THE PUBLIC TRUSTEE and KD - [2021] WASAT 87

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)
CITATION:   THE PUBLIC TRUSTEE and KD [2021] WASAT 87
MEMBER:   JUDGE D R PARRY, DEPUTY PRESIDENT
MS F CHILD, MEMBER
DR J CAUNT, SESSIONAL MEMBER

HEARD:   28 MAY 2021
DELIVERED          :   28 MAY 2021
PUBLISHED           :   18 JUNE 2021
FILE NO/S:   GAA 448 of 2021

THE PUBLIC TRUSTEE
Applicant
KD
Proposed represented person

Catchwords:

Administration - Practice and procedure - Extension of time in which to apply for review by Full Tribunal of determination of single member - Principles - Review by Full Tribunal of determination of single member to refuse to make administration order appointing Public Trustee as plenary administrator of proposed represented person's estate - Whether presumption of capacity displaced - Whether need for an administration order

Legislation:

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Guardianship and Administration Act 1990 (WA), s 3, s 4, s 4(2), s 17A, s17A(1), s17A(2), s 64, s 64(1), s 65

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	Ms K Sobey
Proposed represented person	:	Mr P King

Solicitors:

Applicant	:	Public Trustee
Proposed represented person	:	N/A

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

Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87
FY [2019] WASAT 118; (2019) 98 SR (WA) 190
LP [2020] WASAT 25; (2020) 99 SR (WA) 123

REASONS FOR DECISION OF THE TRIBUNAL:

(The application was heard and decision delivered on 28 May 2021. Oral reasons for the decision were delivered on 28 May 2021. The following reasons comprise the reasons that were delivered orally, subject only to minor editing to anonymise parties, improve clarity of expression and correct errors in transcription).

Introduction

The Public Trustee seeks an extension of time, under s 17A(2) of the Guardianship and Administration Act 1990 (WA) (GA Act), to apply for a review by a Full Tribunal under s 17A(1) of the GA Act of the determination made by a single member of the Tribunal on 17 December 2020 to dismiss the Public Trustee's application for an administration order in respect of KD.

