TJC - [2007] WASAT 105

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA)

CITATION: TJC [2007] WASAT 105

MEMBER: MS F CHILD (MEMBER)
MR J MANSVELD (MEMBER)
MR J JAMES (SENIOR SESSIONAL MEMBER)

HEARD: 1 AUGUST 2006, 13 SEPTEMBER 2006, 28 NOVEMBER 2006, 26 FEBRUARY 2007

DELIVERED : 10 MAY 2007

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

BETWEEN: TJC
Represented Person

Catchwords:

Guardianship and Administration – Guardianship – Represented person with acquired brain injury from birth – Cross applications for the appointment of a guardian – Allegations of neglect – Need for a guardian – Need for certainty as to authority for decision-making – Need to determine the contact with family living in New South Wales – Mother and direct carer appointed for personal decision making other than contact – Public Advocate appointed to determine contact with others – Recognition of orders made in Western Australia

Legislation:

Guardianship Act 1987 (NSW)
Guardianship and Administration Act 1990 (WA), s 4, s 43(1)(b), s 43(1)(c), s 44(5)
State Administrative Tribunal Act 2004, s 77

Result:

Applicant mother appointed limited guardian to determine where the represented person is to live and to consent to medical treatment and services on his behalf
The Public Advocate appointed limited guardian to determine the contact the represented person has with others

Category: B

Representation:

Counsel:

Represented Person : Mr S Jones

Solicitors:

Represented Person : Shaddicks Lawyers

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

TC [2006] WASAT 369

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The mother of a 19‑year‑old man, who had suffered a severe brain injury at birth, was appointed his limited guardian by the State Administrative Tribunal to decide where he was to live, with whom he was to live, and to consent to medical treatment and services on his behalf. Because of intense conflict between the mother and some other family members, including the father of the young man, the Tribunal also appointed the Public Advocate as his limited guardian to determine the contact he should have with his family in New South Wales, including his father and grandmother.
The guardianship appointments were made in the context of longstanding conflict between the parents of the young man, and between his mother and paternal grandmother as to where he should live and the arrangements for his care. The Tribunal decided that there was a need for a guardian to provide certainty about who had authority to make decisions for him and to determine the contact he had with other family members.
The Tribunal did not follow the recommendation of the Public Advocate's representative to appoint the Public Advocate as his plenary guardian. The Tribunal accepted that the mother had experienced difficulties in the past in managing the young man's care needs. In particular, there had been a lack of continuity in his dental care and the recommended specialist monitoring of his epilepsy. Despite this, the Tribunal was not persuaded that it was necessary to appoint the Public Advocate as guardian to ensure that the relatively recent engagement with these services continued.
The decision of his mother at short notice to move back to New South Wales in 2005, which had further delayed his treatment and disrupted his living environment, was of concern but on balance the Tribunal found the mother suitable to be appointed his limited guardian.
The Tribunal determined that the mother was the appropriate appointment as guardian to make personal decisions for him as she had now engaged with health care and other service providers, and the dental and other health needs of the young man were now being managed by the appropriate health care professionals. She proposed that her son remain living with her and her other children in a country town in Western Australia, and that he continue to access the services which had been engaged, including an alternative to employment programme which he enjoyed.
The mother had been his primary carer for the whole of the young man's life and he was settled living with her and his brothers and sister. While his family life had been unsettled in the past and a recent attempt at reconciliation in 2005 with his father had resulted in violence towards the mother by the father and had contributed to the lack of stability and possible financial loss to the young man, the Tribunal considered that at the time of the hearing his needs were being met and his living situation with his mother and siblings should be supported and maintained.
There remained some uncertainty as to the durability of the arrangements given the history but this was not sufficient in the view of the Tribunal to make a finding that the mother was not suitable to be appointed his guardian, and to, in effect, displace the role that she had played and continued to play in his life.
The father proposed that he be appointed guardian and that a shared care arrangement for the young man of six months living in Western Australia and six months living in New South Wales be made. This proposal was not considered by the Tribunal to be in the young man's best interests. The father's application for appointment as guardian was dismissed. The proposal by the paternal grandmother for her appointment as guardian was also not considered appropriate given her proposals for his future care and the animosity which was evident in her relationship with the young man's mother.
The Tribunal considered that there was a need for an independent guardian to determine the contact the young man had with his family in New South Wales in light of the longstanding conflict between the adults in his life. The guardianship orders were made reviewable in one year.
The Tribunal had previously confirmed the appointment of a trustee company as the plenary administrator of the young man's $6 million estate which consisted of funds paid in settlement of a claim for personal injuries he had suffered at birth.

