sold No 465, when the NSW Trustee was appointed. In August 2014 they received into their joint CBA Pensioner Security account the proceeds of the sale of No 465 in the amount of $487,444. The husband has fully conserved those proceeds. His account of his dealings with them is detailed elsewhere in this judgment.
No 467. This property was the couple’s domestic residence from August 2014. The husband now lives there alone. They own No 467 as joint tenants. They had decided by 2012 to sell it and become “grey nomads”, travelling together around Australia in a mobile home. To this end in 2012 they put No 467 on the market for sale. When the NSW Trustee was appointed it directed that No 467 be taken off the market.
No 6. The husband and wife purchased No 6 in 1998 for $90,000. At the time of the appointment of the NSW Trustee this property was still being developed.
No 4. The couple purchased No 4 in 2004 for $200,000. It is only a vacant block of land. The husband’s son contributed half its purchase price and has 50% equity in the property.
The couple’s history of acquisition of these properties dates back to their move into the local area. They initially lived together in Sydney. But in 1997 they took a sea change, acquiring a general store in the local area in 1998. The shop was too cramped for them both to live and work in, so they purchased No 6. But a more desirable property came on the market, No 465, which they purchased as well and moved into.
After many years of hard work the couple sold their shop premises in 2006, taking their first step towards retirement. Using the proceeds of sale of the shop, in 2007 they acquired No 467 for about $480,000. But they only moved into No 467 shortly before the wife’s admission to hospital, just after they had sold No 465.
Their next step towards retirement was selling the general business they ran within the shop premises. They finally achieved this in 2010, when they accepted an offer for the purchase of the shop business for $1.076 million. After the business sale settled the couple used its proceeds to pay out mortgages on No 465 and No 467, together with their other debts and the employee entitlements of the business.
After the sale of the business the couple felt reasonably well off. But they were lucky as well. The wife won the Deaf Children’s Charity Lottery with prize money of $350,000. Importantly, this was not by any means their largest asset. The lottery winnings made them more comfortable than they would otherwise have been. As will be seen below, the lottery winnings become a source of considerable misunderstanding among some informants about this couple.
This couple’s successful financial history has meant that that neither of them has ever qualified under the means test for the aged pension.
By 2012 the couple’s plan was to liquidate all their properties and move away from the local area, possibly up to Queensland, where the husband had family. They starting by putting No 467 on the market but it did not sell quickly. Selling No 6 and No 4 were also on their agenda. No 6 required renovations before going on the market: the husband planned to complete a second-storey renovation, for which they had gained development approval in the late 1990s.

The Appeal

Ms Soars argued the appeal on the basis of the Amended Summons (filed on 19 August 2016 during the hearing). The husband’s appeal identifies a number of alleged errors in the Tribunal’s Reasons on what are said to be questions of law in relation to both the financial management orders and the guardianship orders made on 19 March 2015. In the alternative, the husband seeks the Court’s leave to appeal on other grounds, which require leave to adduce fresh evidence.
The law applicable to appeals under the NCAT Act may be shortly stated. In C v W [2015] NSWSC 1774 Lindsay J comprehensively collected the case law in relation to such appeals and explained the structure of the appellate provisions in a way that needs no further discussion. His Honour explained the relationship between this Court’s jurisdiction to grant administrative law remedies and the operation of the rights of appeal under the NCAT Act in the following way in C v W at [40] – [46]:

“40. The [NCAT Act] does not oust the jurisdiction of the Court to grant administrative law remedies, but confers rights of appeal that enable the Court to supervise the work of NCAT by focusing principally upon questions of principle. The primary way this is done is by the grant of an appeal “as of right” limited to a “question of law”, absent a grant of “leave” by the Court for an appeal on any other ground: Schedule 6, clause 14(1)(b).”
41. Through the medium of the leave mechanism the Court controls whether, and on what terms, it engages disputes about the factual content of a case. A grant of leave to allow a merits review of a Tribunal decision does not depend upon there first being an appeal on a question of law: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257[61].
42. In the context of an appeal from a decision of the Guardianship Division of NCAT to refuse to make a financial management order under the Guardianship Act, clause 14 of Schedule 6 to the NCAT Act, and the general law relating to appellate interference with discretionary decisions, provide three interrelated and overlapping gateways through which an appellant who challenges the NCAT decision may have to navigate.
43.   First, absent a grant of leave, an appeal under clause 14(1)(b) is limited to an appeal “on a question of law”. What is meant by the expression “a question of law” in this context may be conveniently explained by:
(a)   seminal observations made by Young J in ReR [2000] NSWSC 886 at [24]-[25] in the context of an appeal on a question of law, under section 67 of the Guardianship Act, from the Guardianship Tribunal; and
(b) a more recent collaboration of the law, to much the same effect, by an Appeal Panel of NCAT (constituted by R Seiden SC and D Goldstein) in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [11]-[13] in the context of an “internal appeal” for which section 80(2) of the [NCAT Act]provides in terms similar to those found in Schedule 6 clause 14(1) of the Act.
44. Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court’s protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191].
45. Thirdly, given the broad evaluative or discretionary content of a decision to make, or to decline to make, a financial management order, appellate interference with such a decision will generally require identification of an error of principle or the like: House v The King (1936) 55 CLR 499 at 504-505.
46.   The terms in which these distinct gateways to appellate review are expressed should not be overlooked. They all point in the direction of requiring identification of some error beyond a mere error of fact.”

But what is a question of law for the purpose of this appeal? Young J explained in this context what might qualify as a question of law in the following way, in Re R [2000] NSWSC 886, at [24]-[25]:

“[24] The appeal is an appeal on a question of law only. It is sometimes quite difficult to separate out what are matters of fact and what are matters of law. In dealing with an appeal from a Tribunal of this nature, as is said in Wade and Forsyth, Administrative Law (Oxford University Press, 1994) 7th Edition at page 945:
‘It is of great importance that it [the right of appeal on a point of law] should be generally available, so that the courts may give guidance on the proper interpretation of the law and so that there may not be inconsistent rulings by tribunals in different localities. It is through appeals that the courts and the tribunals are kept in touch, so that the tribunals are integrated into the machinery of justice.’

This is the prime reason why there is an appeal as of right.
[25] Just what is in the category of a question of law is sometimes hard to decide. However, generally speaking the matter is quite clear. If there is a question as to the meaning of an Act in the circumstances, if there are other questions of construction of the law or vital agreements, if there is a finding of fact made of which there is no evidence to support it or perhaps if so much irrelevant material enters into the decision making process that it is a nullity, then one has a question of law. Outside that field, normally one has a question of fact. This is so even if there is a finding of fact which is against the evidence and the weight of the evidence: Haynes vLeves (1987) 8 NSWLR 442, 469 at 470. This is an oversimplification, but, generally speaking, is the way in which the distinction operates.’”

Finally, the Tribunal’s own appeal panel has conveniently collected some applicable law upon many of the possible questions of law that commonly arise on appeals such as this, for the purposes of assessing the Tribunal’s internal appeals. But the summary is also useful for present purposes, because it is drawn upon from the general law which also applies to appeals to this Court. In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] the Appeal Panel of the Tribunal expressed that summary in the following way:

“‘13. Without expressing exhaustively possible questions of law, they include in no particular order:
14. Whether there has been a failure to provide proper reasons: Stoker v AdeccoGemualeConstructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41];Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] per McColl JA (Ipp JA and Bryson AJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] and the following paragraphs, per Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing). Section 62 of the [NCAT Act] requires the Tribunal to furnish reasons. This requirement was earlier reflected in s 49 of the Consumer,Trader and Tenancy Tribunal Act 2001 (NSW). Recently, the Appeal Panel (Wright J, President; G Walker, Senior Member; and M Bolt, General Member) in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 said in relation to the similar provision in s 89 of the Administrative Decisions Tribunal Act 1997 (NSW) at [32]:
32 Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

15. Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
(16) Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing).
(17)   Whether there was a failure to afford procedural fairness: Italianov Carbone [2005] NSWCA 177; Clements v Independent Indigenous AdvisoryCommittee[2003] FCAFC 143 at [8]. Section 38 of the [NCAT Act] prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20].
(18) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter[2014] NSWCATAP 6. It was said at [26] to [29] as follows:
26 Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J).
27   Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J).
28   Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azrielv NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision.
29 In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination.