Background

KD was born on 21 January 1969 and is now 52 years of age. In about November 2012, KD separated from her former husband, and, in October 2013, she commenced property settlement proceedings in the Family Court of Western Australia (Family Court) (Family Court proceeding).
On 19 June 2018, the Family Court made a finding that KD is 'a person with a disability', for the purposes of the Family Law Rules 2004 (Cth) (Family Law Rules), and, therefore, required a case guardian. On 19 December 2018, the Family Court made an order appointing the Public Trustee as KD's case guardian under the Family Law Act 1975 (Cth) and the Family Law Rules, and an order (Order 3) that:
The costs and expenses of the case guardian be paid from the income or property of [KD].
The Public Trustee, as case guardian, instructed WE of a law firm (firm X), who KD had earlier retained to represent her in the Family Court proceeding, to represent KD in that proceeding. Firm X was, in fact, the eighth firm of solicitors retained by KD to represent her in the Family Court proceeding.
On 22 August 2019, the Public Trustee applied for an administration order in relation to KD's (financial) estate in this Tribunal to enable information and documentation to be obtained to act in the best interests of KD in the Family Court proceeding and in relation to separate proceedings in the New South Wales Supreme Court concerning a Family Provision Act matter involving KD's family.
On 18 November 2019, the Tribunal made an emergency order under s 65 of the GA Act authorising the Public Trustee to exercise the functions as plenary administrator of KD's estate.
On 27 November 2020, the Family Court made consent orders, negotiated on KD's behalf by the Public Trustee with the other party to the Family Court proceeding, finalising the Family Court proceeding. The settlement involves the payment by KD's former husband of a settlement sum of $1.35 million.
On 17 December 2020, the Tribunal revoked the s 65 order and dismissed the application of the Public Trustee for the appointment of an administrator on the basis that, although KD is a person for whom an administration order can be made under s 64 of the GA Act, there was, by then, no longer a need for an administration order to be made, essentially because the Family Court proceeding had been resolved by the orders made on 27 November 2020.
As Ms Kim Sobey, a senior legal officer of the Public Trustee, states in her submissions to the Tribunal dated 2 February 2021, implementation of the Family Court orders finalising that proceeding involved three elements. First, receipt of the settlement sum of $1.35 million by firm X. Secondly, signing documents by or on behalf of KD to effect KD's exiting various roles in various entities, pursuant to the Family Court orders. And, thirdly, the rolling over of funds and, possibly, shares by election into a superannuation fund of KD's choice, which we were told today is a self-managed superannuation fund.
Following the hearing before the single member on 17 December 2020, KD continued to instruct a law firm (firm Y), which was the firm representing her at the hearing on 17 December 2020, to correspond with firm X in relation to implementation of the Family Court orders.
On 18 December 2020, KD emailed Ms Sobey and WE directing payment of the sum of $1.05 million, being the balance of the settlement sum, less legal fees, into her bank account. By that email, KD appears to have accepted that she will receive only the sum of $1.05 million from the settlement of the Family Court proceeding.
However, at 10.55 am on 22 December 2020, KD emailed WE directing him to pay the full settlement sum of $1.35 million into her nominated bank account. WE forwarded that email to Ms Sobey and PP of firm Y later that morning. By email at 1.47 pm that afternoon, PP advised Ms Sobey and WE that firm Y no longer represented KD in her dealings with the Public Trustee and firm X, and requested that all further correspondence be sent to her.
By email dated 4 January 2021, PP advised Ms Sobey and WE that KD had revised her previous position and had continued to instruct – or instructed again – firm Y contrary to the earlier email.
The exchange of exit documents and payment of the settlement sum of $1.35 million was due to take place, under the settlement and the Family Court orders, by 26 January 2021. However, at 11.14 am on 27 January 2021, firm Y forwarded to Ms Sobey a letter from KD in which she disputed the authority of the Public Trustee to have acted, and to continue to act, on her behalf as case guardian, disputed that the settlement in relation to the Family Court proceeding was binding on her, and sought various documents. At 12.44 pm on 27 January 2021, PP emailed WE, stating that KD had 'declined to sign the relevant documents'.
On 28 January 2021, the Public Trustee signed the exit documents and other documents on behalf of KD, under the authority as case guardian. In an email by KD to Ms Sobey and WE, sent at 5.34 pm on 28 January 2021, KD disputed the authority of the Public Trustee to execute documents on her behalf, continued to dispute the validity of the Family Court orders endorsing settlement of the Family Court proceeding and finalisation of that proceeding, and directed that correspondence be directed to her 'as requested' and not to firm Y.
On 29 January 2021, firm Y advised WE that that firm no longer represented KD in relation to any matter, other than SAT proceedings.
On 1 February 2021, the Public Trustee advised KD and firm Y that the $1.35 million settlement sum was received that day into the firm X trust account, from which the Public Trustee's costs of $303,878.73 would be paid and $10,000 retained in the firm X trust account on account of the Public Trustee's future legal expenses as case guardian. The letter also advised that the Public Trustee has concerns about KD's capacity to give a valid discharge of the payment to her of the $1,036,121.27 balance, less any fees deducted by firm X, and that the Public Trustee would be bringing these proceedings in the Tribunal in consequence of those concerns.