Reasons for decision

Background

These reasons relate to decisions made by the Tribunal in respect of applications made for the appointment of a guardian for TJC (the represented person). The orders were made on the day of the hearing. The written reasons are provided pursuant to s 77 of the State Administrative Tribunal Act 2004 (WA).
At the time of the applications, the Tribunal also had before it an application for review by the Public Trustee of an administration order in respect of the estate of the represented person. The review of the administration order was concluded in September 2006 and reasons were published in December 2006. (See: TC [2006] WASAT 369)
The represented person is a young man aged 19 years. Many of the medical reports before the Tribunal were prepared for the purposes of a personal injuries claim for birth injuries he suffered which was settled on his behalf in 2004. The represented person is noted in the reports to have suffered "neonatal hypoxic ischaemic encephalopathy and subsequent cerebral palsy with a spastic left hemiplegia, epilepsy, and moderate intellectual disability". Until relatively recently his epilepsy is said to have been poorly controlled. The reports refer to profound impairments of adaptive behaviour, maladaptive behaviours including aggression, tantrums and absconding. Teeth grinding is noted. His communication skills are described as poor and a recent assessment by a speech pathologist suggests that his communication remains very impaired. The severity of his intellectual disability is described "as to render him in the longer term dependant on an adult for assistance with his daily living … tasks".
The represented person is the eldest of five children of his parents. A younger brother died in infancy. His father suffered significant injuries in a motor cycle accident when the represented person was a baby and apparently continues to suffer the effects of those injuries. The relationship between the parents of the represented person, from all accounts, has been difficult and they are now separated. The represented person lives with his mother, and brothers and sister in a country town in Western Australia. Some members of his extended family live in the town. His father and one brother live in country New South Wales, as does his grandmother and some other members of his father's extended family.
The parents of the represented person were married in 1987 and divorced in May 2005. There was a long period of separation when the mother left New South Wales with the children in late 1999 or early 2000 and lived in Western Australia until October 2005. It seems that the mother did not disclose her whereabouts to the father and the father and his extended family did not know where his children were living for some period of time.
In 2004, the represented person received a large sum in compensation for injuries he suffered at birth. In mid 2005, the funds were released following an order for the appointment of a trustee company as administrator of his estate.
A property was purchased by the administrator in a country town in Western Australia for the represented person. The represented person, his mother and siblings lived there until October 2005 when, following a visit to Western Australia by the father, the mother and children, including the represented person, moved back to New South Wales in an attempt to reconcile with the father of the children. The attempted reconciliation failed and the mother and children reportedly moved to a women's refuge in New South Wales and then later returned to Western Australia in mid 2006. The property which had been purchased by the administrator and in which the family had been living prior to the move from Western Australia had, by that time been sold, despite what was said to be the express instruction given by the mother that it not be.
Since returning to Western Australia and the applications made to the Tribunal, the represented person has commenced an alternative to employment programme and further social activities are planned for him. He has also since this time attended regular physiotherapy and speech therapy and has more recently attended an appointment with a neurologist to review his epilepsy. Further dental treatment is said to be planned for him in the near future. He is living with his mother and siblings in a rented house while an appropriate property is considered for purchase by the administrator. His main activities are said to be his attendance at the alternative to employment programme and family outings with his mother, siblings and maternal aunt and cousin.

Principles to be observed

In determining the applications for the appointment of a guardian for the represented person, the Tribunal must observe the following principles which are set out in s 4 of the Guardianship and Administration Act 1990 (WA) (GA Act):
1)the primary concern of the Tribunal must be the best interests of the represented person;
2)every person is presumed to be capable of looking after his own health and safety and making reasonable judgments about matters relating to his person until evidence satisfies the Tribunal to the contrary;
3)a guardianship order may not be made where there is an alternative means of meeting a person's needs that is less restrictive of his freedom of decision and action;
4)where an order is made, it must be in terms that impose the least restriction on the person's freedom of decision and action; and
5)the Tribunal must seek to ascertain as far as possible the views and wishes of the person concerned.

Applications

Cross applications are made by both the mother and the father of the represented person, each proposing themselves as guardian. The paternal grandmother also proposes herself as guardian. All the applications were heard together with an application for review of the administration order made by the Public Trustee. The guardianship applications were adjourned to allow for investigation by the Public Advocate. There were further adjournments at the request of the parties for further investigation by the Public Advocate and for submissions by the parties.
The mother states in her application that she should be appointed guardian so that there is certainty as to who has authority for decision‑making for the represented person; that without an appointment of herself as guardian, the represented person will be in limbo and in the event he visits New South Wales there will be no power to ensure that he is returned.
The father of the represented person initially proposed that he and the mother be appointed jointly as guardians to ensure that he can play a role in his son's life. Later he changed this and now states that he considers he should be appointed as sole guardian and that the represented person should be returned to live with him in New South Wales for six months of the year and with his mother in Western Australia for the other six months.
The paternal grandmother of the represented person proposes herself as guardian and that the represented person should either live in New South Wales with her or with paid carers arranged by her. She states that she was the represented person's primary carer for the first 12 years of his life, and that the mother has neglected him and that he needs a guardian for his protection.