(19) Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40:
In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ...

(20) Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company vValuer-General (1940) 40 SR (NSW) 126 at 138.
(21) Whether the decision is so unreasonable that no reasonable decision-maker would make it: Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.’”

The husband identifies ten grounds upon which he contends the Tribunal erred in law, when rejecting his application for financial management of the wife’s estate and affirming the appointment of the NSW Trustee as her financial manager. These ten grounds are dealt with in groups below, followed by the seven grounds, also grouped, on which the Tribunal is said to have erred in law in relation to the guardianship order.
But before considering the appeal it is useful to review the statutory structure leading to the Tribunal’s orders.
The Court has decided to deal with this appeal by way of a new hearing: NCAT Act, Schedule 6, clause 14(3). The Court’s consideration of the grounds of appeal below warrants a new hearing, at least to re-examine the materials available to the Tribunal in light of fresh evidence. The events occurring since the Tribunal held its last hearing on 23 February 2016 are material to the issues that the Court has to decide and they require the Court to re-weigh the relevant considerations in this matter. Most of the material available to this Court was the same as the material before the Tribunal, with the exception of important updating affidavits of the husband of 15 August 2016 and the husband’s solicitor, Mr Rodney Kent, of 29 July 2016. The Court permitted this fresh evidence to be read as appropriate in the circumstances as it related to events since the Tribunal’s decision: NCAT Act, Schedule 6, clause 14(3)(b).

Grounds of Appeal relating to financial management orders

General Principles Applicable to the Exercise of Guardianship Act Functions

Both in relation to the financial management orders and the guardianship orders under appeal, the Court is exercising functions under the Guardianship Act of the appeal. The Court must therefore apply the command of Guardianship Act, s 4, which provides as follows:

“4 General principles
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.”

These principles are examined closely later, as they apply in this case to the Court’s functions not only in relation the financial management orders but also the guardianship order.

Legislation relevant to the financial management orders

The Tribunal is empowered to make financial management orders in accordance with Guardianship Act, Part 3A. The Tribunal may exclude a specified part of a person’s estate from a financial management order: Guardianship Act, s 25E. The Tribunal may make a financial management order in connection with the making of a guardianship order under Guardianship Act, Part 3 in respect of the person concerned: Guardianship Act, s 25F.
The grounds for the making of a financial management order are specified in Guardianship Act, s 25G as follows:

“25G Grounds for making financial management order
The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person’s capability to manage his or her own affairs and is satisfied that:
(a)   the person is not capable of managing those affairs, and
(b)   there is a need for another person to manage those affairs on the person’s behalf, and
(c)   it is in the person’s best interests that the order be made.”

An application to the Tribunal for a financial management order may be made by the NSW Trustee, or the person who is the subject of the application or any person who in the opinion of the Tribunal has a genuine concern for the welfare of a person who is the subject of the application: Guardianship Act, s 25I.
But the legislation places limits on the extent to which financial managers may deal with the estate concerned. Guardianship Act, s 25M provides as follows.

“25M Tribunal may commit estate of protected person to management
(1)   If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order:
(a)   appoint a suitable person as manager of that estate, or
(b)   commit the management of that estate to the NSW Trustee.
(2) Despite section 61 of the [NCAT Act], an order under subsection (1) (a) does not authorise the person appointed as manager to interfere in any way with the estate concerned unless:
(a)   such directions of the Supreme Court as are relevant to the management of the estate have been obtained, or
(b)   the NSW Trustee has, under Division 2 of Part 4.5 of the NSW Trustee and Guardian Act 2009, authorised the person to exercise functions in respect of the estate.
(3)   However, the person appointed as manager may take such action as may be necessary for the protection of the estate (including action specified by the Tribunal) pending the directions of the Court or authorisation by the NSW Trustee.”

Guardianship Act, Part 3A, Division 2 provides for the review and revocation of financial management orders. The Tribunal may order the financial management order may be reviewed within a specified time and the requirement for the review may be contained in the financial management order itself or in a subsequent order: Guardianship Act, s 25N. The Tribunal may of its own motion and must on hearing an application s 25R, review a financial management order: s 25N.
The protected person concerned, the NSW Trustee, the manager of the estate of the protected person, and any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the protected person, are entitled to apply for an order revoking or varying the financial management order: Guardianship Act, s 25R. On review the Tribunal must vary, revoke or confirm the order and may review its appointment of a particular manager of the protected person’s estate: Guardianship Act, s 25P.
Division 3 deals with the review of the appointment of managers. The Tribunal may on review of the appointment of manager of a protected person’s estate take the following actions:

“25U Action on review
(1)   On reviewing its appointment of the manager of a protected person’s estate, the Tribunal may:
(a)   revoke the appointment, or
(b)   confirm the appointment.
(2)   The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2.
(3)   If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section.
(4)   The Tribunal may revoke the appointment under review only if:
(a)   the person appointed seeks the revocation, or
(b)   the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or
(c)   the financial management order in respect of the estate concerned is revoked.
Note: Section 25Q provides for the disposal of the estate on revocation of a financial management order.”

This is sufficient background to the relevant legislation to consider the grounds of appeal in relation to financial management orders.

Ground 1 – (Amended Summons, Prayer for Relief 1) the Tribunal applied the wrong principle of law to the application, to vary the financial management order to change the wife’s financial manager

The husband contends under Ground 1 that the Tribunal applied wrong principles of law in reasoning to its conclusion that it should not revoke the existing financial management orders in favour of the NSW Trustee over the wife’s estate. The starting point is to identify the parts of the Tribunal’s findings challenged under this ground of appeal. The husband identifies paragraphs [132], [158], [163], [166], [169] and [171] of the Reasons.
The Tribunal concluded that it would not be in the wife’s best interests to revoke the appointment of the NSW Trustee as her financial manager and that even if the NSW Trustee’s appointment were revoked, it would not be in the wife’s best interests for the husband to be appointed as her financial manager in its stead: Reasons at [171].
The Tribunal posed (at [132]) the questions: (1) whether it was in the best interests of the wife to revoke the NSW Trustee’s appointment; and (2) if so, who should be appointed financial manager; and, (3) if not, should the NSW Trustee’s appointment be confirmed.
The Tribunal identified that the applicable principle is that the dominant consideration in making orders about financial managers was the welfare of the person whose estate is in need of management, citing Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, at 241 the Tribunal noted (at [158]) that an applicant need only show “some reason”, as opposed to a “clear and convincing” case, that the form of proposed financial management orders would better advance the interests of the protected person.
The Tribunal accepted by the time of its decision on 23 February 2016 that the husband had standing to appear at the 19 March 2015 hearing but found that in February 2016 it would nevertheless be unsuitable for the husband to be appointed as the wife’s financial manager. The Tribunal reasoned (at [166]), that in the then “current circumstances” of February 2016 the husband would be in a position of potential conflict of interest in respect of making legal and financial decisions on her behalf.