SAT proceeding

On 2 February 2021, the Public Trustee sought an extension of time in which to seek review by a Full Tribunal of the dismissal by the single member of the application for an administration order on the basis that concerns had arisen since the hearing on 17 December 2020, in particular in consequence of KD's correspondence indicating that she disputed the completion of the Family Court proceeding.
At the Public Trustee's request, the matter was listed for an expedited hearing on 16 February 2021 before the Full Tribunal. Mr Peter King of counsel appeared by video link from Sydney on KD's behalf and sought an adjournment of the hearing, which application we granted to enable notice of the hearing to be given to KD, which had not occurred, and to enable the parties to gather and file evidence.
The Full Tribunal also made an order, under s 65 of the GA Act, as follows:
The Tribunal being satisfied that:
(i)[KD] may be a person in respect of whom a declaration should be made pursuant to s 64(1) of the Guardianship and Administration Act 1990 (WA); and
(ii)it is necessary to make immediate provision for the protection of that person's estate,
pending determination of the question of whether the proposed represented person is, in fact, a person in respect of whom a declaration should be made pursuant to s 64(1) of the Guardianship and Administration Act 1990 (WA) that the Public Trustee is authorised:
(a)to receive, invest and manage the $1,028,284.87 balance Family Court of WA Settlement Funds ('Funds') for the proposed represented person; and
(b)to apply or expend moneys from the Funds, whether income or capital, for the maintenance, necessaries, comforts and benefit of [KD] in such manner and to such extent as the Public Trustee having regard to the circumstances and value of the estate of that person, considers proper and reasonable.
As we said in our oral reasons for making that order on the day, the making of such an interim order was not opposed by Mr King on behalf of KD, although Mr King sought variations to that order. We determined that it is in KD's best interests for such an order to be made, both to ensure that she receives interest on the balance of the settlement funds and, also, to ensure that money was available for her maintenance.
We did not accept the submission put on KD's behalf that the order should refer to the full settlement sum of $1.35 million, because Order 3 made by the Family Court on 19 December 2018, to which we have referred, provides for the payment of the costs and expenses of the case guardian from the income or property of KD. Furthermore, firm Y gave an undertaking on KD's behalf that expenses incurred by the Public Trustee under the s 65 order made on 18 November 2019 were to be paid to the Public Trustee from settlement funds in the Family Court proceeding. That was a further reason for the making of the order in the terms in which it was made.

Extension of time

Section 17A of the GA Act provides as follows:
(1)Where the State Administrative Tribunal consisting of one member makes any determination, a party who is aggrieved by the determination may request the President to arrange for a Full Tribunal to review the determination and the President shall comply with any such request.
(2)A request under subsection (1) is to be made within 28 days of the date of the determination, or if the Full Tribunal considers there is good reason for making the request out of time, such further time as the Full Tribunal allows.
The Public Trustee seeks an extension of time of approximately 19 days to bring this application. The application for an extension of time is opposed.
While the circumstances or factors for consideration are not closed, there are four principal considerations in the assessment of an application for an extension of time.[1]
[1] Curlewis and City of Albany [2011] WASAT 85; (2011) 77 SR (WA) 87 [68] [69] (Mr DR Parry SM).
The first consideration is the length of delay. In this case, the delay of 19 days is not significant.
The second consideration is whether there is a reasonable explanation for the delay. In this case, there is a reasonable explanation for the delay, because the reason for applying for a review relates to circumstances occurring after the hearing on 17 December 2020 and, in particular, circumstances occurring in the period within the week or so prior to the application being made. We have outlined those circumstances in terms of the correspondence from KD to various persons over that period of time.
The third consideration is whether there is an arguable case. Given the expert opinions in the evidence to which we will refer, and KD's conduct, to which we will refer, during the period after the hearing on 17 December 2020, as well as her conduct during the Family Court proceeding, there is certainly an arguable case as to whether the presumption of capacity is displaced in relation to financial decision-making concerning the Family Court proceeding, and whether KD is in need of an administrator.
The fourth consideration is whether there is any prejudice to KD. In this case, there certainly would be prejudice to KD caused by an extension of time, because she has had to participate in this proceeding and there is the potential, if leave to extend time is granted, for an administration order being made against her wishes.
Mr King opposes the application for an extension of time essentially on three bases. The first is that there was, relevantly, no 'determination' made within the meaning of s 17A of the GA Act by the single member on 17 December 2020, when the single member set aside the s 65 order and dismissed the application for an administrator.
The term 'determination' is defined in the GA Act, in s 3, exhaustively, and relevantly that definition includes in paragraph (b):
[T]he making of, or refusal to make, an order under section 43 or 64[.]
In this case, the member, on 17 December 2020, refused to make an order under s 64 of the GA Act. That determination was indeed a 'determination' within the meaning of s 17A of the GA Act.
The second basis on which Mr King opposes the application for an extension of time is that the request was not, in fact, directed to the President, as required by s 17A(1); that is to say, the substantive request for the convening of a Full Tribunal was not directed to the President but was, rather, directed to the Executive Officer by means of a covering letter. However, the Public Trustee filed the correct prescribed form, which is at pages 8 to 12 of Exhibit 1. By that form, the Tribunal takes applications of this nature to be an application to the President under the relevant section.
The third basis on which the application to extend time is opposed is that there is not 'good reason' for the extension of time. However, in our view, for the reasons that we have given, there is 'good reason'. That is to say that, notwithstanding the prejudice to KD in an extension of time being granted, the delay is not significant, there is a reasonable explanation for the delay, and there is an arguable case. A further factor, in our view, that is relevant in this case – and as we have said, the circumstances or factors for consideration are not closed – is that the Public Trustee brings this application for an extension of time in circumstances where the Public Trustee was appointed as the case guardian by the Family Court and was also appointed as the authority holder under s 65 of the GA Act in the proceeding before the single member, and the Public Trustee's officers had a genuine concern, in light of KD's conduct, as to whether the order dismissing the application for an administration order should be reviewed. In these proceedings, and in all proceedings under the GA Act, under s 4(2), the 'primary concern' of the Tribunal is 'the best interests of … a person in respect of whom an application is made'. It is a protective jurisdiction. In all of those circumstances, it was appropriate and reasonable for the Public Trustee to commence – or to seek an extension of time in which to commence – this proceeding, and to bring this proceeding.
For all of those reasons, in the exercise of discretion, there is 'good reason', in our view, for an extension of time and we grant the extension of time.