Evidence and material before the Tribunal

In the course of hearing this matter, the Tribunal received considerable written material including medical and other professional reports, hospital files and submissions from the parties. The Tribunal also heard oral evidence from the applicant parents, the grandmother and from other witnesses, including the coordinator of the alternative to employment programme the represented person attends and a clinical psychologist who assessed both the mother and the represented person for the purposes of the application before the Tribunal.
The grandmother sought an adjournment prior to the final hearing on the grounds that records from a suburban police station in an area where the represented person lived in 2003 had not been obtained by the Tribunal. In a letter to the Tribunal received on 13 February 2007, the grandmother submits that she is disadvantaged in the presentation of her case without the production of the records that she had requested be obtained. She stated in that letter that:
"When I visited WA I saw that [the represented person] was suffering greatly and feel that others in the community may also have come forward and reported neglect to the police. Also police notes, after seeing [the represented person] on the road. Neighbours often see dreadful things and say nothing, but there is a chance someone acted responsibly and reported the neglect in an effort to help him."
Counsel for the mother opposed the adjournment on the grounds that the grandmother had opportunity to pursue the request prior to the late request for an adjournment, and that as there may be no records held by the police the adjournment and summons of any potential records could be a "wild goose chase" with no forensic merit. The Tribunal declined the application for the adjournment and determined that it would not seek production of records from the police. It accepted that there may be no records held and was not satisfied that reasons given by the grandmother for the production of any records went beyond a "fishing expedition" for material which may or may not have been in existence. Additionally, if we accepted that there were records of complaints made to the police regarding the represented person, the Tribunal considered that it had sufficient material from the Department of Community Development, medical practitioners and other sources to consider the allegations of neglect made by the grandmother. Even if the material, which the grandmother said could be provided from police records was available, it would not add to the information already before the Tribunal.
The material before the Tribunal includes:
•submissions from each of the applicants, including the original applications; a number of written submissions by the grandmother and from the father and affidavits filed on behalf of the applicant mother;
•statements from family members and friends of the mother and grandmother;
•reports from general practitioners who have treated the represented person; Dr SW, dated 28 June 2006, referring to the period up until June 2000; Dr KP, dated 11 February 2007, referring to the period March 2001 to December 2004; Dr JB, dated 26 July 2006; and Dr TH, the current general practitioner, dated 26 October 2006;
•a report from a clinical psychologist who assessed the represented person and his mother, dated 5 February 2007;
•a report from a consultant neurologist at Royal Perth Hospital, dated 18 January 2007;
•a copy of the Family Court terms of settlement, dated October 2002, relating to proceedings between the parents of the represented person for parenting orders and property adjustment;
•a letter from the Oral Health Centre of WA, dated 9 October 2006;
•a report from Community Access Coordinator, dated 26 October 2006;
•a copy of a letter to the Public Advocate from a social worker at the Disability Services Commission, dated 9 October 2006;
•a report of a speech pathologist dated 10 November 2006;
•a report from an occupational therapist, JD, dated 13 November 2006, of an assessment of the home environment of the represented person;
•a report from the treating physiotherapist dated 8 November 2006;
•a report from the Registrar of the New South Wales Local Court confirming the entry of a plea of guilty to the charge of assault on the mother by the father of the represented person on 19 June 2006;
•contact logs from the Department of Community Development of contact in 2004 and 2005, either with the represented person or with the grandmother of the represented person raising concerns about the represented person;
•a copy of the apprehended violence order made at the Local Court in New South Wales in October 2006 in which the defendant is the father and the protected person is the mother of the represented person;
•letters from a paediatrician and neurologist from Princess Margaret Hospital, dated 23 February 2004, 9 December 2003 and 28 May 2003;
•clinical Psychology Progress Notes for the period 16 September 2004 to 24 September 2004 submitted by the father on the day of the hearing;
•hospital records from regional hospitals in Western Australia and New South Wales; and
•reports from the representative of the Public Advocate prepared for the hearing of the applications.
In support of their applications, both the father and the grandmother make allegations about the care of the represented person by the mother. The father also expresses concern about the instability in accommodation of the mother over a period of years; in contrast, he states that his own housing has been stable for the entire period.
The grandmother makes a number of allegations regarding the conduct of the mother some of which relate to the care of the represented person both in the past while he was living in New South Wales and from her contact with him during visits to Western Australia and more recently when he was again living in New South Wales.
It is not necessary to repeat in detail all of these allegations for the purposes of these reasons. In summary, the matters which bear on these applications are that the grandmother alleges that the mother has neglected the represented person's health in that his dental care has been neglected to the extent that his teeth have "rotted" and he suffered pain, he has suffered cracked hands and feet, has acne, his diet was poor, the mother has been "uncaring" of him, she left him alone in the house, has allowed him to run away from home and has not reported him missing to the police, has not provided a safe environment, and allowed him to attend school at too early an age, which was damaging to him. The position of the grandmother is that the mother has not cared for the represented person properly in the past and that she continues to be unable to do so.