“[166] When the financial management order was made on 19 March 2015 [the husband] had not been identified as a party. He had not been advised of, and was not present at the hearing. The Reasons for Decision of the Tribunal on that occasion indicate that at that time the Tribunal was unaware of the appointment of [the husband] as [the wife's] attorney. The Tribunal is now aware of that appointment, but for the reasons outlined above, the Tribunal is of the view that [the husband] would be faced with a conflict of interest in respect of making legal and financial decisions for [the wife] under the current circumstances.”

The Tribunal then reached its ultimate conclusion (at [171]) through paragraphs [167] – [172] of its Reasons as follows:

“[167]   In statements to the Tribunal dated 23 September 2015 and 14 November 2015 [the husband] provides detailed responses to matters raised in the documentary evidence provided to the Tribunal for the hearing conducted on 19 March 2015 and also to the matters raised in the Tribunal's Reasons for Decision on that occasion.
[168]   In her submissions, counsel for [the husband] submitted that had [the husband] been present at the hearing on 19 March 2015 the current situation would not have eventuated. The Tribunal has no way of knowing if that assertion is correct.
[169]   The current hearing is not an appeal against the decision made on 19 March 2015. It is the role of the Tribunal at this hearing to make a decision that is currently in the best interests of [the wife].

[170]   Taking all of these matters into account the Tribunal is not satisfied that if it were to revoke the appointment of the [NSW Trustee] as the financial manager it would be in the best interests of [the wife] to appoint [the husband] as the financial manager, or that there was another private person available who could be appointed as the financial manager.
[171]   Taking into account all of the evidence, the Tribunal:
(1)   Is satisfied that it is not in the best interests of [the wife] to revoke the appointment of the [NSW Trustee] as [the wife’s] financial manager, and
(2)   Is satisfied that it would not be in the best interests of [the wife] to appoint [the husband] as her financial manager if it were to revoke the appointment of the [NSW Trustee] as the financial manager.
[172]   Having reached the conclusions noted in the preceding paragraph, the Tribunal confirmed the appointment of the [NSW Trustee] as the manager the estate of [the wife].”

The Tribunal’s omnibus statements “Taking all these matters into account…” and “Taking into account all the evidence…” make it difficult, other than by looking at its findings elsewhere in the Reasons, to understand why it was satisfied that it was not in the best interest of the wife to revoke the NSW Trustee’s appointment.
The Tribunal was correct (at [168]) that it would have been an unnecessary inquiry for the Tribunal to investigate whether, had the husband been present at the 19 March 2015 hearing, the result would have been different. Generally, to establish a denial of procedural fairness it is not necessary for an applicant for relief to show that the deficiency in procedural fairness would have made a difference to the outcome: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [58] and (2015) 256 CLR 326, at 342, per Gageler and Gordon JJ.

Consideration of the Husband’s Submissions – Ground 1

The first step in the husband’s submission is his contention that he was wrongly excluded from the 19 March 2015 hearing. He submits that he had party status in the guardianship and financial management proceedings before the Tribunal on 19 March 2015, on three grounds: (1) as the spouse of the wife with a close and continuing relationship (s3F(2)(c) and s3F(5)(c)); (2) as “the person who had the care of” the wife (s3F(2)(d) and s3F(5)(d)); and with respect to the financial management orders, (3) as the holder of the wife’s enduring power of attorney that is in force (s3F(5)(e)). He argues that he was not informed of that hearing and as a result he was precluded from putting his case to the Tribunal that he should be appointed as the wife’s financial manager.
The husband makes out this first step. It is not in contest that the husband was not informed of, or present at, the 19 March 2015 hearing. Yet he qualified for party status on both the financial management and the guardianship applications being pursued that day. On the financial management application, the Tribunal found in its Reasons (at [4]) the undisputed fact that the wife had appointed the husband as her enduring attorney. He thereby automatically qualified for party status on the financial management application. That thereby entitled him to be present at the time of both applications, as they were heard together. Unfortunately the Tribunal was unaware of the grant of the enduring power of attorney to the husband: Reasons at [166].
On the guardianship application, the husband was in any event “the person who had the care of” the wife at the time of the application. He certainly had her care until 19 October 2014. The only legal basis on which he had not had access to her to continue his care for her after 19 October 2014 was the interim AVO, which did not ultimately proceed on the wife’s behalf for want of her evidence. The precise legal basis on which the various persons sheltering the wife were denying the husband access to her in the period after the dismissal of the AVO on 20 February 2015 and before the 19 March 2015 Tribunal hearing is obscure. It does not emerge from the Tribunal’s Reasons. The lack of continuing legal justification for her removal from his company was never tested, for example by a writ of habeas corpus. But in my view the continuing intervention of these persons after the dismissal of the AVO, did not disqualify the husband from being a person “who had the care of” the wife, as at the 19 March 2015 hearing. And the Tribunal took the same view, concluding on 2 October 2015 that he qualified for party status as her carer: Reasons at [13] (2).
Moreover, his status as the wife’s spouse was not in dispute. In my view he also qualified for party status on both applications on that ground. The Court’s findings on this appeal, set out elsewhere in these reasons, well justify the conclusion that the husband had a “close and continuing relationship” with the wife. Although the Tribunal concluded otherwise, in part because of the external interventions between the couple between October 2014 and March 2015.
The husband’s exclusion from the 19 March 2015 hearing denied him procedural fairness. The Tribunal acknowledged as much in the Reasons (at [13](2)). In my view this had the consequence that had the husband made an application for appropriate declaratory relief soon after the 19 March 2015 hearing, then that hearing could have been declared to be without legal foundation and to be no decision at all: Minister for Immigration v Bhardwaj [2002] HCA 11 and (2002) 209 CLR 597.
Should the husband have been given notice of the 19 March 2015 hearing? It is not strictly necessary to answer this question now. But in my view he should have been given the opportunity to argue his party status either on or before that day. It should have been clear to the Public Guardian and the NSW Trustee at least that the husband may arguably qualify for party status, as the wife’s spouse and as her carer. Had notice of the hearing been given to him it would have become quickly clear that he had indisputable party status as the holder of an enduring power of attorney. Both efficiency and fairness suggest that notice of the 19 March 2015 hearing should have been given to him.
The husband next submits that once it is accepted that the husband had been denied procedural fairness at the original 19 March 2015 hearing, then the hearing on 23 February 2016 should have been conducted differently from the way it was actually conducted.
The husband’s submission to this effect proceeded as follows. The Tribunal accepted that the 23 February 2016 hearing was not an appeal from the decision made at the 19 March 2015 hearing. This acceptance in turn means, so the husband submits, that the proper test for the Tribunal to apply to the husband’s application for appointment as the wife’s financial manager, was the test that should have been applied by the Tribunal at the 19 March 2015 hearing. Therefore on 23 February 2016 the matter should have been looked at entirely afresh.
But the husband submits, the Tribunal did not look at the matter afresh. Because of that failure, he submits that, the Tribunal’s reasons for the 23 February 2016 decision reflect a number of related errors of principle. It is well established that the Tribunal may err in law if it applies an incorrect principle: C v W [2015] NSWSC 1774, Lindsay J at [49]. The husband’s submissions elaborated upon the various alleged errors as follows:

The correct test should have been, but was not, applied to the husband’s application to change the financial manager was the same test that would be applied to determine who should initially have been appointed as financial manager;

The Tribunal was required to take into account Guardianship Act, s 4(e), the importance of preserving family relationships but did not do so;

The Tribunal should have reasoned on the basis that the husband bore no forensic onus to vary the financial management order, to change the financial manager but in substance assumed the husband did have a forensic onus; and

The Tribunal should have applied, but did not apply, the principle that the appointment of the NSW Trustee to a relatively small estate ($1 million or less) is a last resort.

