TJC - [2009] WASAT 130

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: TJC [2009] WASAT 130

MEMBER: MS J TOOHEY (SENIOR MEMBER)
MS D DEAN (MEMBER)
DR D STEPNIAK (SENIOR SESSIONAL MEMBER)

HEARD: 18, 19, 20 FEBRUARY 2009

DELIVERED : 8 JULY 2009

FILE NO/S: GAA 1448 of 2006
GAA 1449 of 2006

IN THE MATTER
OF :TJC
Represented Person

Catchwords:

Guardianship - Intellectual disability - Original decision of Tribunal set aside by Supreme Court - Matter remitted for rehearing - Hearing of remitted matter - Capacity of the represented person not in issue - Need for a guardian not in issue - Conflict between family members - Guardian needed to make decisions concerning where and with whom the represented person should live, services, treatment, arrangements for contact - Who should be appointed guardian - Whether grandmother and father suitable to act as guardians jointly or severally - Whether mother suitable to act as guardian - Public Advocate appointed limited guardian to decide accommodation, services and contact - Mother appointed limited guardian to consent to treatment

Legislation:

Guardianship and Administration Act 1990 (WA), s 4(2), s 4(2)(f), s 43(1)(a), s 43(1)(b), s 44(1), s 44(2), s 51(1), s 51(2), s 91, s 97(1)(b), s 97(1)(b)(iii)
State Administrative Tribunal Act 2004 (WA), s 40

Result:

Public Advocate appointed limited guardian to decide accommodation, services and contact
Mother appointed limited guardian to consent to treatment

Category: B

Representation:

Counsel:

Represented Person : Ms M Stokes

Solicitors:

Represented Person : Stokes & Associates Pty Ltd

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

G v K [2007] WASC 319
TJC [2007] WASAT 105

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

TJC was a young man who had suffered a serious brain injury at birth. The Tribunal had appointed his mother his limited guardian to make decisions about where he should live and the medical treatment and services he required. There was intense conflict between family members about his wishes and where he should live, and the Tribunal had appointed the Public Advocate limited guardian to make decisions about arrangements for contact with family members.
On an appeal by TJC's grandmother, the Supreme Court found that the Tribunal had erred by failing to discharge its obligation to ascertain TJC's wishes. The Court set aside the Tribunal's decision and remitted the matter for rehearing. It ordered the Tribunal's orders remain in effect pending the rehearing.
On the rehearing, there was still conflict between family members about TJC's wishes, and where he should live. The Tribunal appointed a litigation guardian to instruct a separate legal representative for him and ordered an independent assessment by a clinical psychologist.
The Tribunal accepted the evidence of the clinical psychologist that TJC's capacity to express his wishes in a meaningful way is limited and that he is not able to determine what is in his own best interests.
In light of the continuing conflict between the parties, the Tribunal appointed the Public Advocate limited guardian to make decisions on his behalf concerning where he should live, the services he required and to make decisions concerning contact between family members. It was satisfied that his mother was suitable to consent on his behalf to medical and dental treatment and appointed her limited guardian for that purpose.

Background

On 26 February 2007, the Tribunal, differently constituted, made orders under the Guardianship and Administration Act 1990 (GA Act) concerning TJC.
On 21 December 2007, the Supreme Court set aside the Tribunal's orders and the matter is now before the Tribunal for rehearing.
TJC is a 21-year-old man with intellectual and physical disabilities as a result of a severe brain injury at birth. He lives in Western Australia with his mother, her partner, and three younger siblings. Another sibling lives in New South Wales with TJC's father. His paternal grandmother also lives in New South Wales and several paternal aunts live in New South Wales and Queensland.
TJC's parents married when they were very young. He was the first of five children, one of whom died from SIDS. From the beginning, his parents were under financial and emotional stress and their relationship was volatile. They have separated and reconciled several times over the years. TJC's paternal grandmother was involved in his care from an early age.
TJC's parents lived in New South Wales until late 1999 or early 2000 when his mother moved to Western Australia with the children. She did not tell the father or paternal grandmother where she was going. After a period without contact, in late 2005 she moved back to New South Wales with the children and attempted to reconcile with the father. The reconciliation was not successful and in 2006 she returned to Western Australia with the children and has remained here since. The parents are now divorced.