The father supports the allegations of the grandmother in relation to the neglect of the dental care of the represented person. He states that his contact with the represented person is limited and the mother has undermined his attempts to have regular telephone contact with all of his children, including the represented person. The father submits this is inconsistent with the consent orders for contact made in the Family Court in 2002.
In his submissions to the Tribunal, the father describes the past relationship with the mother as "on again, off again". The mother describes it as one characterised by domestic violence. In response to allegations by the mother that he was on a "cocktail of drugs" and that the children had witnessed violence from him, the father said that he considers that the mother "was the one that is violent" and that he is on medications such as "anti depressants and painkillers which make me very calm".
The father entered a plea of guilty to an assault on the mother in June 2006 in a New South Wales court but describes the assault on the mother as a "technical one" and that he had not punched her.
The father admits, in written material provided by him, to an assault on one of his children but denies assaulting the represented person as alleged by the mother. He states that he thinks another son was the culprit but that he "got the blame for it" (that is, an alleged assault on the represented person) and now has a "black mark against [his] name". An Apprehended Violence Order naming the father as respondent and the mother as the protected person was made in the New South Wales Local Court in October 2006 for a period of one year.
In the written material put before the Tribunal submitted by the father, he refers to correspondence between his doctor and his then employer that "he was not a drug addict and should not be treated like one". Material before the Tribunal submitted by the father confirms that he has been treated for depression.
In respect of his relationship with his own mother, the grandmother of the represented person, he states that he "detest[s]" her. He explains in his written submissions that this is because she would turn up unannounced and would disrupt the house and was "continuously hassling him over [the mother's behaviour] and still does". He said he goes into a deep depression when visited by his mother and that "just to speak [to her] on the telephone is a form of torture".
The evidence in relation to the contact between the represented person and his father is in dispute. The mother says telephone contact occurs in compliance with the terms of the Family Court consent order made in 2002 and that proposals have been made for block contact between the represented person and his father in Western Australia. In respect of this contact, the father states that there is no medical reason why he cannot travel but he is reluctant to travel to Western Australia because he is afraid of his former sister‑in‑law. This is not consistent with the submissions of the grandmother who submits that it is difficult for both her and the father to travel to visit the represented person for medical reasons.
The brother of the represented person, who lives with his father in New South Wales, appeared by video link before the Tribunal and said that both of his parents provide good care to the represented person.
A clinical psychologist who the Tribunal accepts as having expertise in the assessment of persons with intellectual disability, reports his assessment of the represented person and his mother. Both the father and the grandmother were invited to participate in the assessment but had not responded. The grandmother advised that she declined to participate in the assessment on the advice of her solicitor.
The evidence of the psychologist is based on an hour long interview with the represented person and his mother and a review of the written material submitted to the Tribunal.
The psychologist states that, in his opinion, the primary relationship of the represented person is the one with his mother.
In relation to the questions raised regarding the care of the represented person by the grandmother, he states that as with many other parents of children with disabilities the parents would have been working on a "trial and error basis" in his early years. He notes the mother concedes that she had made some mistakes in the represented person's early life and had missed appointments but she was attempting to balance the needs of the represented person with those of her other children.
The psychologist did not accept the proposition put by the grandmother that the represented person had been inappropriately placed in school, although this may have been the case in hindsight. He considers that the parents would have relied on advice given to them at the time and the school had accepted him, which suggested to him that the placement was considered appropriate at the time.
He describes the represented person as not having the intellectual capacity to understand the purpose or meaning of the assessment that had been undertaken. In the psychologist's assessment, the represented person is able to give spontaneous emotional feedback in an immediate sense to his surroundings but because of his intellectual disability is not capable of expressing where he wishes to live or understanding what such a decision involves.
The psychologist states that because of the developmental difficulties experienced by the represented person, his needs would best be met by a consistent, preferably "one to one" carer in a family situation. Less desirable would be paid carers, which would likely lack continuity.
The evidence of the clinical psychologist is challenged by the grandmother who submits that one hour is insufficient to assess the represented person and that the clinical psychologist is disadvantaged in making the assessment as he does not know the represented person.
The Tribunal obtained extensive health records of the represented person both from the hospitals where the represented person was treated prior to his move to Western Australia, and from hospitals and health services in Western Australia. The records included case conference notes and referrals for services, and assessment in relation to the management and care of the represented person's health by his family.
There are references to missed appointments and breakdowns in communication between health care providers and the family. The grandmother was, according to the files and her own evidence, heavily involved in the represented person's attendance at medical appointments and often stayed with him when he was admitted to hospital.
There is a reference to the ceasing by the family of anti‑epileptic medicine in 1997 which was considered to have contributed to the represented person's fitting at that time, and to non‑compliance or lack of adherence to medication regimes and lack of engagement with services, such as speech therapy and physiotherapy. There is a reference to a painful burn suffered by the represented person while he was in the care of his grandmother which became infected and required skin grafts when he was about 3 or 4 years of age.
A report from a general practitioner from New South Wales, dated 28 June 2006, refers to the period up until June 2000. The doctor states that the represented person was "well known to me up until that time" and "I was his regular general practitioner and I looked after his health in the usual manner" the doctor goes on to say "[h]e struck me as being well looked after by his parents". Another report from a general practitioner from Western Australia, Dr KP, states that he had seen the represented person 14 times between March 2001 and December 2004. He notes that the mother was a "caring person" and that he "had no concerns about the standard of care" of the represented person. He noted that the house in which the family had lived had been next door to the surgery and he had seen the represented person frequently. He notes in his letter, "I often mused that, although bringing him [up] would perforce be a huge challenge he was well cared for".