The husband’s elaboration upon each of his four submissions follows.
(1) Apply the same Test as upon an Initial Appointment. The husband agrees with the Tribunal that the dominant consideration should be the welfare of the wife, as she is the subject of the financial management order. But the husband contends that the Tribunal did not properly consider his case in relation to this issue. The husband argues that a family member should have been appointed, as such a person would have a lifetime of knowledge of the wife and a natural devotion to her interests: Holt v Protective Commissioner (1993) 31 NSWLR 227 (“Holt”’); EB v Guardianship Tribunal [2011] NSWSC 767 (“EB”), per Hallen AsJ at [141]. He further contends that there are inherent advantages in having a family member act as a financial manager where an estate is relatively modest, where there exists no conflict of interest or duty, where there is a relationship of love and affection between the manager and managed (P9/2000 [2011] NSWSC 49 at [21]-[24], EB, per Hallen AsJ at [142]); and where that family member has an understanding of the need to act protectively in relation to the estate and has a strong knowledge of the estate to be managed: EB at [146] and JAB [2010] WASAT 97 at [71] - [72]. The husband also argues that where the Public Guardian is appointed but on balance it is in the interests of the beneficiary that some other suitable person is appointed, the Court is duty bound to appoint that other person: Holt at 239; EB at [145].
(2) Guardianship Act, s 4(e). The husband submits that the Tribunal should have taken into account the “mandatory consideration” of the importance of preserving family relationships in making its decision: Guardianship Act, s 4(e). But he submits this is not part of the Tribunal’s reasoning.
(3) The Husband Bears No Forensic Onus. The husband submits that on the facts of this case the Tribunal should have reasoned that the husband bore no forensic onus regarding his application to vary the wife’s financial management order. To explain the difference in approach that is required, the husband cites M v M [2013] NSWSC 1495 at [50(l)], in which it was noted that “a decision about whether a manager should be replaced may need to be approached differently from one made about the identity of an appointment as an initial manager because of a perceived need to identify an acceptable reason [for the replacement]… depending on the facts of the particular case this may, but will not necessarily, involve recognition that an applicant for change bears, at least, a forensic onus to establish a case for change”.
(4) NSW Trustee the Manager of Last Resort. The husband submits that the Tribunal should have applied the principle that the appointment of the NSW Trustee to manage the wife’s estate, given its relatively small size, should be a measure of last resort: Re X [2016] NSWSC 275, Lindsay J at [32].
The husband’s submissions state the law correctly. The Tribunal was obliged to apply these principles. The question is whether it failed to do so, and if so, what were the consequences of that failure.
The Tribunal’s observation (Reasons at [169]) that the February 2016 hearing “is not an appeal against the decision made on 19 March 2015”, should not be to quickly construe as the Tribunal expressly declaring that its powers to deal with the husband’s application for review of the 19 March 2015 financial management order were limited in a way that might not have been limited on an appeal from that order. In its thorough Reasons the Tribunal seems really to have been making the unexceptional observations: that on the review it had to apply the ss 25P(2)(b) and 25U(4)(b) “best interests of the protected person” test, in deciding whether to revoke the existing order or to revoke the appointment of the appointed financial manager, the NSW Trustee; and that a similar “best interests” test applied under s 25G(c) to the making of original financial management order.
But the Tribunal’s reasoning (at [132] and [170]) shows that whilst applying the “best interests of the protected person” test, it posed to itself and then answered the question: whether the existing orders should be revoked. Was the Tribunal right to analyse its task as one to decide whether or not “to revoke” the existing financial management order and the existing appointment of the NSW Trustee?
The Tribunal’s comment that the 23 February 2016 hearing “is not an appeal” against the 19 March 2015 decision, together with the Tribunal posing the question to be answered as one of revocation or not, does indicate that the Tribunal was treating the 19 March 2015 decision as valid. Indeed the balance of its reasoning shows that it was taking this approach. The undoubted denial of procedural fairness to the husband leading to the jurisdictional error in the Tribunal’s making of the 19 March 2015 decision means that on appeal from that decision it would be treated as no decision. But, the Tribunal should have treated the 19 March 2015 decision as in substance no decision at all and constructed its reasoning accordingly, and differently, from the way that it did.
Administrative lawyers have long had to grapple with the problem of how to treat administrative decisions that involved jurisdictional error before those decisions are actually set aside by a Court. The Tribunal was here confronted with just this problem. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, at 420, Jordan CJ stated that a constructive failure to exercise jurisdiction left “the jurisdiction in law constructively unexercised”: see also Posner v Collector for Interstate Destitute Persons (Vict) (1946) 74 CLR 461 at 483 per Dixon J; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 483 per Gibbs J; and Re Coldham; Ex Parte Brideson (1989) 166 CLR 338 at 349-350 per Wilson, Deane and Gaudron JJ.
In 2002 the High Court re-stated the applicable law in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (at 614-616); [2002] HCA 11 at [51] - [53] as follows:

“Decisions involving jurisdictional error: the general law
[51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition.
[52] The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862, Sopinka J, with whom Dickson CJ and Wilson J concurred, said:
"As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ...
To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law."
In the same case, his Lordship cited with approval a statement by McLachlin J that:
"as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision".

[53] In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act.”

Here, in my view, the Tribunal should have expressly stated that the 19 March 2015 decision was in substance no decision and then clearly reasoned on the basis that the task for the Tribunal was now to discharge a duty to make a decision whether or not to appoint a financial manager for the wife, which duty that at that point remained unperformed.
In my view this conclusion is not altered by the fact that the 19 March 2015 decision had been continued by another decision on 3 December 2015: this later decision also assumed the validity of the original decision.
It does not make any difference to this analysis that this present proceeding is not an appeal from the original 19 March 2015 decision. This Court has the full range of powers to do justice between these parties and if necessary to make a declaration as to a denial of procedural fairness in respect of the 19 March 2015 decision. But the Tribunal itself had the practical power under Guardianship Act, ss 25 and 25C, for example, to treat the 19 March order as suspended, for example, and then proceed to make a decision for the first time. That the Tribunal posed itself a question couched in the language of revocation does not necessarily indicate error of principle. But such error would be shown were the Tribunal not to clearly recognise that it was now making the decision for the first time, because the duty to make that decision remained in substance unexercised. In my view the Tribunal did indeed fail to do this.
It is not necessary further to consider at this point all of the husband’s above four arguments, beyond the conclusions already drawn. What decision that should have been made had the Tribunal applied the same test, as if upon his initial appointment, need not be considered. But this Court upon the re-hearing on this appeal does consider the application of the initial appointment test later in these reasons. There, issues such as whether the NSW Trustee was a manager of last resort or whether family members should be appointed who have strong knowledge of the estate to be managed are considered. All that need be concluded at this point is that the husband’s argument is correct because the 19 March 2015 decision was in substance no decision. The warning in M v M [2013] NSWSC 1495 (at [50(i)]) was apposite: the Tribunal needed to be careful to approach the question of appointment of the wife’s financial manager, as if it were appointing an initial manager rather than contemplating the replacement of an existing manager. Nowhere in its Reasons did the Tribunal do this and in my view it therefore fell into error and its decision should be set aside.