The first Tribunal's proceedings

Over the course of 2005 and 2006, TJC's mother, father and grandmother each lodged applications with the Tribunal seeking to be appointed his guardian. At the time, there was intense conflict between his mother and the father on the one hand, his grandmother and mother on another, and between his grandmother and father on yet another, about where and with whom TJC should live and what his wishes were. All parties alleged various forms of abuse and neglect of TJC by the others.
TJC's mother maintained he wanted to live in Western Australia with her and that it was in his best interests to do so. His father and grandmother each maintained that he wanted to live in New South Wales and it was in his best interests to do so, but each maintained TJC wanted to, and should, live with them.
The Tribunal accepted that all parties were concerned for TJC's welfare and had his best interests at heart. However, it did not accept that arrangements proposed by his father were in his best interests.
The Tribunal accepted that TJC's grandmother was well-intentioned but it found her evidence wanting in many respects. The Tribunal was not satisfied that her proposals for his care were in his best interests. It found she was alienated from both parents and that her animosity towards TJC's mother in particular aggravated the situation. The Tribunal was not satisfied that, if appointed guardian, she would give adequate weight to the importance of TJC's relationship with his mother and siblings.
The Tribunal found that there had been periods in TJC's life when his needs had not been met. In particular, there were periods in his mother's care when his essential medical and dental health care needs had not been met, although not to the extent alleged by the grandmother. However, the Tribunal accepted that, with assistance, the mother had been able to arrange appropriate services and it was satisfied at the time of the hearing that they were meeting his needs. In this regard, the Tribunal preferred the evidence of a clinical psychologist, an occupational therapist and a recreation officer to the grandmother's assertions of continuing neglect by the mother.
On 26 February 2007, the Tribunal appointed TJC's mother his limited guardian to make decisions about where and with whom he should live, the services he should receive, and his medical and dental treatment. It followed from the mother's appointment that TJC would continue to live in Western Australia with her.
The Tribunal accepted that TJC wanted to, and should, have contact with his family in New South Wales. Given the intense conflict between the parties, the Tribunal decided an independent person was needed to make decisions about arrangements for contact. It appointed the Public Advocate limited guardian for that purpose.
On 10 May 2007, the Tribunal published written reasons for its decision: TJC [2007] WASAT 105. The reasons set out therein detail the history of the proceedings, TJC's disability and the conflict between the parties and it is not necessary to repeat it in detail here. Although the grandmother, in particular, has lodged numerous written submissions, little that is new has been submitted by the family in the current proceedings that is not already before the Tribunal in one form or another.

The grandmother's appeal to the Supreme Court

TJC's grandmother sought leave of the Supreme Court to appeal the Tribunal's decision. The grounds of appeal included that the Tribunal had erred in: failing to 'discern or take into account' TJC's views and wishes; failing to make his best interests paramount; failing to take into account that the grandmother had stood 'in loco parentis' for the first twelve years of his life; and failing properly to inquire into, and take account of, the mother's failure to provide adequate care for him.

Decision of the Supreme Court

On 21 December 2007, the Supreme Court found the Tribunal had erred in failing to ascertain TJC's views and wishes 'in whatever manner' as required by s 4(2)(f) of the GA Act. The Court dismissed all other grounds of appeal.
The Court set aside the Tribunal's decision and remitted the matter to the Tribunal for rehearing according to its reasons for decision. The original orders were to continue to operate pending the Tribunal's further determination.
The reasons of Her Honour Justice Jenkins are published as G v K[2007] WASC 319. The reasons in relation to the successful ground of appeal are at [68] - [118] of the decision and it is not necessary to repeat them in detail here. However, some of her Honour's comments are particularly relevant.
Her Honour said (at [80] - [85]) that the duty imposed on the Tribunal by s 4(2)(f) is onerous and the absence of an independent representative for TJC placed 'an even heavier burden' on the Tribunal 'to make inquiries and satisfy itself that it had complied with its duty under s 4(2)(f)'. Further, it was important that, as far as possible, TJC had a 'voice in the hearing' to determine who should be his guardian.
Her Honour referred (at [81] - [83]) to passages in the Tribunal's decision in which it outlined the evidence of a psychologist about TJC's capacity to make reasoned decisions and express his wishes about his living situation and health care. She cited in particular a passage (at [92]) in which the Tribunal stated:
The evidence before us from the psychologist is that [TJC] can express his wishes in an immediate way but cannot contribute in relation to the decision about where he should live or in relation to the proceedings before the Tribunal. We accept this to be the case and so it is not possible to ascertain [his wishes] in relation to the appointment of a guardian.
Her Honour said, at [84], that she did not interpret the Tribunal as saying that TJC was not able to express his wishes, but rather than any view he expressed would not be a reasoned view. This, she said, was a separate issue from whether it was possible for the Tribunal to ascertain his views and wishes, and a separate issue from what weight it should put on his views and wishes if it were able to ascertain them.
Her Honour found the Tribunal had placed undue weight on the report of the psychologist who had been engaged by the mother for the purpose of the proceedings and who saw TJC for one hour only, in his mother's presence. Her Honour said (at [92]) that the Tribunal would have been assisted by an independent assessment as to who would be the best guardian for TJC and that it would have been in his best interests to obtain such assessment.

Role of the Public Advocate

An office of Public Advocate is established by s 91 of the GA Act. As well as acting as guardian or administrator if appointed by the Tribunal, s 97(1)(b) of the GA Act gives the Public Advocate the following functions at hearings before the Tribunal:
(i)to seek to advance the best interests of the person to whom the proceedings relate;
(ii)to present to the Tribunal any information in her possession that is relevant to the hearing; and
(iii)to investigate and report to the Tribunal any matter or question referred by the Tribunal.
When performing her function to advance the best interests of the person whom the proceedings concern, the Public Advocate in effect plays the role of separate representative in Tribunal proceedings and, in investigating and reporting to the Tribunal, she performs the role of independent investigator.
The Public Advocate was involved in the original proceedings by way of a referral by the Tribunal under s 97(1)(b)(iii) of the GA Act and an officer appeared at the hearing to report the outcome of the investigation and advance TJC's best interests.
The Public Advocate could undertake the same functions in the current proceedings but the Tribunal has borne in mind her Honour's comments about TJC's need for a 'voice in the hearing' and an independent assessment as to who would be the best guardian for him and so has proceeded as follows.