It is alleged by the father and grandmother that the mother neglected the dental health of the represented person in the years following her arrival in Western Australia. The father's submission refers to missed appointments with the dental services of the Disability Services Commission in the year 2000. He states that he became aware of this during a visit to Western Australia when he took the represented person to the dental service in 2003. A report, dated 9 October 2006, from the Oral Health Centre refers to an assessment in November 2004 of "numerous dental problems" and treatment of the represented person under a general anaesthetic in January 2005. The report refers to previous contact with Disability Services Commission (Dental Services).
A report from a speech pathologist, dated 10 November 2006, notes that the represented person's speech is unintelligible to unfamiliar listeners. It is not clear from the material before us the extent, if any, of speech therapy that the represented person has received since he left school. Certainly in the early material before the Tribunal, the mother is said to have identified his communication disability as her primary concern.
The Tribunal also considered correspondence from doctors at Princess Margaret Hospital (PMH), specifically a letter in December 2003 to the general practitioner from a neurologist at PMH, which notes that urgent assistance is required with in‑home and out‑of‑home respite and a behaviour management program for the represented person because of his "violent and difficult behaviour", and a referral from PMH to Royal Perth Hospital (RPH) for review of the represented person's epilepsy made in January 2004. In February 2004, doctors at PMH wrote again to the general practitioner noting that following the involvement of the Disability Services Commission, the behaviour of the represented person had improved and the degree of aggression had reduced, but that "wandering was still a problem". The letter notes that the represented person was "well supported at the [Special] School" where he attended.
The Tribunal heard at the final hearing that the appointment with the consultant neurologist at RPH had occurred in January 2007.
The mother of the represented person states that in the early life of the represented person the family faced many difficulties, including financial, health and other problems. In addition, she experienced difficulties with her former husband's behaviour. She states that the grandmother had been involved in the care of the represented person and had taken him to appointments. Her evidence is that the grandmother was unwilling to care for the other younger children so that she could attend appointments and preferred to accompany the represented person. She denies that the grandmother was his primary carer during this or any other period. The mother's evidence is that the grandmother arranged appointments and presented herself as the legal guardian of the represented person to the extent, at least on one occasion, that the mother could not obtain information about the treatment from a dentist. The medical files from the New South Wales hospital contain references to the grandmother presenting the represented person for treatment and the possible conflict or lack of consistency in the care of the represented person within his family.
The grandmother is also said, by the mother, to have opposed the use of anti‑epileptic medication due to side effects and to have intervened in treatment proposed by a dentist for the represented person.
The mother said that in the years between 2000 and 2005, while living in Western Australia, she had little family support when living in Perth and had considerable difficulty managing the represented person's behaviour. Two medical reports completed in 2002 note that the represented person exhibited significant challenging behaviours such as running away, temper tantrums, inability to follow directions and self‑stimulatory behaviour such as teeth grinding which support this evidence. The reports from PMH in 2004 referred to above also relate to this period.
The mother of the represented person concedes that he missed two appointments for dental treatment. She states that she sought assistance in 2004 from the Disability Services Commission to manage his behaviour and that this helped. Counsel submits that it had not been established that the dental care of the represented person had been neglected and that the clinical psychologist noted that it was not unusual for disabled people to have dental problems.
In response to the delay between the referral to RPH to a neurologist for management of his epilepsy in 2003 and the represented person's eventual attendance in January 2007, the mother states that during this period she was travelling to New South Wales for the represented person's compensation case and this had placed considerable demands on her. The delay in taking up the referral also includes the period from October 2005 to July 2006 when she attempted to reconcile with her former husband. She states that since her return to Western Australia in July 2006, the dental treatment of the represented person "was back on track" and appointments were to be made later in the year for an oral surgeon for further cosmetic work on the represented person's front tooth. She states that the represented person attended the neurologist at RPH in January 2007 and a further appointment is planned. She considers the represented person's epilepsy to have stabilised on new medication prescribed and that he "goes through phases" in relation to fitting. She states that when he is tired, he may have small fits and she has advised his day placement carer of this.
In relation to the attempt to reconcile with the father of the children in October 2005, the evidence of the mother is that this occurred at relatively short notice following the visit of the father to the country town in which the family lived in Western Australia and her view that the father had "calmed down" and "said he was off the drugs".
She states that the decision to move back to New South Wales was at the insistence of the father despite her own misgivings about this option and that she had "just set up" the house which had been purchased by the administrator with funds of the represented person. Her evidence is that the move back to New South Wales further disrupted appointments made for review of the represented person's epilepsy and his dental treatment, and that "nothing happened over there". The sale of the property in Western Australia by the administrator, which the mother says occurred against her express instructions, is said, by the grandmother, to have resulted in a loss to the represented person's estate.
The mother submits that since the family moved back to Western Australia, a number of services have been engaged for the represented person, including an alternative to employment programme which he attends twice weekly. Material submitted to the Tribunal confirms this to be the case. The recreation officer from the programme states that the represented person enjoys the activities arranged, "was always smiling", and that he is a valued member of the group and had formed friendships "in his own way". She states that the mother is open, cooperative and appropriate in her dealings with her.
A report of an occupational therapist prepared at the request of the Public Advocate, dated 13 November 2006, reports that following a home assessment the current accommodation of the represented person with his mother and siblings is appropriate.