Legal framework and principles

The legal framework and principles are not in dispute and can be briefly stated. Under s 4 of the GA Act, every person is presumed to be capable of making reasonable decisions for themselves, including in relation to their financial estate, until the contrary is proved to the satisfaction of the Tribunal. Relevantly, in the case of an application for an administration order, the contrary can only be proved to the satisfaction of the Tribunal under s 64(1) of the GA Act if there is clear and cogent evidence satisfying the Tribunal, on a balance of probabilities, that the person in question is unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of their financial estate, and that person is in need of an administrator of their estate.[2]

Medical and psychological evidence

[2]LP [2020] WASAT 25; (2020) 99 SR (WA) 123 [99] [109] (Judge Parry DP, Ms M Connor M and Dr H Hankey S Sess M).

There is extensive medical and psychological evidence before the Tribunal, which we will briefly review.
Firstly, there is evidence of Dr DB, who is a psychiatrist, in a report dated 11 January 2018. That was a report prepared for the purposes of the determination by the Family Court as to whether there was a need for a case guardian. In that report, Dr DB expressed the opinion that – at least when KD presented in assessment on 11 January 2018 – she was in a state of hypermania, which the doctor said was mild mania, consistent with bipolar affective disorder. However, Dr DB suggested that a diagnosis of bipolar affective disorder should remain provisional until further information is available regarding KD's mental state, over a much longer period of time, and her general medical circumstances. So there was an expression of opinion at least at that stage that KD, at that point, suffered from a mental illness.
The Tribunal also has letters from Dr SN, who has been KD's general practitioner for a long period of time, since at least 2013, and has seen her on multiple occasions during that time. In those reports, Dr SN referred to a brief hospitalisation of KD at Perth Clinic in 2011, but said that she had not referred KD to any psychiatrist, psychologist or counsellor in the entire time that she had seen her, and said that KD was not on any medication. Dr SN did note that KD had been struggling with the legal processes and jargon, which Dr SN said was natural for a non-lawyer.
Thirdly, the Tribunal has the benefit of a report by Dr WO, who is a psychiatrist, and who saw KD in February 2020 for the purposes of the proceeding before the single member. Dr WO provided a report, dated 4 March 2020, in which he said that:
My objective assessment of [KD] indicated that she has overvalued ideas of persecution and injustice perpetuated towards her by her ex-husband and his family.
Dr WO said that, while KD's sense of injustice perpetrated by her exhusband's family:
… might be true, without collateral history from close family members who are aware of the case, it is difficult to draw a definite conclusion.
Dr WO did, however, refer to KD having:
… overvalued persecutory ideas and themes which could potentially be reality based.

