AKL [2020] NSWCATGD 78

NCAT Guardianship|2020-08-26

GUARDIANSHIP APPLICATION AND FINANCIAL MANAGEMENT APPLICATION

Background

AKL, aged 19 years, has been diagnosed with autistic spectrum disorder Level 3, moderate to severe intellectual disability (level 4 ASD), obsessive compulsive disorder, anxiety and epilepsy with ongoing seizures. AKL is reported to have delayed learning in all areas, to have difficulty with social interaction and to require supervision for self-care and the activities of daily living. AKL receives support services from a not-for-profit service provider.
AKL lives in regional NSW with his father RZL, who is his primary carer. His mother, QNT, lives separately. QNT and RZL were divorced in 2016.
On 27 May 2020 the Tribunal received from RZL an application which sought the appointment of a financial manager for his son AKL.
On 29 July 2020 the Tribunal received from QNT an application which sought the appointment of a guardian for her son AKL.
The purpose of these proceedings before us at Sydney was to conduct a hearing of each of those applications. The hearing was conducted by telephone. Members Williams and Bullock participated remotely.
Our tasks in respect of each application were as follows: 1. In relation to the guardianship application, we had to decide whether or not to make a guardianship order for AKL and if an order were to be made the identity of the guardian, the guardian's functions and authorities, any other conditions of the order and its duration; and 2. In relation to the financial management application, we had to decide whether or not to grant the application and to make a financial management order for AKL. If an order were to be made we had to decide whether any person would be appointed as a private financial manager or alternatively whether the management of AKL's estate would be committed to NSW Trustee and Guardian. We also had to determine any conditions or limitations would apply to the order. 3. We decided: 4. in relation to the guardianship application, to consent to the withdrawal of the application by the applicant, QNT, and to dismiss the application under s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW); and 5. in relation to the financial management application, to make a financial management order for AKL under which the management of his estate was committed to NSW Trustee and to require the order to be reviewed by the Tribunal within 12 months. 6. These are our reasons for those decisions.

Parties, participants and statutory provisions

Appendix A to these Reasons identifies the parties to each application and the participants in the hearing [Appendix removed for publication.]. Appendix B sets out the principal statutory provisions we have referred to [Appendix removed for publication].

Absence of AKL

We seek to hold our hearings in a way which promotes the participation of the person who is the subject of the application or review and we do our best to obtain the views of the subject person whenever possible. Where we are able to obtain the subject person's views we take them into consideration in exercising our functions under the Guardianship Act 1987 (NSW).
At the commencement of the hearing it was apparent that AKL was not a participant.
AKL's parents were of the view that because of his diagnosed disabilities and his ongoing cognitive difficulties, he would not understand the nature of these proceedings or the issues which we had to determine and that any attempt to require or to encourage him to participate, for example by telephone, would cause him some distress and anxiety. Such a conclusion was supported by the medical and clinical assessment reports we had received. There were no opposing views. We accepted that conclusion as reasonable. We were satisfied that in the circumstances it would impose unnecessary and unreasonable burden for AKL to be required to participate in the hearing.
We also took into account that Ms Jill Hill of Counsel had been appointed as AKL's Separate Representative and would participate in the hearing in that capacity.
We excused AKL from participation.

Settlement discussions and terms

Following our preliminary discussion of the guardianship application with the participants, it emerged that QNT and RZL were prepared to discuss their differences on the central issues raised in the application, with an effort to reaching a suitable settlement of those issues. The central issues appeared to be access by AKL to each of his parents and communication between them.
The Separate Representative, Ms Hill of Counsel, agreed to facilitate these discussions, with the participation of Mr Timothy Lynch, Solicitor, as the Legal Representative of RZL.
Following discussions between those parties, which extended over a period of approximately one hour, Ms Hill informed us that the parties had reached a compromise on the identified issues and that the terms of that compromise had been reduced to writing by Ms Hill ("the Terms of Settlement"). Ms Hill read to us her note of the Terms of Settlement. A transcript of what she read to us is set out in Appendix C to these Reasons [Appendix removed for publication].
On the basis of the Terms of Settlement the applicant QNT sought to withdraw the guardianship application.

Consent to withdrawal and dismissal of the application.

Any request for withdrawal must be consented to by the Tribunal. In order to consent we must be satisfied that the subject person's welfare and interests will not be adversely affected by the withdrawal and the consequent dismissal of the application.
We heard from Ms Hill and Mr Lynch as to the Terms of Settlement and their implementation. We adjourned briefly to consider whether we would consent to the withdrawal of the application. Ultimately we were satisfied that AKL's welfare and interests would not be adversely affected by withdrawal and the dismissal of the guardianship application, given the agreement between his parents reflected in the Terms of Settlement
It followed that we should consent to the withdrawal and formally dismiss the application under s 55(1)(a) of the Civil and Administrative Tribunal Act.
We ordered accordingly.