Capacity

Section 43(1)(b) of the GA Act provides that before the Tribunal can appoint a guardian, it must be satisfied that the person for whom an order is sought is:
"(i) incapable of looking after his own health and safety;
(ii)unable to make reasonable judgments in respect of matters relating to his person; or
(iii)in need of oversight, care or control in the interests of his own health and safety or for the protection of others; ..."
There were a number of medical reports before the Tribunal referred to earlier in these reasons. More recent reports received from the general practitioners treating the represented person state that, in their view, he is incapable of making reasoned decisions about his living situation and his personal health care. The evidence of the psychologist at the hearing confirms this to be the case. No one took issue with this evidence.
Based on all of the medical and other professional reports before us, we find that as the represented person is a person for whom all three of the paragraphs in s 43(1)(b) apply, he is therefore a person for whom a guardianship order can be made.

Need

Before the Tribunal can appoint a guardian for the represented person, it must be independently satisfied that there is a need for a guardian (see s 43(1)(c)), and that the needs of the represented person cannot be met by other means which are less restrictive of the represented person's freedom of decision and action.
Both the parents and the grandmother submit that there is a need for the appointment of a guardian and the Public Advocate also supports the need for the appointment of a guardian.
The areas identified by the parties and by the Public Advocate for decision‑making by a guardian are; where and with whom the represented person should live, the health care and services to which he should have access, and the contact that he should have with others.
The Public Advocate's representative (the Public Advocate) submits there is a history of problematic engagement with services for the represented person and that while the mother has been cooperative in engaging services and dental care, and ongoing management of the represented person's epilepsy since the applications had been initiated in the Tribunal, these arrangements are relatively recent. The submission is that to ensure ongoing services for the represented person there should be an impartial authority, the Public Advocate, to make decisions on health care and services for him.
The Public Advocate also recommends that a case manager be engaged to coordinate services in line with a recommendation made in a report prepared for the represented person's compensation claim.
The Public Advocate also submits that an independent guardian should be appointed to decide where the represented person should live, given the conflict between the parties and the competing proposals of the parents and the grandmother. The representative of the Public Advocate submits that a further report in relation to the appropriateness of the current accommodation of the represented person should be obtained and that in coming to a decision about where the represented person should live, the Public Advocate will take into account the consent orders made in the Family Court in 2002 and the outcome of the father's application to vary those orders. A representative of the Public Advocate did not recommend that the current care arrangements be changed.
The Public Advocate submits that plenary authority should be granted to the Public Advocate as guardian to ensure that any contact arrangements can be enforced; including the recovery of the represented person from New South Wales should the terms of any contact arrangements not be honoured.