Litigation guardian appointed

On 14 March 2008, the Tribunal appointed the Public Advocate litigation guardian for TJC pursuant to s 40 of the State Administrative Tribunal Act 2004 (SAT Act) and directed her to instruct a solicitor to represent TJC in the proceedings.
The Tribunal was mindful that the appointment of the Public Advocate as litigation guardian under the SAT Act, when she was also limited guardian under the GA Act, was not without its difficulty. However, in the circumstances, no family member could assume the role and the alternatives were limited. The Tribunal was satisfied that, with appropriate safeguards, the Public Advocate could assume both roles and found it was in TJC's best interests to proceed in this way so that the matter could be dealt with as quickly as possible. It was especially mindful of the protracted nature of the proceedings and the potential cost to TJC.
The Tribunal directed the Public Advocate to delegate her function as litigation guardian to a person in her office other than the person to whom she had delegated her function as limited guardian under the GA Act in relation to contact. For convenience, the Tribunal refers to the officer to whom the Public Advocate has delegated her function as litigation guardian as 'litigation guardian' and adopts the Public Advocate's term 'contact guardian' for the officer to whom she has delegated her function in relation to contact.

Appointment of separate representative

The separate representative initially instructed by the Public Advocate was involved in the proceedings only briefly before she advised that she had become aware of a conflict of interest and had to withdraw. The Public Advocate subsequently instructed Ms Stokes of Chris Stokes and Associates to act on his behalf.

Appointment of expert to undertake independent assessment

On 14 March 2008, the Tribunal ordered that an independent assessment of TJC's views and wishes and any other matters the Tribunal considered relevant be conducted by a psychologist to be nominated by the Tribunal. It subsequently accepted Ms Stokes' recommendation that Dr Phil Watts, a clinical psychologist experienced in assessments for the Family Court and other legal proceedings, be appointed to conduct the assessment.
At the Tribunal's direction, Ms Stokes drafted and circulated to all parties proposed terms of reference for Dr Watts' assessment and report. All parties had an opportunity to comment on the terms of reference.
Dr Watts proposed that he interview TJC and his mother in Western Australia and that he also interview him in New South Wales in the presence of his father and grandmother. A short visit by TJC to New South Wales for this purpose was proposed.
TJC's grandmother objected to this proposal and insisted that Dr Watts could only properly assess TJC's views and wishes about where and with whom he wanted to live, and which arrangement was in his best interests, after TJC had lived with the family in New South Wales for six months. She proposed he move to New South Wales and the assessment be conducted there after six months. TJC's father supported her proposal.
The Tribunal did not accept the grandmother's proposal. Apart from making already protracted proceedings even more so, it would have been unnecessarily disruptive for TJC and the Tribunal was not satisfied it was in his best interests to proceed in this way. It was satisfied that Dr Watts should conduct his assessment in the way he proposed.
On 13 October 2008, having heard parties' submissions, the Tribunal made minor amendments to the draft terms of reference and ordered Dr Watts' assessment in those terms.
The Tribunal directed the administrator of TJC's estate to pay the costs of the assessment up to $10,000 which included the costs of TJC travelling to New South Wales so that Dr Watts could assess him there in the company of his paternal family. It subsequently directed the administrator to pay the cost of separate representation up to $10,000 and the cost of Dr Watts' attendance at the hearing up to $5,000.

Administration not part of the current proceedings

In 2005, TJC received approximately $7 million in settlement of a claim in relation to the injuries he sustained at birth. Perpetual Trustees Western Australia administer his estate pursuant to orders made by the Tribunal on 15 December 2005. The current proceedings concern only the guardianship of TJC. They do not concern the administration of his estate except to the extent that the Tribunal has ordered the administrator to pay for TJC's separate legal representation and for assessment and report by a clinical psychologist.

Conduct of the hearing

The conflict between the parties has continued throughout the current proceedings. The grandmother in particular has continued to lodge extensive written submissions and has objected to almost every proposal for dealing with the matter.
The Tribunal has been mindful of the costs to TJC's estate of his legal representation and Dr Watts' assessment and, in order to manage the proceedings as smoothly as possible, it has held a number of directions hearings prior to the final hearing.
The Tribunal considered that the final hearing required close management to contain the time and cost it could potentially involve. It therefore made directions about how the hearing would be conducted, including that parties file witness statements, and it provided a copy of Dr Watts' report to parties prior to the hearing and required them to file with the Tribunal a list of the questions they proposed to ask him at the hearing.
The Tribunal conducted a hearing on 18, 19 and 20 February 2009. Ms Stokes represented TJC. TJC's mother had legal representation. TJC's father, grandmother and paternal aunts travelled from New South Wales for the hearing and, at the Tribunal's direction, nominated one of the aunts to represent them. The Tribunal was greatly assisted by her very able representation. As we note later, even after the hearing, the grandmother disputed statements made by the aunt at the hearing on the family's behalf.
The Tribunal heard oral evidence from Dr Watts and from TJC's mother, father and grandmother. The Tribunal also had before it the files relating to the current and previous proceedings.

Principles to be observed

Section 4(2) of the GA Act sets out the principles that the Tribunal must observe in dealing with proceedings commenced under the GA Act. As they apply to guardianship proceedings, they are:
i)the primary concern of the Tribunal shall be best interests of the person whom the proceedings concern;
ii)every person shall be presumed to be capable of making decisions about their person and their estate until the contrary is proven to the satisfaction of the Tribunal;
iii)a guardianship or administration order shall not be made if the person's needs could be let by other means less restrictive of their freedom of decision and action;
iv)a plenary guardian shall not be appointed if the appointment of a limited guardian would be sufficient to meet the person's needs;
v)an order appointing a limited guardian shall impose the least restrictions possible in the circumstances on the person's freedom of decision and action; and
vi)the Tribunal shall, as far as possible, seek to ascertain the views and wishes of the person concerned as expressed, in whatever manner, at the time or as gathered from their previous actions.