As to the wife’s incapacity, the husband submits that her statements cannot be relied upon. He grounds his submission on several matters. The wife’s hospital record of 4 December 2014 observed “asphasic communication … will answer ‘no’ when she means ‘yes’ and ‘yes’ when she means ‘no’”. In July 2015, the clinical neuropsychologist, Ms K, examined the wife at the request of Ms Kemp, an assessment “prompted by the inconsistency of her responses to questions about whom she would/would not like to visit her”. That report concluded that “[the wife’s] statements cannot be relied on to provide an accurate indication of her thoughts”.
As to the way that the questions were asked, the husband submits that Ms Kemp “asked closed questions, not open ones, didn’t explain the background to the issue, that there had to be a guardian, et cetera”. The husband also complains that Ms Kemp “did not involve the separate representative in this meeting or in this questioning”.
The husband further submitted that, in light of the appointment of Mr Burwood as the separate representative for the wife due to her lack of capacity, the views of Mr Burwood “should have been taken into account by the Tribunal, or at least given some priority, given that they also have the additional component of representing what the separate representative thinks is in [the wife’s] best interests”.
The husband submits that the Tribunal should have found that this factor of the wife’s presumed rejection of the husband as her guardian, was a neutral factor and should not have been weighted against the husband.

Consideration – Ground 6

The husband’s submissions are persuasive. The Tribunal could not rationally have inferred that the wife had rejected the husband as her possible guardian, without also expressly rejecting the professional views of Ms K about the wife, “I believe that [the wife’s] statements cannot be relied upon to provide an accurate indication of her thoughts”. If Ms K’s evidence were accepted, no inference can be drawn about the wife’s wishes in relation to her guardianship. The problem with the Tribunal’s reasoning is that in [123] it expressly relies upon the wife’s “rejection of him as a possible guardian when that was raised with her”. That conclusion clearly assumes that the wife’s statements are a reliable indication of her thoughts. Without expressly rejecting Ms K’s evidence that inference is not rationally available. All the more so in this case where the hospital records show many instances of the wife saying “yes” when she means “no” and “no” when she means “yes”, particularly in response to closed questions, as was demonstrated in the hospital notes on 4 December 2014.
This is not a case of there being no evidence on which the Tribunal could act to infer the wife’s rejection. What Ms Kemp said clearly was some evidence. But with the wife proven to be suffering from aphasia, the Tribunal had to expressly deal with the issue of how Ms Kemp or the Tribunal could draw any such inference from an aphasic patient, before giving any weight to Ms Kemp’s evidence. The Tribunal did not do so. This falls into the category of case in my view that no reasonable decision maker would have draw the same factual inference or conclusion from such underlying evidence: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, at [625], [643] and [648]. In my view this ground is made out and the guardianship order should be set aside on this ground. It is not necessary to consider the husband’s submissions about Ms Kemp’s closed questions.

Ground 7 – (Amended Summons, Prayer for Relief 24) the Tribunal drew the wrong inference of fact and/or misdirected itself in law, when it found that the Husband did not have a personality compatible with the Wife

Guardianship Act, s 17(1)(a) provides that a person shall not be appointed as a guardian unless the Tribunal is satisfied that “the personality of the proposed guardian is generally compatible with that of the person under guardianship”.
The Tribunal held that it was “not able to reach a positive finding” that the husband “has a personality that is generally compatible with that of his wife ”: Reasons at [123]. The Tribunal noted that in coming to this view, it took into consideration “the current circumstances, including the wife’s previously expressed views about contact with her husband, her rejection of him as a possible guardian when that was raised, her current advanced dementia and observations about the visits expressed by [Mr W], [Ms D] and [the husband]”: Reasons at [123].
The husband contends that the Tribunal erred in coming to this conclusion.

The Husband’s Submissions – Ground 7

In addition to the matters the husband advances under Ground 6, he submits that the Tribunal should not have given any weight to the evidence of Ms D for the reasons noted in Grounds 4-5. The husband also submitted that the Tribunal should not have “taken into account” the evidence of Mr W or considered it as “overriding or qualifying the views of Mr Burwood”.

Consideration – Ground 7

Any assessment of the question of whether the husband “has a personality that is generally compatible with that of [the wife]” in this case must start with the undisputed history of this couple: the husband and wife had a 32 year relationship in which there is no evidence that either of them sought to separate or divorce; they had lived together, conducted businesses together, bought property together and travelled together. A powerful inference of their compatibility arises from this history. Clear findings and reasons would be required in the Tribunal’s Reasons to displace this inference.
But paragraph [123] is a balancing exercise. Subject to this Court’s conclusion in relation to Ground 6 about the wife’s rejection of the husband as a possible guardian based on Ms Kemp’s views, the balance of paragraph [123] represents, in my view, a conventional weighing of evidence that was available to the Tribunal. The paragraph mentions the long relationship and then weighs some material against it, namely the views of Mr W and Ms D.
In the next section of these reasons, upon the new hearing, this Court reaches a different view, to that taken by the Tribunal. But it is not clear that the Tribunal erred in the relative weights that it gave to the evidence in reaching its conclusion. This result on Ground 7 is of course subject to the problem identified in Ground 6, which vitiates for other reasons the conclusion of personality incompatibility.