Findings

We consider that the evidence before us establishes that the represented person's family have experienced significant difficulties both as a result of the disabilities and behavioural problems he experiences but also because of the extent of the family conflict, and the health, financial and other personal pressures on them. The effect of this has been that there have been periods in his life when it appears the needs of the represented person have not been met, including essential health care. This is apparent taking the evidence of the New South Wales Regional Hospital file as a whole and more recently in the delay in specialist follow‑up of management of his epilepsy and provision of dental care.

It is noted that up until 2000, he was primarily in the care of both parents although we accept that his grandmother played an important role in providing respite care and assistance in attending medical appointments with the represented person.
In the period from 2000 until late 2005, while he was in the sole care of his mother, the medical records show that there was a gap in the specialist management of the represented person's epilepsy and missed appointments for his dental care between 2002 and 2004. The mother concedes that this was the case.
Against this, is the evidence of the general practitioners in both Western Australia and New South Wales who provided his regular care over this period. Both doctors support the role played by the parents in each case as providing appropriate care for the represented person.
It is also apparent from reports before the Tribunal that there have been occasions when the represented person wandered away from home. We do not have any evidence that the mother failed to take steps to find him or did not report him missing.
Whilst there was involvement by child welfare services in New South Wales in the early life of the represented person, and the grandmother raised concerns about the care of the represented person with the Department of Community Services in Western Australia, there is no evidence of any statutory intervention in respect of the represented person provided to the Tribunal. The Disability Services Commission was providing services to the family from 2004 and it is said that school was also providing support. From this we infer that there was some monitoring of the family and the care of the represented person by agencies who are located in Western Australia and in a position to assess his situation.
While we conclude that the represented person may not have had all the services which had been identified as necessary for his development it cannot be said, based on all of the evidence, that his health and personal care were neglected by the mother in the way alleged by the grandmother. The grandmother appears, in her submissions to the Tribunal, to lay all the failures in the provision of services at the feet of the mother describing her as a negligent parent. Again we accept the explanation of the mother that the combination of the problems experienced by the family led to a number of difficulties, and this had the consequence that for some periods of time important needs of dental care and monitoring of the epilepsy were not attended to appropriately. We accept that, with assistance, the mother has now been able to arrange for services for her son and that these are now in place.
Of concern is that the mother moved back to New South Wales in 2005 despite her own misgivings about this and in the knowledge, she says, of a history of domestic violence against her and her children by the father. By this move, she would lose the family support on which she said she had come to rely. Although we accept this decision was motivated by her wish to reconcile with the father of her children and is against a background of considerable difficulties she faced as a sole parent, especially with the management of the care of the represented person, it had a negative impact on the represented person and on his estate.
The Tribunal is satisfied that the current services, including medical treatment, recreational activities, dental treatment and allied therapies are meeting the needs of the represented person.
His accommodation is presently stable and while we acknowledge the concerns raised by the Public Advocate of the apparently impulsive move to New South Wales, we consider, at present, the need for accommodation is met by the mother of the represented person and note the report of the occupational therapist to this effect.
The involvement of the grandmother, while well‑intentioned, appears to have caused ambiguity, at least historically, as to who had authority to consent to treatment for the represented person. Her insistence that she was the primary carer for the first twelve years of the represented person's life, a position not supported by either the mother or the father, suggests that she did play a significant role in his care and this may have contributed to this ambiguity.
The animosity between the represented person's grandmother and mother is clearly evident from the material submitted to the Tribunal by the grandmother, and appears to the Tribunal to predate the birth of the represented person. Throughout the hearing process, the grandmother made attacks on the character of the mother and on her role as a parent. In her written submissions to the Tribunal, she minimised the incident of domestic violence which her son admits and did not, in our view, acknowledge any of the difficulties which the family experienced other than by way of making a further criticism of the mother.
The evidence of the clinical psychologist, the occupational therapist and the recreation officer is at odds with the allegations made by the grandmother of continuing neglect of the represented person by his mother. While we accept that their contact with the represented person has been limited, we prefer this evidence to that of the grandmother. The grandmother's concerns about the past delays in dental treatment of the represented person may be justified, but the other general allegations made by her of ongoing neglect are not supported by the evidence, particularly as the grandmother can have had no direct knowledge of the represented person's day‑to‑day care by the mother for considerable periods of time. Her continued assertion of these allegations appears to the Tribunal to be a reflection of her fixed beliefs about the mother.
The role played by the grandmother in the life of the represented person springs from a concern for him but the level of her antagonism to the mother appears to have had the effect of alienating both his parents from her.
The Tribunal is satisfied that, given the history of conflict, there is no less restrictive means of ensuring the particular needs of the represented person are met, other than the making of guardianship orders.
Those needs include certainty about where he should live, to decide the contact he should have with his family in New South Wales, to determine his access to, and to give consent for, medical treatment and services including dental treatment.
The Tribunal does not consider that the contact can be managed by the mother as proposed by counsel. We accept the submission that maintaining telephone contact at a distance may have practical difficulties even where there is goodwill on both sides. This is not the case here. Whatever the reason for the father's unwillingness to travel to Western Australia to have contact with his children or the difficulties he has experienced in maintaining telephone contact with the represented person, the question of the contact the represented person has with others, needs to be managed independently of his family.
In light of the ongoing conflict between the parties, guardians with formal authority are required to determine the living and care arrangements of the represented person and to ensure his best interests are considered when any contact arrangements are made.