He also expressed a provisional view that KD has paranoid personality traits.
Dr WO gave evidence both at the hearing before the single member and at the hearing before us.
At the hearing before the single member, on 17 December 2020, Dr WO maintained the opinions that he expressed in his report in March of that year, and he said that he had:
… concerns that, based on [KD's] persecutory [overvalued] ideas, it's not unlikely that she would not [have capacity to instruct lawyers][.]
When he was asked by KD's then legal representative, JH, as to whether:
… what you're putting there is a possibility, not a definite … statement[?]
Dr WO said:
In that case, looking at her history and what she has told me, it happens. And history is the best predictor of the future, so the probability is significant, just because it has happened previously, not on one occasion, on numerous occasions.
In the evidence that Dr WO gave today, he maintained his opinions. However, he also expressed the opinion that if, in fact, the Family Court proceeding is concluded, as it has been, that, notwithstanding his provisional diagnosis, that does not mean, in his view, that KD is incapable of making reasonable decisions in relation to financial matters.
The Tribunal also had the benefit of psychological evidence presented by KD, both at the hearing before the single member and today. In particular, Dr MM, who is a clinical neuropsychologist, assessed KD in three sessions in October 2020, and provided a report on 5 November 2020. In that report, Dr MM expressed the view that, in the assessments, KD provided consistent and detailed information on her property and business matters and that she appeared to have made rational choices pertaining to matters in relation to her financial estate.
The report refers to the 'somewhat contentious' Family Court proceeding, and expressed the opinion that:
Collectively, there was no evidence of significant impairment in any one cognitive domain, with the majority of [KD's] test scores falling with[in] normal limits.
Dr MM also answered specific questions that had been put to her by KD's then legal representative. In answering the question as to whether KD was 'capable of instructing her lawyers in relation to legal matters', Dr MM expressed the opinion that:
With regard to [KD's] cognitive decision making or "mental capacity", (e.g. the ability to make and communicate well informed and critically reasoned decisions based on learned and retained relevant information), there was nothing in [KD's] neuropsychological profile to suggest impairment.
Dr MM also expressed the opinion in relation to a question to do with KD's capacity to instruct lawyers in relation to Family Court proceedings, that:
… from a neuropsychological perspective, [KD] demonstrates intact verbal and language skills, including intact verbal reasoning, which coupled with her well preserved speed of information processing suggests she would have little difficulty understanding and critically weighing information in real time in order to give well-reasoned instructions based on pre-existing verbal knowledge.
Dr MM did not question any diagnosis by a psychiatrist and, in fact, in her evidence at the hearing before the single member recognised that her evidence was given from a psychological and, in particular, neuropsychological perspective, and not from a psychiatric perspective. However, she expressed the opinion in her report, and maintained that in the evidence that she gave before the Tribunal, that from a neuropsychological perspective, the evidence:
… argues against any impairment in ''mental capacity'' at the time of the current assessment that would be expected to compromise her capacity to understand information provided to her (i.e., updated financial information) any differently than a typical person.
Finally, KD also provided a more recent clinical assessment by a psychologist, being the report of TWM, who conducted two telehealth consultations with KD, for a collective period of about two hours, earlier this year.
In a report dated 1 April 2021, TWM describes KD as cooperative, although 'somewhat loquacious', and expresses the opinion that, on the basis of his assessment of her over the telephone on the two occasions that they spoke, she was well oriented in time, place and person and indicated no major psychiatric disturbance. He also said that, notwithstanding other diagnoses in the evidence:
… there does not appear to be any suggestion that [KD] is currently suffering from a mental illness nor indeed any psychiatric condition, which would impede her capacity to make decisions, understand Court room proceedings, and the consequences of any decisions which she makes.
In the oral evidence that TWM gave to the Tribunal today, he confirmed his opinions and, in particular, expressed the opinion that KD does not have a cognitive impairment. He also indicated in his evidence that KD had told him during the consultations that the Public Trustee had negotiated the settlement of the Family Court proceeding on her behalf, but she did not tell him that final orders had been made, and his understanding, as expressed in his report, and orally today, was that there are still ongoing disputes to do with the Family Court proceeding.