Statutory issues for determination

By operation of s 25G of the Guardianship Act, we may only make a financial management order for AKL if we are satisfied that: 1. he is incapable of managing his affairs; and 2. there is a need for another person to manage his affairs; and 3. it would be in his best interests for a financial management order to be made.
The relevant time for considering whether a person is incapable of managing his or her affairs is not merely the day of hearing but the reasonably foreseeable future: McD v McD (1983) 3 NSWLR 81, [86]; Re W and L (Parameters of Estate Management Orders) [2014] NSWSC 1106 at [20].
If those three issues are satisfied then a financial management order will be made for AKL. The remaining issue is who should be appointed as his financial manager.

Incapability

We reviewed and relied upon the following expert reports in relation to AKL's capability of managing his affairs: 1. a report dated 29 March 2017 from Mr Z, Psychologist and School Counsellor at a special education school; 2. a short report dated 11 April 2018 from Dr Y, Consultant Paediatrician; 3. an occupational therapy assessment report dated 1 July 2019 from Ms X; and 4. a Behavioural Assessment Report dated 24 April 2020 by Ms W, Provisional Psychologist at a community service provider.
We considered that documentation in conjunction with a review of AKL's National Disability Insurance Scheme Plan dated 15 April 2019 and an attached Support Plan from the not-for-profit service provider.
We understood the professional observations and opinions contained in those reports and related documentation to be uncontested by AKL's parents.
On that basis we were satisfied that at present and for the reasonably foreseeable future, AKL was unable to make or implement decisions about his own person and property, his capital and income in a reasonable rational and orderly way, with due regard to his present and prospective wants and needs, without undue risk of neglect, abuse or exploitation. That is the well-known test for incapability of managing one's affairs as propounded by Justice Lindsay of the Supreme Court of NSW in two of the leading cases on the subject, P v NSW Trustee and Guardian [2015] NSWSC 579 at [307]-[308] and CJ v AKJ [2015] NSWSC 498 at [27] and [53].
We found that AKL is incapable of managing his affairs.

Need and best interests

The next issues, which, although they are distinct, can conveniently be considered in conjunction, are whether there is a need for another person to manage AKL's affairs and whether it would be in his best interests for a financial management order to be made. We must be satisfied as to both issues before we can make an order.

Uncontested facts in relation to these issues

The following background facts relevant to consideration of the remaining issues appear to be uncontested. 1. A deed dated 5 June 2012 ("the Trust Establishment Deed") established The AKL1 Family Trust, which was later known as The AKL2 Family Trust ("the Family Trust"). The Trust Establishment Deed was amended by a further deed dated 17 June 2015 ("the Trust Amendment Deed") under which QNT (described in the Deed as "QNT") as Appointor under the Trust Deed, removed RZL as the Trustee and that change was acknowledged by AKL. (The Tribunal was given a copy of the Trust Amendment Deed but not of the Trust Deed). 2. By operation of clause 4 of the Trust Amendment Deed, QNT as Appointor and New Trustee released and discharged AKL as the Original Trustee from, and indemnified him against, all claims against him arising out of his administration of the Family Trust. 3. QNT remains the Trustee of the Family Trust. 4. At all relevant times AKL was a beneficiary of the Family Trust. 5. The income from the Family Trust was fully paid out each tax year up to and including 2018, to cover the costs of the family, including AKL. 6. It is asserted on behalf of RZL and apparently not contested that distributions of income from the Family Trust to AKL were recorded in the trust's accounts for at least tax years 2013 to 2018. However for subsequent tax years, no income from the Family Trust was paid or applied for the benefit of AKL. 7. AKL applied for the disability support pension ("DSP") in May 2019, shortly after his 18th birthday. By a decision on 23 August 2019, confirmed on review on 30 September 2019, Centrelink refused the DSP on the ground that a family discretionary trust (that is, the Family Trust) had declared an income distribution to AKL for the 2018 tax year for $66,077 (and apparently a further distribution for the 2019 tax year), with the result that his income exceeded the threshold beyond which no benefit is payable. The notice of review confirmed that: "The distribution income is assessed to ([AKL]) regardless of whether (he) physically received it or not." 1. By a resolution dated 11 October 2019 QNT as Trustee of the Family Trust purported to distribute trust income to Mr U and further resolved: "…THAT, for the avoidance of doubt, in respect of any payments that have actually been made by the Trustee to the benefit of…any other Beneficiary of the Trust during the year ended 30 June 2018, the making of the payment did not constitute the making of a Distribution by the Trustee unless the payment was expressly recorded by resolution of the Trustee as constituting a Distribution…" 1. An administrative review of Centrelink's decision referred to at (7) was sought through an application to the Administrative Appeals Tribunal ("AAT"). Those proceedings seem to have been initially unsuccessful, with the AAT deciding on 11 December 2019 to dismiss the application for review. However orders were subsequently made by consent on 20 May 2020, setting aside the earlier AAT decision and declaring that there was no trust distribution from the Family Trust in the 2018 and 2019 tax years. The decision concerning AKL's entitlement to the DSP was remitted to Centrelink (Services Australia) for reconsideration. The result of that reconsideration appeared to be unknown at the date of our hearing.