Issues to be determined

TJC's disabilities are well-documented in medical and other reports. It is common ground that he is unable to make decisions for himself about his health, safety and wellbeing. It is also common ground that he needs someone with lawful authority to make a range of decisions on his behalf, in particular about where and with whom he should live, what services he needs, what medical and dental treatment he requires, and about contact with his family in Western Australia and New South Wales.
The Tribunal is satisfied that TJC meets all of the criteria in s 43(1)(a) and (b) of the GA Act. In light of the conflict, it finds there is no less restrictive means by which his needs can be met than the appointment of a guardian.
The principal issue to be determined by the Tribunal is who should be appointed TJC's guardian or guardians. In reaching that decision the Tribunal must ascertain, as far as possible, TJC's views and wishes. Its main concern must be his best interests.
The conflict between the parties is well-documented in the reasons of the earlier Tribunal. Little has changed over the course of these proceedings other than that further incidents have occurred for parties to argue about. For instance, there is a dispute about what occurred between TJC's parents when he visited New South Wales in September 2008 and a further dispute about his admission to hospital in Western Australia on Christmas Day 2008.
The Tribunal does not dismiss parties' concerns about these incidents but it would prove very difficult to determine the truth in each case and it would make the proceedings extraordinarily protracted to attempt to do so. Whatever the truth of the various allegations, their real relevance is to underline the extent of the continuing conflict and the remoteness of any possibility of sustainable cooperation between the parties.

The father's submissions

Although in the past they sought guardianship separately, the father and grandmother now say they have resolved their differences and propose they be appointed joint guardians for TJC. They say it is not in his best interests to live with his mother and siblings in Western Australia; he wishes to live with them in New South Wales and it would be in his best interests to do so. TJC's four paternal aunts support this proposal.
The father alleges that the mother is not a suitable person to be appointed TJC's guardian. He says she has lived in at least seven places in recent years whereas he has lived in the same place in New South Wales for 17 years. He says she has made it difficult for him to have contact with his children and says she has taken mobile telephones from TJC and had the telephone disconnected so that he can now rarely speak to TJC by telephone. He finds the current arrangement frustrating and difficult and does not consider that contact with his son, as determined by the Public Advocate, is adequate.
The father continues to allege neglect of TJC's medical, dental and general care by his mother. Most of his allegations have been dealt with in the earlier proceedings. As noted above, in its written reasons the previous Tribunal was satisfied that his needs were being met in his mother's care.
TJC's father says he can provide the love and care that his son needs and says he has the time, patience and necessary family support to care for him. He has outlined the inquiries he has made about local support services and his proposal that his partner live with him to help care for TJC. He proposes all the children live with him in New South Wales where he can provide a better standard of care than the mother.
The earlier Tribunal noted (at [36]) a statement by the father in 2006 that TJC 'detested' his mother; he would go into a deep depression when she visited and 'just to speak [to her] on the telephone is a form of torture'. The Tribunal considered (at [100]) that the grandmother was 'alienated' from both parents and that her evidence about her relationship with the father was contradicted by the father himself.
The father now says he and the grandmother have resolved their differences and can work together; he has attended two counselling sessions on his own and he and the grandmother have recently attended counselling together.
The father and grandmother have submitted a letter from a psychologist confirming she had met with them over six sessions. The psychologist speaks well of both and says they are 'very well motivated' to attend the sessions and are 'finding increasingly warm contact … and are communicating with respect, openness and appreciation'. She concludes that she believes that they 'will be able to communicate well with each other in the future. They might feel the need of support through counselling during some stages to safeguard stability and good support for [TJC]'.
The Tribunal does not doubt the father's and the grandmother's good intentions. It is evident, however, that they do not necessarily share ideas about TJC's needs and where he would live if returned to New South Wales. For instance, the father gave evidence that his plan was that TJC would live with him and go to his grandmother as needed. Initially, the grandmother's evidence was that TJC would live with her but, when the father's evidence was put to her, she said she would move into a house with TJC and his father. She claimed she had discussed this idea with the father on the morning of the hearing but this is not supported by the father's evidence and we do not accept her evidence about this.
The grandmother and father also have different ideas about who would act as a referee if any disagreements arose between them about TJC's care and where he should live. The father told the Tribunal he would consult one of his sisters and would ask her to act as referee. On the other hand, the grandmother thought the sister lives too far away and, although they might ask her advice, said they would go to the psychologist they are presently seeing if a referee were needed; and, if necessary, she would make the final decision herself.
The father still maintains that TJC can express his wishes meaningfully. He concedes he has difficulty doing so, but says through sign and body language he is able to understand what TJC wants. He maintains that TJC has consistently expressed the wish to live with him, including during a visit in September 2008 when he said 'I want to stay here with you Dad'. The father disputes Dr Watt's views about the significance that can be attached to TJC's limited ability to express his wishes.