Other evidence

KD also relies on a statement from her partner, BW, dated 16 March 2021, and, in particular, Mr King drew the Tribunal's attention to paragraphs of that statement in which BW states that KD has assisted in the managing of books and decisions to do with a farming enterprise that they have both been involved in since June 2016, and that KD, in BW's words:
… has extensive knowledge in [a particular area of farming] and has assisted in the cropping program giving [advice] on agronomy and rotational cropping.
TWM, in his evidence, said that the type of evidence provided by BW, which BW also said to him in a discussion, is invaluable in drawing conclusions about KD's cognitive capacity. Mr King made essentially the same submission.

Issues for determination

There are two principal issues for the Tribunal in this matter raised in the evidence and the submissions of the parties. The first is whether the presumption of capacity, to which we have referred, is displaced on the evidence in this case to the requisite standard. As we said, that requires clear and cogent evidence and satisfaction on a balance of probabilities. The second issue is whether there is a need for an administrator of KD's estate. We will address those issues in turn.

Is the presumption of capacity displaced?

In relation to whether the presumption of capacity is displaced, there are really two sub-issues raised before us today. The first is does KD currently suffer from a 'mental disability'? And, secondly, is KD presently incapable of making reasonable decisions in relation to any part of her estate, by reason of such a mental disability?
As to whether KD suffers from a 'mental disability', that term has a technical meaning under the GA Act. It is defined inclusively – that is, not exhaustively – under s 3 of that Act to include certain matters, that is, 'an intellectual disability, a psychiatric condition, an acquired brain injury and dementia'.
The Public Trustee submits that the answer to the question is 'yes' – that is to say that KD does have a mental disability within the meaning of the GA Act – and that the Tribunal can draw that inference based on Dr WO's evidence and KD's own conduct in the Family Court proceeding, including since 17 December 2020.
Mr King submits that the evidence does not, in his words, 'come anywhere close' to displacing the presumption of capacity. He relies on the evidence of BW, as we have said, and on the psychological expert evidence of TWM and Dr MM, to which we have referred.
We find on the evidence of Dr WO that KD does have a mental disability within the meaning of s 3 of the GA Act. We note, as the Full Tribunal[3] determined in FY [2019] WASAT 118; (2019) 98 SR (WA) 190 at [32], that, for the purposes of determining whether a person has a 'mental disability', there does not need to be a definitive diagnosis of any particular medical condition or disorder. As the Full Tribunal said:
… [N]othing in the definition of 'mental disability' under the GA Act requires that a finding of the existence of a mental disability be based on a finding as to the existence of one, or more than one, recognised medical conditions or disorders. A finding that a person has a 'mental disability' may, of course, be referrable to the existence of one, or a combination of more than one, identified medical conditions. In other cases, the underlying cause of a person's mental disability may not be entirely clear, or susceptible to a particular medical diagnosis, but the existence of the mental disability may be beyond doubt.
[3] Justice Pritchard P, Ms F Child M and Dr J Caunt Sess M.
We find on the evidence, in particular relying on the evidence of Dr WO, that KD has persecutory beliefs related to the Family Court proceeding, and we accept his provisional diagnosis of paranoid personality traits. He said that he could not be definitive as to whether those traits result in a diagnosis of paranoid personality disorder without collateral evidence from family to support a rational basis for KD's belief in relation to her former husband's family. Dr WO maintained his opinion today, while he was cross-examined by Mr King. That is the only psychiatric evidence before the Tribunal of any recent provenance.
The evidence of BW, Dr MM and TWM does not cast doubt on Dr WO's diagnosis of a mental disability. Rather, their evidence, ultimately, is to the effect that KD does not have a cognitive impairment and is able to understand information given to her and to make reasonable decisions. Dr MM's and TWM's evidence is also to the effect that KD did not manifest any psychiatric condition, to their professional observations, when she was assessed by them.
The next question is whether, by reason of that mental disability, KD is incapable of making reasonable decisions in relation to any part of her estate. Ms Sobey submits, on behalf of the Public Trustee, that the Tribunal should be so satisfied on the evidence, particularly of Dr WO, because he referred to the mental disability that he diagnosed as 'fluctuating' and, therefore, it could return, and having regard to the evidence of KD's conduct during the Family Court proceeding and related to that proceeding.
Mr King, in contrast, submits that even if there is a diagnosis of a mental disability, it has not caused, and does not cause, an inability to make reasonable decisions on the part of KD. He said that any difficulties in decision-making that KD may have experienced during the Family Court proceeding, or related to it, are a product of a very difficult relationship with her former husband, the breakdown of that relationship, and the Family Court proceeding itself and stress associated with it. He notes that there were allegations, at least, in that proceeding of withholding information from KD and financial abuse, which, he submits, are 'real stressors'.
We find on the evidence that, by reason of KD's mental disability, KD is incapable of making reasonable decisions in relation to or concerning the Family Court proceeding. This finding is made both on the basis of the expert evidence and factual evidence, including KD's own conduct.
Dr WO maintained the opinion that KD is incapable of making reasonable financial decisions in relation to the Family Court proceeding, although, as we have said, he accepted that if the Family Court proceeding is concluded, then the diagnosis does not result in her inability to make reasonable decisions about her financial affairs generally.
Dr MM and TWM made it clear in their evidence that they are not giving psychiatric evidence. Their evidence is to the effect that KD does not have a cognitive impairment and is able to understand information given to her and to make reasonable decisions. Although the psychologist expert witnesses consider that that includes in relation to the Family Court proceeding, the factual evidence before the Tribunal is to the contrary.
That evidence includes the fact that KD had retained, and then dismissed, seven firms of solicitors, and the eighth firm of solicitors brought to the attention of the Court their concern as to her capacity to instruct them. Furthermore, the conduct of KD after the hearing before the single member on 17 December 2020 does appear to be inconsistent with statements made on her behalf at that hearing as to her acceptance of circumstances, in particular, her acceptance that the Family Court proceeding had been concluded.
However, we are not satisfied that KD is incapable, by reason of her mental disability, to make reasonable judgments or reasonable decisions in relation to other aspects of her estate, including management of money and her selfmanaged superannuation fund.