Action on Review of the Guardianship Order

This Court has already decided to deal with this appeal by way of a new hearing, both with respect to the financial management orders and the guardianship orders: NCAT Act, Schedule 6, clause 14(3). The Court may now make such orders as it considers appropriate in light of its decision on the appeal, including to confirm, affirm, vary, quash, set aside existing orders or to substitute another decision for the decision under appeal, or to review part of the case for reconsideration by the Tribunal: NCAT Act, Schedule 6, clause 14(4).
As is the position in relation to the financial management orders, it is not appropriate to remit the Tribunal any of this case for reconsideration. The reasons for this are much the same with respect to the guardianship orders as they were with the financial management orders. First, time is critical; the wife’s dementia is progressing, re-establishing such relationship she can with her husband with the assistance of his more frequent visitation is highly desirable. Leaving the current orders in place until a fresh Tribunal hearing in my view would not be in the wife’s best interests. Secondly, this Court has had the benefit of extensive evidence on appeal about the husband’s and wife’s financial affairs and personal history and has been able to examine the transcript of the important 23 February 2016 hearing before the Tribunal. Thirdly, it is important for this Court, now that it is seized with the detail of this matter to completely rectify the consequences of the denial of procedural fairness to the husband which occurred at the outset of this proceeding before the Tribunal. The analysis of the various grounds of appeal above shows that the consequences of an initial denial of procedural fairness to him were never fully resolved by the Tribunal. This Court can resolve them now by making the decision in the Tribunal’s place.
The Tribunal, and now this Court on appeal, is entitled to refuse to review a guardianship order, if in the opinion of the Tribunal (or the Court) the request does not disclose grounds that warrant a review: Guardianship Act, s 25A. The evidence adduced on this review in my opinion discloses ample grounds warranting a review. The errors of law that have been identified require correction.
The Tribunal, and now this Court, can vary, suspend, revoke, or renew or vary the guardianship order already in place: Guardianship Act, s 25C. It is convenient to deal briefly with the issue of revocation or suspension first.
The husband’s evidence on this review, including his fresh evidence, must now be considered. It throws a different light both upon both the initial events the subject of the Tribunal’s orders and explains the developments which have occurred since the Tribunal’s February 2016 hearing.
There is no basis either to revoke or to suspend the guardianship order. Both the medical and lay evidence strongly suggests that the wife’s mental capability has continued to deteriorate, since she has entered the local aged care facility. A continuing guardianship order is required for her. The remaining issue on this appeal is whether the Public Guardian should continue in the role as the wife’s guardian or whether the husband should now be appointed to that role.
That decision must be taken under the direction of the Guardianship Act’s several commands, some positive and some negative. The positive statutory commands in Guardianship Act, s 4(a) to (g) require the Court to observe the seven principles identified earlier in these reasons, when it exercises functions under the Guardianship Act in relation to persons under guardianship.
The Court will deal with the questions in this section of the appeal by reference to such of these seven principles as are applicable. Not all these principles have immediate relevance to the guardianship orders in this case. The statutory order of these principles is not significant and a slightly different logical order is followed here.
The Court must also consider the statutory prohibitions under Guardianship Act, s 17 on the appointments of certain guardians. A person should not be appointed as a guardian, unless the Tribunal is satisfied of: (a) the compatibility of the personality of the proposed guardian with the person under guardianship; (b) the absence of undue conflict of interest between the two; and, (c) the willingness of the proposed guardian to exercise the relevant functions. The provisions of Guardianship Act, s 17 are set out earlier in these reasons. The Court’s reasons dealing with the various grounds of appeal already show that the Court is satisfied that these statutory prohibitions do not prevent the husband’s appointment as guardian: see Grounds 1 and 7.
(a) The Wife’s Welfare/Interests and (g) Protection from Abuse or Neglect. Does the appointment of the husband as the wife’s guardian, or the confirmation of the Public Guardian in that role, best promote the wife’s welfare and interests? The Court would not consider appointing the husband as the wife’s guardian: (1) if there appeared to be any risk of harm to her welfare or interests through his appointment; and (2) if in all the circumstances confirmation of the appointment of the Public Guardian was more consistent with the wife’s welfare and interests than the substitution of the husband as appointee.
The most important sub-issue here is whether the husband now represents any risk of injury to the wife. This issue requires some analysis of the evidence of the events of October 2014 and of the husband and wife’s relationship since then.
A number of factors support the husband’s account that he was not responsible for his wife’s injuries on 19 October 2014. And there is no other evidence he engaged in domestic violence towards her on any other occasion. No evidence suggests the local hospital has recorded any other assault-related admissions for her. All the couple’s acquaintances say in evidence that domestic violence is completely inconsistent with the relationship between the couple. The deep entwinement of the couple’s successful financial affairs through the conduct of a general store business and the development of properties, which could only have been achieved by long-term high level co-operative behaviour that is hardly consistent with a relationship characterised by periodic episodes of violence and the distrust and resentment consequence upon such behaviour. The couple were continuing to buy and develop such properties right up until the wife’s admission to the local hospital. Their shared future plans to travel together around Australia, and possible move to the North Coast, are not readily consistent with such a conclusion. Moreover, it seems generally improbable that a man in his mid-60s would suddenly commence being violent to his wife, when there was no past indications of such misconduct. Interestingly neither of the husband’s critics, the wife’s sister and Ms N, accuses him of domestic violence before November 2014.
The husband has denied any domestic violence towards the wife on the night in question or at any other time. He has said he abhors such conduct. The allegations of domestic violence have never been put to him in cross-examination in the proceedings before the Tribunal or this Court and answered. But his statements and sworn evidence before this court clearly denies such conduct. In the absence of any challenge to them, his denials are material of very considerable weight for this Court to take into account in his favour. The denials may be discounted if there were strong objective or other persuasive evidence to the contrary. But there is not.
The depth and quality of the husband’s evidence on this appeal tells its own story. The husband has given a number of detailed statements about his relationship with the wife, the history of their married life and their financial affairs. Not only do these statements include a satisfactory account of the personal and financial relationship of the couple, but they deal in more than sufficient detail about every allegation which has been raised against the husband by anyone in the course of the various Tribunal hearings.
The fact that these statements have been prepared in the form and detail that they have been, says much about the husband’s openness in accounting for his financial and personal behaviour and his commitment toward the wife. Although their content is far more important than their volume, the volume of the evidentiary material is not inconsiderable and shows the husband’s desire to give the fullest possible account of himself. The husband’s first statement of September 2015 is 55 pages and 256 paragraphs with annexures. The husband’s second statement of 14 November 2015, produced in anticipation of the hearing on 3 December 2015, is some 21 pages and 71 paragraphs with annexures. The husband’s updating statement of 3 December 2015 covers visits that the husband made in more recent times to the wife in November and December 2015 just before the 3 December 2015 hearing and is 17 pages and some 88 paragraphs with annexures. Before the 23 February 2016 Tribunal hearing the husband filed another substantial statement dated that day and of some 30 pages and 130 paragraphs with annexures. Finally the husband filed a further updating affidavit for these appeal proceedings sworn on 15 August 2016 of some 4 pages and 15 paragraphs.
The passage of time since the Tribunal’s hearing on 23 February 2016 presents the Court with different evidence about the husband from that the Tribunal considered. Prominent features of this evidence are the husband’s continuing regular weekly visits to the wife at the local aged care facility (26 visits since the Tribunal’s hearing) and his consistent personal and physical support for the wife based upon his demonstrably close concern for her welfare, using information that could only have been acquired through attentiveness during his regular visits to her.
Until the Court made orders on 21 December 2016 varying the Tribunal’s orders, all of the husband’s visits were required to be undertaken under supervision. Ms D, the supervisor of the husband’s visits to the wife under the Court’s previous orders, has not been advanced as a witness to dispute that any of the post-February 2016 visits have gone well. Nor has she been called to give evidence to promote a case that the husband’s personality has not proved throughout his visits to be compatible with that of the wife. The Public Guardian’s submitting appearance and failure to adduce evidence from Ms D assists the Court to infer that there is no continuing concern about the wife’s welfare from these visits.
The primary allegations of domestic violence came from the wife in the course of an interview with Dr H on 20 October 2014, the day after her admission. But there is considerable dissonant evidence (of which the wife is the only likely source) countering her 20 October allegations, both in the hospital notes and other objective materials. This contradictory information appears both before and after the wife’s statements to Dr H on 20 October. For example the hospital notes record that on 21 October 2014 she stated she fell at home. On 22 October 2014 she spontaneously expressed to nursing staff that she wanted to call her husband. On 21 or 22 October in an interview with a social worker she “reiterated her story of falling onto a table and her husband [the husband] finding her”. On the same date she denied that [the husband] had hurt her” and explained “that she had been drinking before the accident”. This is consistent with his account that she had been drinking significant quantities of alcohol before the accident.
The witness evidence provides a powerful counterweight to any inference of domestic violence against the husband. Evidence from the couple’s friends is compelling. The Court has made extensive findings based on the evidence of the wife’s and the husband’s friends. As late as December 2015 the wife still recognised these friends, did not want them to leave the facility, and was asking them about when the husband would next visit.
The husband’s case includes a considerable number of statutory declarations of evidence from long-standing friends and relatives about his good relationship with the wife. In addition to his evidence, these statutory declarations bespeak a relationship between this couple that was harmonious, co-operative and loving, and without any hint of domestic trouble, let alone domestic violence before October 2014. The picture presented is far distant from the bare facts previously alleged against the husband. These are some of the people who the wife recognised at the local aged care facility and to whom she has addressed questions about the husband visiting her. The following paragraphs contain a brief summary of the effect of their evidence, all of which the Court accepts. This evidence is so extensive that is not possible to provide anything other than a short summary of it. None of these witnesses can be named but their role in the couple’s life can be mentioned. Collectively their evidence weighs heavily in the husband’s favour. It was before the Tribunal but the Tribunal did not mention it in the Reasons.
The statutory declarations expound a number of themes: the strong affection between the husband and the wife and the lack of any domestic discord between them; the wife’s growing dementia and her capacity to wander and bump into things and become bruised as a result; the growing influence over the wife of Ms N as the wife’s dementia developed; their willingness to visit the wife; and the wife’s desire to see the husband after October 2014. A few examples will suffice.