The grandmother's submissions

TJC's grandmother maintains she should be appointed jointly with his father and, alternatively, that she should be appointed sole guardian. She claims she was TJC's primary carer until the age of twelve or thirteen. Both parents concede she was very involved although the mother disputes the extent of her involvement and denies she was ever the primary carer.
The grandmother's evidence is essentially the same as previously in that she continues to allege that TJC's mother neglects him. Dr Watts describes her as 'very intense in her manner', 'almost impossible to get her to take on feedback', 'obsessed' about issues to do with TJC and says she shows 'personality traits which are likely to make her difficult to deal with'.
The grandmother does not dispute being intense and even obsessive, about her care for TJC but says she needs to be. She denies being difficult to deal with but, although she could list many agencies and people with whom she had dealt over the years about TJC's care, she could think of only one individual, many years ago, whom she regarded well; all others she regarded as difficult.
Although she continues to allege that TJC's mother neglects dental care, the grandmother does not appear to have a plan of her own in this regard and she had to be pressed several times to say more than he would need a good diet and it is 'all prevention from now on'. As noted above, there is no evidence before the Tribunal to support a finding that his dental care is now seriously lacking.
Asked at the hearing what her plans are to ensure TJC would spend time with his mother and siblings, it was clear that the grandmother thought the mother should make the arrangements. Alternatively, she thought 'we' would have to make the arrangements and would have to speak to the mother but, when pressed, she did not know how she would do this; she might do it in writing but she did not know how it would work.
In relation to services, the grandmother said TJC would need a personal carer and she would like to be the person who directs the carer. On reflection, she thought she should be the primary carer even if TJC were to live at his father's house.
The grandmother evidently has great difficulty recognising that anyone other than she can make reasonable decisions for TJC or should be allowed to. For instance, she made arrangements during TJC's visit in 2008 to New South Wales for him to see a doctor and a dentist, even though his mother has been appointed for that purpose. She did not consult the mother and told the Tribunal 'we are all his guardians regardless of who has been given authority'.
The grandmother is adamant that TJC can express his wishes in a meaningful way. However, asked by the Tribunal what she would do if he expressed the wish to return to live with his mother, she said he would not do that; he wants to be with her. When pressed, she conceded that 'we' would have to deal with that situation if it arose but it was clearly beyond her contemplation. She does not concede that others, even his mother, might interpret his communication differently from how she would and if they did, she clearly believes they would be wrong.
The grandmother also maintains that, with the help of counselling, she and TJC's father have worked out their differences and are united in wanting the best for him. She claims they have always been close, despite their differences; they are both 'vocal and express [their] differences freely' and this 'could sometimes be misinterpreted by people'.

The mother's submissions

The mother proposes the status quo be maintained, meaning she continue as limited guardian with authority to decide accommodation, services and treatment, and the Public Advocate continue to make decisions concerning contact. She asserts that it is in TJC's best interests to continue to live in Western Australia with her and visit the family in New South Wales from time to time.
TJC's mother says he has lived with her all his life; he is close to his three siblings who live with her and he is close to her sister and her two children who live close by. Since about 2000, she has been his primary carer and he has spent a total of only a few weeks in that time with his grandmother and father.
She acknowledges that the time after she moved to Western Australia in 2000 was difficult; she had little money and TJC was going through usual teenage difficulties; he had some behavioural problems for which she says she sought help. She disputes allegations about his medical and dental care and says he is now receiving appropriate care. TJC attends a service four days each week where he enjoys activities such as gardening, pottery, bowling and music. There was an incident recently while at the day placement as a result of which she has decided he should go to another service.
The mother has no objection to visits with the grandmother and the father and agrees they should happen two to three times each year. Her preference is that the grandmother and father come to Western Australia for one of the visits so they can see the other children at the same time.