Is there a need for an administrator of KD's estate?

In relation to whether there is a need for an administrator, Ms Sobey submits that there is a need, because KD's conduct, particularly since 17 December 2020, demonstrates a continuing need as KD's position expressed in correspondence was inconsistent with what had been said to the Tribunal on 17 December 2020 on her behalf. In particular, as we have said, correspondence over the period leading up to the application being brought indicates that KD – at least at that stage – disputed the finalisation of the Family Court proceeding, and also disputed the appointment of the Public Trustee as case guardian, although the Public Trustee was obviously appointed by the Family Court, after careful consideration, as case guardian, in light of the psychiatric evidence then before the Court, and bearing in mind KD's conduct during the Family Court proceeding.
Mr King's submission is that there is no need for the appointment of an administrator, essentially because, even assuming that there is a mental disability and an inability to make reasonable decisions by KD on the basis of that mental disability in relation to the Family Court proceeding, the 'stressors' associated with the Family Court proceeding are no longer extant.
We find that there is no need for the appointment of an administrator for the following reasons.
First, as a matter of fact, the Family Court proceeding is concluded.
Secondly, the Public Trustee, as authorised to do as case guardian, has executed all relevant documents on behalf of KD required to effect the settlement. The Public Trustee has done so, we find, appropriately and in accordance with that authority. However, those matters have now been attended to.
Thirdly, while TWM said in his evidence that KD indicated to him that, notwithstanding the settlement of the Family Court proceeding negotiated by the Public Trustee on her behalf, there remained ongoing disputes relating to that proceeding, as a matter of fact, as we have said, that proceeding has been concluded.
Finally, the Tribunal is aware of the Family Provision Act proceeding pending in New South Wales. However, there is no satisfactory evidence before the Tribunal that there is a need for an administrator in relation to those proceedings. Furthermore, no submission, ultimately, was put to the Tribunal by the Public Trustee that there is a need for the appointment of an administrator in relation to those proceedings.

Orders

For these reasons, we make the following orders:
1.Pursuant to s 17A(2) of the Guardianship and Administration Act 1990 (WA) time for commencement of the proceeding is extended to 2 February 2021.
2. The order made under s 65 of the Guardianship and Administration Act1990 (WA) on 16 February 2021 is revoked.
3.The application is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUDGE D R PARRY, DEPUTY PRESIDENT
18 JUNE 2021