A business owner in the local area, who has known the couple for almost 20 years and is a close friend, describes their relationship as “loving and caring”. He says the wife’s dementia was growing in 2013 and she had been drinking heavily as a result and that she had even had a car accident. After October 2014 she said to this witness that she wanted “to stop the AVO”.
One former employee at their general store business developed a close relationship with the couple. She witnessed nothing other than happiness in the relationship between husband and wife. But she was well aware that the wife bruised easily because this witness did as well. She would welcome any opportunity to visit the wife if it were permitted. She observed Ms N start to take control of the wife’s society and steer her away from other people in the local community.
Another witness was a customer in the shop and a casual employee. She observed that the wife did drink alcohol regularly. She observed Ms N to be quite manipulative and possessive with the wife. She would like to visit wife if she could.
Another customer and close family friend of 17 years had never heard the husband raise his voice against the wife. This friend has observed the wife bumping into objects in the shop and that she bruised easily as a result. Again this witness observed Ms N’s possessiveness over the wife. This witness would wish to see the wife if it were permitted.
Two other members of the local community had managed to see the wife in the hospital. Both these women attest to the very close relationship between this husband and wife and that they were very much in love. They both happened to see the wife in a section of the hospital where she was isolated from the husband. The wife asked both of them for the husband.
Yet another friend had seen wife in hospital and the wife had been distressed that the friend was required to leave and the wife clearly intimated to her that the wife wanted more company from her friends.
Both the husband’s biological daughter and the sister of the husband’s first wife attest to the good quality of the couple’s relationship, the fact that the wife was starting to drink heavily in mid-2014 and that she bruised easily. The husband’s biological daughter attests to the excellent relationship between the wife and the biological daughter’s six children, who the wife likes to see and the biological daughter would arrange for the wife to see them if she were permitted to do so.
(d) The Views of the Wife in Relation to Guardianship functions. For the same reason that the Court has found unreliable the views of the wife about whether any domestic violence occurred between the husband and the wife, the medical evidence is a sound basis to infer that the wife cannot express reliable and consistent views about how the functions of guardianship should be exercised in relation to her. The Court has found that the questions asked of her about her preferences in relation to her guardianship were not likely to elicit reliable responses from her, as they did not offer her a full range of choices. But the medical evidence raises the concern that whatever range of choices about guardianship was given to the wife, her verbalised answers would always be a poor guide to her views.
But the principles in Guardianship Act, s 4(d) still have a role to play in this case. The wife has continued to receive the husband’s weekly supervised visits. Since his visits commenced the protocol has been that she is always asked at the end of each visit by Ms D whether she wants to see the husband again. The visits have continued up until the hearing. The wife’s consistent consent to the acceptance of weekly visits by the husband, without rejecting future visits, is probably the most reliable available indicator of her “views” that can now be gained. It points to her fundamental comfort with his presence. Not only has he been present for her on a weekly basis but he has been using the weekly visit to ascertain her personal needs and to ensure that she has proper fitting underwear and presentable clothing reflecting her longer term preferences. This history supports the inference that her own views are compatible with his continued management of issues relating to her personal dignity and daily living.
The “views of a person under guardianship” can be monitored in yet another way. The sworn evidence of the couple’s friends shows several examples of the wife’s unprompted expression of her desire for the husband’s company throughout 2015. The Court must of course be cautious from the medical evidence, such as that of the clinical neuropsychologist, Ms K, about the quality and reliability of the wife’s expressions of her choices, because of her advancing dementia. Despite her illness, the wife’s spontaneous recognition of friends, followed by her asking for her husband, must be given weight: the wife’s recognition of her friends seems, to have triggered surviving recollections of her husband and followed by an immediate response of her asking for his company.
(e) Preserving Family Relationships. In this case, the s 4(e) principle of preserving family relationships has important status. The husband’s relationship with the wife is a prime example of a “family relationship” of the wife. The Court has a duty to recognise the importance of preserving such family relationships: Guardianship Act s 4 (e). The wife’s principal proven family relationships are with and through the husband. The wife has step-children (the husband’s children by an earlier marriage) and step-grandchildren, through them, here in Australia. She also has a sister in New Zealand. But the evidence of any regular pre-October 2014 face-to-face contact between the wife and her sister in New Zealand is not strong. There is evidence before this Court from the social worker’s records of the sister in New Zealand not having the practical capacity in her household to be able to accommodate the wife for a visit at the sister’s home in New Zealand over Christmas 2014 due to space limitations and other competing family requirements for the space.
Continuation of the regime of supervised access is a major impediment to the preservation and fostering of the wife’s relationships with her family. The Public Guardian has declined to increase the amount of contact that the husband can have with the wife beyond one visit per week. The Public Guardian says that the supervisor for these visits, Ms D, is only available once a week and that to introduce another stranger to the wife as a visit supervisor would not be in the wife’s best interests. The Public Guardian’s logic is acceptable whilst the current supervised access and guardianship orders are in place. There is evidence that the introduction of strangers to the local aged care facility troubles the wife. But the real question is whether supervised access is necessary any longer. In my view it is not.
(c) Living a Normal Life in the Community. The current orders for supervised access to the wife are no longer necessary. The husband is not a stranger. He can and wants to see her more frequently. Moreover, current orders inhibit visits by other friends and family members. Many of these people are not strangers to the wife, as she has recently recognised some of them. They should not present any anxiety for the wife. They can and want to visit her.
Supervision of the husband’s visits to the wife should be ended. The need for supervision of his visits has long since disappeared. The wife can best have the benefit of the husband’s companionship and the support of family and friends if he is given unrestricted access rights to her and the right to decide the access of others. Showing his insight and objectivity, the husband has said he does not seek to exclude his apparent detractors, Ms N, Ms R and the wife’s sister, from access to the wife. The current arrangements have become an unnecessary encumbrance upon the wife having the benefit of her husband’s company.
The wife is always likely to need the supportive environment of an aged care facility. Her mixing in the general community is not a likely future scenario. But engaging with the friends that she does have in the wider community has force as giving effect to a statutory principle under the Guardianship Act. These friends have not been able to see her under the current guardianship orders. The careful admission of some of these friends back into her regular circle by someone, such as the husband, who knows her and them all does not appear to have any obvious risk to her welfare or interests; giving her the opportunity of such visits points to a need for a more flexble decision-making regime for access to her.
(b) Freedom of Decision and Action and (f) Self-Reliance. The Court agrees with the Tribunal that the guardianship order should remain in place. This order constrains the wife’s freedom of action and decision-making to a high degree. But it is in her best interests.
Indeed one other constraint is in her best interests. As these reasons show, the Court will revoke the appointment of the Public Guardian and appoint the husband as the wife’s guardian. But it is too soon for the husband to have the capacity to move the wife out of the State, to Queensland where he suggests in his evidence that he wished to take her in the future. Such a move would be incompatible with many of the other principles which the Court is required to consider under Guardianship Act, s 4. Importantly such a move, without medical evidence in advance, may be inimical to her welfare and interests. She can readily engage with her acquaintances who come to visit her here at the local aged care facility. And if more distant family members wished to see her, they could travel to visit her while these orders are bedded down.

The Husband or the Public Guardian?

Were he to be appointed as guardian the husband could provide a number of benefits to the wife that she does not presently enjoy, especially through flexible and potentially enriching access arrangements for the wife. If the husband himself sees the wife more often (and he can more readily do so without supervision), she will have much more of his company, for which on evidence she has long been asking. The Court has no concern about her welfare from unsupervised visits from the husband, who has been looking after her personal care and personal grooming for some time.
Moreover, the wide and supportive network of people in the local area, who are well known to the wife, have offered to come and visit her. Whether or not they can be of assistance is a matter which can best be assessed flexibly by someone, such as the husband, who knows the wife and knows them and who in consultation with the local aged care facility is able to decide what future access they should have to the wife.