Dr Watts' evidence

Dr Phil Watts is a clinical and forensic psychologist with extensive experience interviewing and assessing young people and adults in Children's Court, Family Court and other legal proceedings. His qualifications and experience are not in dispute.
The Tribunal provided Dr Watts with all relevant documents and material it held in connection with the proceedings and a copy of his 34page report of his findings was provided to all parties prior to the hearing. He heard their oral evidence before giving oral evidence himself, and they were able to question him about his findings at the hearing.
Dr Watts reports that TJC's intellectual disability was an important consideration in how he conducted his assessment and he structured his methodology so as to have the best chance of understanding his nature and wishes. He spent nearly 20 hours interviewing and assessing TJC and his family in Western Australia and New South Wales by means of formal interviews and unstructured observations of their interaction and TJC's interaction with his carer at the time. Dr Watts took into account information given to him by the paternal aunts but did not conduct formal assessments of them.
The Tribunal notes the grandmother's comments about what she says are the limitations of Dr Watts' assessment but it accepts his professional view that he spent sufficient time with the family and TJC to form 'a reasonable psychological opinion'. He acknowledges that the father and grandmother wanted more time but does not believe that this would have altered his findings substantially.
Dr Watts outlines in his report the history of relationships between the mother, father and the grandmother and says the issues brought before the Tribunal go back many years and are 'the tip of the iceberg'. He notes they have quite different views and perceptions of various aspects of their relationships. He has no doubt that all parties have genuine love and concern for TJC, although their capacity to understand and meet his needs varies.
In relation to TJC's views and wishes, Dr Watts reports that his most remarkable feature is his warm and excited responses; he has limitations which are obvious but is in no way completely physically impaired. Dr Watts assesses his capacity to express himself as 'like a two to three year old where the carer has to anticipate and guess what he is trying to get across' and his level of understanding as 'along the lines of a five or six year old'.
In Dr Watts' view, the implications of TJC's impaired understanding and capacity to express himself are that any wish he expresses will rely heavily on the interpretation of his carer (or others present) and it will depend on the moment.
Dr Watts was able to determine that TJC likes, and wants to see, his mother, father and grandmother. He sees no evidence to support the grandmother's assertion that TJC 'hates his mother'. When he asked TJC who he would like to live with, he responded 'Pa' (meaning his father); when asked why, he said 'motorbike'. However, Dr Watts believes that TJC does not have the capacity to indicate where he would like to live in the long term and nor does he have the capacity to determine what is best for him.
Dr Watts describes the capacity to know what is best for oneself as 'a very advanced cognitive skill'. In his view, TJC has no capacity to indicate what is best for him; he can only give some indication of what he likes at the moment meaning that, even though he may express a wish consistently, he has no insight into why.
Dr Watts assessed the mother's, father's and grandmother's personalities and ability to function and sets out his findings in his report. It is fair to say that he finds each to have their limitations. He reports that the father, mother and paternal aunts all agree that the grandmother has exacting standards and is 'anxiously over-protective' of TJC.
In Dr Watts' opinion, 'there is no one best option' for TJC's ongoing care. He believes TJC would likely get the highest enjoyment in life if he lived with his father because they would get involved in joint activities together; his life would be more easy going but with greater risks because, for example, the father is the one least focussed on his medical needs. The grandmother would be the most exacting in terms of his medical and other needs but she would likely be 'smothering' and he would find it hard to adjust after the relative freedom he has enjoyed with his mother. Moreover, the grandmother's relationship with the mother and father would create its own problems.
Although the mother has had almost exclusive care of TJC over the past seven to eight years, Dr Watts says 'one would not see her care as particularly exceptional' and there have been times when it has 'fallen short' particularly after the breakup with the father. Dr Watts found her 'lack of stability' in moving house a number of times cause for some concern; consistent with the father's allegations, he noted that TJC's toenails were long and needed cutting and he found the mother's failure to keep appointments with him, without explanation, of 'serious concern' because she was failing to deal appropriately with professions. However, he found 'no evidence of current significant failure to provide for' TJC.
Dr Watts assesses the mother as now more stable and coping better overall but says she does not see a lot of TJC's needs or what could be done to fulfil them. For instance, although he has a very large estate, she was not aware of GPS-like devices that could monitor him and alert her if he wanders as he does sometimes, and his medical and educational needs should be better met. Having said that, at the time of his assessment, Dr Watts believed TJC appeared to be doing 'reasonably well' and better than in some previous years.
Dr Watts says the mother and father cannot work together normally. The father says he thinks they can, and that things are now better between them, but the mother disagrees and cites an incident between them on TJC's last visit to New South Wales.
In Dr Watts' view, the best outcome would be if the grandmother and the father could work together consistently so as to balance each other but, despite their efforts at counselling and their claims to have reconciled, he believes it is 'too little too late' to try to shift their differences and that they are 'unable to deal with each other normally'.
Dr Watts sees 'pros and cons' to TJC living in Western Australia and New South Wales. However, he believes his best interests would be served by remaining in his mothers' care with strategies in place to improve the quality of her care, and a structured arrangement for two to three interstate visits of two to four weeks duration each; applying 'Family Court thinking', there would need to be an unacceptable risk in remaining where he is before he should be moved although it would not be 'complete devastation' to move him to New South Wales if things do not work out in Western Australia.
The grandmother and the father dispute Dr Watts' assessment that they cannot work together normally. The grandmother believes that others like Dr Watts, who do not know them well, misinterpret exchanges between them.
The grandmother does not accept Dr Watts' assessment that TJC cannot express his own wishes and assess his own best interests. She maintains he often knows what he wants and what is best for him but that he is rarely given the opportunity to express this. She says he frequently chose to spend time with her and would put on a tantrum if could not go to her. She maintains she has a special bond with him because of the time she has spent with him and the care she has given him.
Dr Watts believes an 'independent broker' is needed to make all the arrangements for TJC's visits to the family in New South Wales because he does not think they can do it themselves. He believes it would make sense for TJC to have someone in the role of 'medical case manager' to do things like ensure TJC is taken to medical appointments and, generally, to improve the quality of his care.

The Public Advocate's submissions

The Public Advocate does not dispute Dr Watts' findings about TJC's capacity to express his views and wishes.

The contact guardian gave evidence that, based on his dealings with the family, their differences are irreconcilable and will affect any decisions they make on his behalf. He told the Tribunal that conflicts about arrangements for TJC's visits to New South Wales have made it difficult to arrange contact visits.
The Public Advocate submits that the overlap between the mother's authority to decide where TJC will live, and the Public Advocate's authority to make decisions concerning contact, makes it particularly difficult to arrange visits. For instance, on one occasion the mother refused to allow TJC to stay with the father overnight while visiting him in New South Wales in 2007. As the mother has the authority to decide where TJC should live temporarily, the Public Advocate considered she could not override the mother and the visit could not go ahead as planned.
The Public Advocate submits it is in TJC's best interests for her to have authority in relation to accommodation and contact. The Tribunal considers this can be dealt with by specifying in orders the extent of the Public Advocate's authority, leaving authority to decide where he should live with his mother.
The Public Advocate is concerned that the primary objective of the grandmother and the father appears to be to effect his return to New South Wales. In her view, neither sufficiently recognises the real challenges that caring for him full-time would present. The Public Advocate submits that it would not be in his best interests for either to be appointed his guardian.