Wishes of the represented person

The evidence before us from the psychologist is that the represented person 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 the wishes of the represented person in relation to the appointment of a guardian.

Appropriate appointment

Unless she is appointed jointly with another person, the Public Advocate may not be appointed unless the Tribunal makes the finding that there is no other person who is suitable and willing to be appointed guardian (s 44(5) of the GA Act).
The Public Advocate's representative did not support a joint appointment of the Public Advocate with any party, submitting that decision‑making might be compromised because of the level of conflict and the opposing views of the parties regarding where the represented person should live.
The Tribunal considered that an appointment of the mother, together with the Public Advocate, may be the appropriate appointment. Because of the requirement that joint guardians act unanimously, we considered that this could provide the certainty about the engagement of services which the Public Advocate's representative submits is required. A joint appointment would also ensure that the represented person remained living in Western Australia, and engaged with the services and activities which are currently in place or that any proposal to change that arrangement would likely come back before the Tribunal. Such an appointment may also have had the effect of supporting and encouraging the mother in the guardianship role of her adult son given the access she would have to the expertise and assistance of the Office of the Public Advocate.
The consent of the Public Advocate is not required in such a case, however, the Tribunal did consider the opposition of the Public Advocate to a joint appointment and on balance considered that the appointment of the mother as sole guardian to determine where the represented person should live and to consent to services on his behalf was the least restrictive one which would meet his needs. While we do accept that there have been real concerns about care arrangements in the past, taking all of the evidence as a whole and considering the present circumstances of the represented person and the mother's proposals for his future care, we do not consider that a finding that the mother is not suitable for appointment is made out.
A plenary authority as proposed by the Public Advocate's representative is not appropriate, in our view, because we consider that limited orders meet the needs of the represented person. Based on the proposals of the mother for the care of the represented person and her appointment with the necessary authority to facilitate these services, along with the limited authority of the Public Advocate to determine contact with the family in New South Wales, we consider that the issues which have been identified as requiring the authority of a guardian are addressed by the two limited orders.
In relation to the enforcement of the authority of the guardians in New South Wales, it is open for the guardians to seek recognition of the orders made in Western Australia in the Guardianship Tribunal of New South Wales under the Guardianship Act 1987 (NSW).
The proposal by the father that he be appointed guardian is not accepted by the Tribunal. His contact with the represented person on his own evidence has been limited. There are many reasons for this, including his lack of knowledge of the whereabouts of his son after the move to Western Australia. He states he has ongoing health problems which suggest to the Tribunal that his proposal that he have the full time care of the represented person may be beyond him. There is now a restraining order against him in relation to his contact with the mother and primary carer of the represented person. His proposal that the represented person live six months of the year with him in New South Wales and six months with the mother is not supported by the psychologist who, in his expert opinion, says that this would lack stability for the represented person and would cause difficulties in his adjustment to his environment. We accept this to be the case on this evidence and having reviewed the numerous medical and other professional reports submitted to the Tribunal.
The proposal by the grandmother that she be appointed guardian is also not accepted by the Tribunal. Her proposals for the care of the represented person in New South Wales are not considered appropriate. We believe that she is concerned for her son and for her grandson, however, the animosity to the mother is evident from her numerous written submissions and in her evidence before the Tribunal. It appears to the Tribunal that she is unfortunately alienated from both parents of the represented person. We do not consider that she would give adequate weight to the importance of the relationship of the mother or his siblings in the life of the represented person.
The evidence she gave in relation to her relationship with her son in support of her application was contradicted by the son and only reinforces the extent of the conflict in the relationships and the need for formal authority to manage the needs of the represented person.

Orders

1.The applicant be appointed limited guardian of the represented person with the following functions:
(a)To decide where the represented person is to live, whether permanently or temporarily;
(b)To decide with whom the represented person is to live;
(c)Subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990, to consent to any treatment or health care of the represented person; and
(d)To determine the services to which the represented person should have access.

2.The Public Advocate be appointed limited guardian of the represented person with the following function:
(a)To determine what contact, if any, the represented person should have with others and the extent of that contact.

3.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.
4.This order is to be reviewed by 26 February 2008.

I certify that this and the preceding [101] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS F CHILD, MEMBER