The Term of Any Guardianship Order

What should be the term of any future guardianship order? A further period of stability is needed in the wife’s best interests. All parties to these proceedings need to assess and make the necessary adjustments to the changes which are given effect by the orders now being made. There should be a period of further stability which should be not less than 24 months from the date of the Court’s orders, on 21 December 2016. The end of term review under Guardianship Act, s 25(2)(b) and (3) will take place at about that time. No order countermanding the requirement for an end of term review will be made under Guardianship Act, s 25(3)(b).
During that period of 24 months it is expected that: (1) the husband will have an opportunity to see the wife at the aged care facility as often as he likes; (2) the husband, as guardian, will have an opportunity to reintroduce the wife to some of the friends she had known in the local area for many years and whom she may still recognise as friendly faces;(3) the wife’s local doctor and the nursing and ancillary staff in the aged care facility will have the opportunity of assessing the wife’s progress under her husband’s guardianship; and, (4) the Tribunal will have an opportunity at the end of term review to assess the operation of the revised arrangements.
The husband may encounter uncertainty about the administration of these new orders. Were that to occur, with the assistance of his legal advisers, the husband could apply to the Tribunal for directions under Guardianship Act Part 4, s 28.

Conclusion and Orders

The Court made the orders below in this matter on 21 December 2016. The Court indicated at that time that it would deliver its reasons for those orders at a later date. The Court’s reasons were provided to the parties on 27 February 2017.
Accordingly, the Court makes the following orders and directions on 21 December 2016:

Order pursuant to clause 14(3) of Schedule 6 of the NCAT Act that this appeal will be dealt with by way of a new hearing with all evidence adduced at the hearing of these proceedings on 19 August 2016 being evidence on that new hearing.

Order pursuant to clause 14(4) of Schedule 6 of the NCAT Act that the appeal in the husband’s Amended Amended Summons commencing the appeal, filed on 19 August 2016 be allowed.

Order that the decision under appeal (being the orders made by the Fourth Defendant, the Civil and Administrative Tribunal (“the Tribunal”) on 23 February 2016 and the statement of reasons issued by the Tribunal and given to the husband on 3 May 2016 be quashed and another decision be substituted for such decision.

Upon the conclusion of the new hearing ordered pursuant to Order 1 hereof, the Court now substitutes for the decision of the Tribunal quashed pursuant to Order 3 the decision that:

the husband be appointed under the Guardianship Act 1987 as the guardian under the existing guardianship order of the wife, in place of the First Defendant, the Public Guardian and in his said capacity as guardian the husband is ordered for a period of at least 12 months or the next review of the existing guardianship orders, whichever is the earlier, not to remove or seek to remove the wife from outside State of New South Wales; and

the husband be appointed under the Guardianship Act as the financial manager of his wife’s estate under the existing financial management orders in respect of her estate in place of the Second Defendant, the New South Wales Trustee and Guardian and in that capacity the husband is ordered to take prompt and reasonable steps to sell such of the estate properties as are necessary by applying the proceeds thereof to pay down to zero the accommodation bond for the wife’s present nursing home accommodation.

Direct that the husband provide a copy of these orders to the Public Guardian, the NSW Trustee and Guardian and the Tribunal by 4pm on Thursday 22 December 2016.

Grant leave to each of the husband, the Public Guardian and the NSW Trustee and Guardian, to apply by motion up until Friday 3 February 2017 in relation to the implementation of these orders and as to whether any adjustment is necessary to the final form of the orders.

The Court makes no order as to costs, to the intent that each party shall bear his and its own costs of these proceedings.

Before the delivery of these reasons, the Court extended the date in Order (6) of the orders made on 21 December 2016 to 27 February 2017. But these reasons delivered on 27 February 2017 also indicate that it may become necessary to add an overall time limit of two years to the time periods specified in order (4) above. The Court now makes the following supplementary orders for the following reasons.
In his affidavit of 16 August 2016 the husband offered to “take any other steps that the Court thinks necessary in order to protect the interests of [the wife]”. In light of the Court’s full reasons the husband, and indeed other parties, may wish to put submissions about what other steps should be taken to protect the interests of the wife prior to the next review. The Court has already made some orders on 21 December but there may be others that these reasons indicate should be made. For example more specific guardianship orders may need to be made dealing with the wife’s health and medical care, services and accommodation over the next two years. Liberty to apply will be granted for that purpose.
For example, it may be thought that periodic financial reports to NSW Trustee may be useful. Directions may be made under the NSW Trustee and Guardian Act to achieve this.
But in order to bring these matters to finality as quickly as possible the Court will grant liberty to the parties to approach the Court at any time in the next three days in order to make supplementary orders.
The Court’s orders today therefore are:

Grant liberty to apply in relation to the implementation of and any adjustments to the Court’s orders of 21 December 2016:

The parties are requested to make use of the liberty to apply provided for in order (1) if possible on 27 February, 28 February or 1 March 2017 and may contact my associate to arrange a suitable time for the matter to be mentioned.

Direct the plaintiff to notify relevant persons within the NSW trustee and Public Guardian of these orders.

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Decision last updated: 07 March 2017

Medium Neutral Citation:	The Husband v The Public Guardian [2016] NSWSC 1720
Hearing dates:	19 August 2016
Date of orders:	21 December 2016
Decision date:	21 December 2016
Jurisdiction:	Equity
Before:	Slattery J
Decision:	Appeal allowed. Decisions of the Civil and Administrative Tribunal dated 23 February 2016 quashed. Plaintiff appointed guardian and financial manager for his wife, the third defendant in the place of the Public Guardian and the NSW Trustee and Guardian respectively.
Catchwords:	GUARDIANSHIP AND FINANCIAL MANAGEMENT – Plaintiff/husband seeks judicial review of orders of the Guardianship Tribunal of the Civil and Administrative Tribunal – Tribunal dismissed the Plaintiff’s application to act as his wife’s (the third defendant) financial manager and guardian – Tribunal instead confirmed the appointment of the NSW Trustee and Guardian as financial manager and the Public Guardian as the guardian of his wife – the third defendant suffers from frontal lobe dementia, and currently lacks legal capacity – shortly before guardianship order, the third defendant made allegations against the Plaintiff that he had physically abused her - whether the Tribunal’s decision should be quashed – if the Tribunal’s decision is quashed, whether the Court should appoint the Plaintiff as the third defendant’s guardian and financial manager or should leave the Public Guardian and the NSW Trustee and Guardian acting in those roles.
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Family Law Act 1975 (Cth) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR 635 Blatch v Archer [1774] 98 ER 969 C v W [2015] NSWSC 1774 EB v Guardianship Tribunal [2011] NSWSC 767 Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 IR v AR [2015] NSWSC 1187 JAB [2010] WASAT 97 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 M v M [2013] NSWSC 1495 Minister for Immigration& Citizenship v SZMDS [2010] 240 CLR 611 Minister for Immigration and Border Protection v WZARH [2015] HCA 40 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 P9/2000 [2011] NSWSC 49 Posner v Collector for Interstate Destitute Persons (Vict) (1946) 74 CLR 461 Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 Re Coldham; Ex Parte Brideson (1989) 166 CLR 338 Re L [2000] NSWSC 721 Re R [2000] NSWSC 886 Re X [2016] NSWSC 275 Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Texts Cited:	New South Wales Civil and Administrative Tribunal, Practice Direction 2
Category:	Principal judgment
Parties:	Plaintiff: [not published] First Defendant: the Public Guardian Second Defendant: the NSW Trustee and Guardian Third Defendant: [not published] Fourth Defendant: NSW Civil and Administrative Tribunal
Representation:	Counsel Plaintiff: Ms J.A. Soars Defendants: submitting appearance Solicitor Plaintiff: Mr R. Kent, Kent Attorneys Defendants: submitting appearance
File Number(s):	2016/163148
Publication restriction:	No