The separate representative's submissions

The separate representative submits that it is in TJC's best interests to remain living with his mother and that she should retain the authority to decide where he lives. However, he should have access to a wider range of services than currently provided in his mother's care. To this end, a 'medical case manager' and support worker need to be engaged who would link the mother with appropriate people who can assist with his care. As a starting point, TJC should undergo a comprehensive medical assessment and educational review.
The separate representative submits that, with these arrangements in place, TJC's mother should retain authority in relation to his medical and health care. Alternatively, she should be appointed jointly with the Public Advocate, although such an arrangement could be fraught with practical difficulties.
The separate representative does not dispute Dr Watts' assessment of TJC's ability to express his wishes and submits that little weight should be given to his expressed wishes in determining the guardianship matter. She submits that the grandmother's and father's concerns are understandable but the mother satisfies most of the requirements of a guardian and is the preferred person of the three. She recommends that the mother, father and grandmother seriously consider some form of mediation in order to reach agreement about arrangements for visits between them.

Findings about TJC's views and wishes

We are satisfied that the Tribunal has fulfilled its obligation under s 4(2)(f) of the GA Act to ascertain, as far as possible, TJC's views and wishes about where and with whom, he should live.
Dr Watts' extensive experience makes him well-placed to assist the Tribunal in its inquiry. He was directed in particular to assess TJC's capacity to express his views and wishes and what significance might be attached to any expression of his views and wishes. He has gone to considerable lengths to undertake a careful and detailed assessment of TJC and his immediate family, including travelling to New South Wales to observe him with his family there.
We acknowledge that TJC's father and grandmother dispute Dr Watts' assessment. We acknowledge they have known TJC all his life and are undoubtedly better able to interpret his communication than Dr Watts. However, both have limited objectivity where TJC is concerned and the grandmother, in particular, has demonstrated a lack of capacity to accept any opinion that differs from her own. In all the circumstances, we prefer Dr Watt's opinion.
We accept Dr Watts' opinion that TJC has a limited capacity to understand others and even more limited to express himself. We accept that, to the extent that he expresses a wish, it is only in the limited sense of what he wishes at that moment. To that extent, his expressed wish to live with his father, even if repeated, may reflect little more than his enjoyment in his father's company at the time.
Even if TJC is more capable than Dr Watts believes of expressing his wishes in a meaningful way, the Tribunal's primary concerns must nevertheless be his best interests. We accept Dr Watts' evidence that TJC is not able, because of his intellectual disability, to determine his own best interests in matters such as where and with whom he should live, the services he should receive, the medical treatment he requires and arrangements for contact.

Who should be appointed

The Tribunal must be satisfied that a person (or persons) appointed as guardian will act in the best interests of the person in respect of whom the application is made and is otherwise suitable: s 44(1).
In determining whether a person is suitable, the Tribunal shall take into account as far as possible the matters set out in s 44(2). They include the desirability of preserving existing relationships with the family.
Section 51(1) of the GA Act provides that a guardian shall act in the best interests of the represented person. Acting in a person's best interests includes acting in such a way as to maintain any supportive relationships the person has and, in consultation with the person, taking into account as far as possible his views and wishes: s 51(2) of the GA Act.
For the following reasons, we are not satisfied that the joint appointment of the father and grandmother would be in TJC's best interests.
The Tribunal has no reason to doubt the commitment of the father and grandmother to TJC's welfare. We accept that they wish to resolve the difficulties in their relationship and to this end have been attending counselling. However, this is a recent development since only January this year. Neither of them can seriously deny that they have been in conflict for most of TJC's life. Even at the hearing, they had different views about where they would all live and who would act as a referee if they disagreed about TJC's care. Given the fragile history of their relationship and that they are still in the early stages of counselling, we are not satisfied that there has been a durable change in their relationship; the potential for dispute and disagreement remains real.
Guardians are required to act unanimously. However, given the grandmother's intense involvement with TJC and her insistence that she knows better than anyone where his best interests lie, there is a real chance that a joint appointment would be unworkable and she would become, in effect, TJC's sole guardian.
Nor are we satisfied that it is in TJC's best interests for his grandmother or father to be appointed sole guardian. We are not satisfied that the grandmother would maintain his relationship with his mother and other siblings and there is a real chance that she would not observe even the father's wishes.
Further, both the father and grandmother have stated they would move TJC to New South Wales if appointed. We accept the submissions of Dr Watt, the Public Advocate and the separate representative that it is in his best interests at this time to remain living with his mother and siblings. The appointment of either would result directly in a decision that none say is in his best interests.

Who should make decisions concerning contact

The separate representative, the Public Advocate and the mother all submit that decisions concerning contact should remain with the Public Advocate. The father and grandmother submit that, if not with themselves, authority should rest with the Public Advocate.
It is evident that arrangements for visits continue to be difficult and might not happen at all without an independent decision-maker. The Tribunal finds it in TJC's best interest for the Public Advocate to continue to make decisions concerning contact with TJC's family in Western Australia and New South Wales.
The Public Advocate has told the Tribunal that arrangements in the past have been difficult because authority to determine where TJC should live, whether temporarily or permanently, rests with the mother. This could be dealt with by orders making clear that the Public Advocate has authority to make all decisions, and determine all arrangements, for TJC's visits to New South Wales. However, this is not necessary because we propose to appoint the Public Advocate to make decisions concerning where TJC should live.

Who should decide where TJC's should live

The mother says that, if appointed, she would decide that TJC should remain in Western Australia with her. Dr Watts believes that TJC could live in Western Australia or New South Wales; the standard and type of care might be different but he could be happy in either place. On balance, however, he thinks it in TJC's best interests to remain in Western Australia with his mother. The separate representative says he should remain in Western Australia with his mother. The Public Advocate, if appointed, would decide he should remain in Western Australia.
In one sense, whether the mother or the Public Advocate is appointed makes little practical difference because both would decide that TJC should live in Western Australia, at least for now. However, we cannot discount the possibility that circumstances could change. We heard from Dr Watts that there could be a number of changes in what is best for him over the next five years. For instance, the composition of his mother's home will likely change as his siblings grow older and it maybe that more independent living is preferable. A guardian needs to be genuinely open to the possibility of different arrangements. For as long as the conflict continues, this will always be difficult for the mother.
On balance, we find it in TJC's best interests for the Public Advocate to have authority to decide where TJC should live, whether permanently or temporarily.

Decisions concerning services

We consider it in TJC's best interests that the Public Advocate have authority to determine the services he should receive.
We are satisfied, and the grandmother and father acknowledge, that the mother's care for TJC has improved, especially in the past two to three years. However, even by her own admission, she has been tardy in arranging a range of services for him including occupational and speech therapy. In oral evidence she could not think of anything to meet his need for mental stimulation and does not appear to have thought of educational needs. She was not aware of tracking devices that might help when TJC goes wandering; she thought these would be a good idea but seemed unable to think of such ideas herself.
The mother says she has been busy and feels overwhelmed by what she sees as constant blame by the grandmother and father for her failures regarding TJC and we have considerable sympathy for her. However, it is difficult to understand, especially given that money is no object, why she has not done more to arrange services. We do not say these things by way of criticism but we consider it in TJC's best interests for the Public Advocate to make decisions about the services he requires. There is no reason why the mother should not implement whatever decisions the Public Advocate makes and we are confident she will do so.

Consent to medical and dental treatment

We are satisfied that the mother's attention to TJC's medical and dental treatment has improved but it could be improved further, especially given the funds available to him. For instance, his dental treatment has been a source of contention over the years and has clearly improved, but the mother appears to have got no further than thinking about implants even though she believes these would be good for him. She told the Tribunal she decided to stop TJC's physiotherapy because all the physiotherapist was doing was rubbing his back which she can do herself. She has only recently arranged to buy a massage bed for TJC but it had still not been delivered at the time of the hearing.
Having said that, we are satisfied that, with the support of the appointment of the Public Advocate to determine the services TJC needs, the mother is a suitable person to consent on his behalf to medical and dental treatment and health care.

Submissions received after the hearing

On 24 February 2009, after the Tribunal had reserved its decision, it received a 'supplementary submission' from the grandmother reiterating allegations against the mother and disputing statements made by the paternal aunt who had been appointed spokesperson for the family at the hearing. As the submission simply reiterated her concerns, the Tribunal noted its contents but did not consider it need deal with it further.
On the following day, the Tribunal received from the father a copy of a letter he had sent to the contact guardian alleging certain events occurred on the afternoon immediately following the Tribunal hearing when he and the grandmother went to visit TJC. In particular, he alleged that he found TJC suffering severe sunburn and that TJC had disclosed that his mother's partner had physically abused him. The father maintained that TJC had made similar disclosures 'numerous times' before and that he had begged to be allowed return to New South Wales with the father.
The Tribunal provided a copy of the father's letter to the mother's legal representative, the Public Advocate and the separate representative for their comments. As it could not find in any of the evidence an allegation by the father of 'numerous' disclosures of abuse, it wrote to the paternal aunt representing the family about this.
In response, a medical report from a general practitioner provided by the mother confirmed that, on 24 February 2009, TJC had 'sunburn to his back which was healing with superficial peeling'. The mother also provided an affidavit disputing the claims made by the father and stating that neither he nor the grandmother raised the allegations of sunburn and physical abuse with her following the hearing. She denied the claims of physical abuse.
The contact guardian responded that he had spoken with the mother and the father about the allegations. On reviewing his notes, he had found that the father had raised the allegation of assault by the mother's partner in correspondence with Dr Watts and in a submission to the Tribunal, although not at the hearing. The contact guardian thought it possible that there was some confusion over the name of the person who TJC was alleging assaulted him; he submits that the allegations illustrate the ongoing communication difficulties and tensions between the parties and that orders should be made as already submitted.
Dr Watts expressed concerns at the allegations and matters in the father's letter and concluded that they highlight the mother's contention that, if TJC sees the paternal family, problems continue to arise.
We agree with the Public Advocate's and Dr Watts' observations. We do not think it serves any purpose to investigate these matters further.

Orders

The Tribunal orders that:
1.The Public Advocate is appointed limited guardian of the represented person with the following functions:
(a)To decide where he is to live, whether permanently or temporarily;
(b)To decide with whom he is to live;
(c)To determine the services he requires; and
(d)To determine what contact, if any, he should have with others and the extent of that contact.
2.The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate.
3.The mother of the represented person is appointed limited guardian with the following function:
(a)Subject to Div 3 of Pt 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care.
4.The Tribunal will commence a review of these orders by 8 July 2014.
5.The plenary administrator is directed to pay the additional costs of legal representation for the represented person in these proceedings up to a limit of $12,000.

I certify that this and the preceding [135] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS J TOOHEY, SENIOR MEMBER