The positions of the relevant parties and the Separate Representative

QNT
In her written submissions QNT agreed that her son AKL "…needs an appropriate person to manage his financial affairs".
She further contended in those written submissions and at the hearing that the income of the Family Trust was fully distributed in each financial year up to and including 2020, but the trustee had determined not to make any distribution to AKL in 2019 or 2020 to avoid any adverse effect on his Centrelink entitlement and that AKL does not have any unpaid present entitlement to a distribution or advance from the Family Trust.
However at the hearing we understood QNT to contend that there were no substantial issues remaining unresolved in respect of the distributions from the Family Trust and there may be no substantial decision needed from a financial manager. We assumed that QNT based that position on her understanding that the DSP would be ultimately restored, following the referral of that question back to Centrelink in the AAT's orders of 20 May 2020.
We also understood her to contend that even if we ultimately decided to make a financial management order, her former husband RZL was not suitable for appointment as financial manager. In that regard she asserted that he may well have a conflict between his personal interests and his obligations as financial manager because he had previously been the trustee of the Family Trust and had received personal distributions from that trust.

RZL
Mr Timothy Lynch, as Legal Representative, made substantial oral submissions on behalf of AKL. In his contention there were substantial currently unresolved issues arising out of the administration of the Family Trust and that in particular, these involved AKL's beneficial entitlements to advances or distributions from the trust. Mr Lynch referred us to the High Court decision in Fischer v Nemeske Pty Ltd [2016] HCA 11 (6 April 2016); 257 CLR 615 in support of the proposition that a trustee's resolutions to make a distribution create an enforceable legal right to that distribution and that (at least in most cases) that right is not defeated by any subsequent resolution of the trustee purporting to reverse it.
We understood Mr Lynch to concede that otherwise AKL's estate was not a large or complex one. But he emphasised the importance of preserving AKL's right to enforce payments of advances or distributions from the Family Trust.

The Separate Representative, Ms Hill
Ms Hill's position was that unless there were substantial prospects of successfully enforcing payments from the Family Trust for the benefit of AKL, then his estate appeared to be a simple one and, particularly if the DSP were available to him there may be no need for the appointment of a financial manager. We understood Ms Hill to concede that it may be possible that there are reasonable prospects of enforcement of AKL's entitlements under the Family Trust, but that she had not investigated that possibility.

The Section 4 Principles
In deciding whether there is a need for us to make a financial management order for AKL and whether the appointment for him of a financial manager would be in his best interests, we are of course bound by the principles which are set out in s 4 of the Guardianship Act. For convenience of reference, the principles are set out in Appendix B to these Reasons [Appendix removed for publication].
We had unfortunately been unable to obtain AKL's own views, but of the remaining principles in s 4 of the Guardianship Act, those which appeared to be most relevant here are the importance of preserving AKL's family relationships, the need to ensure his protection from any neglect abuse or exploitation, the need to encourage him, as far as possible, to live a normal life in the community and to be self-reliant in matters relating to his personal, domestic and financial affairs and the paramount principle set out in paragraph (a) of s 4 of that Act, which requires us to ensure that the welfare and interests of the subject person are given paramount consideration.

The protective element
Recent Supreme Court cases have emphasised that in considering a financial management application we are exercising protective jurisdiction.
In H v H [2015] NSW SC 837 at [29] and [33]-[34], Lindsay J spoke of the jurisdiction being exercised as being purposive and protective in nature. Significantly, His Honour noted that the statement of general principles in relevant legislation is consistent with the pre-eminence of that protective element. He referred to the "welfare principle" embodied in s 39(a) of the NSW Trustee and Guardian Act 2009 (NSW) and in s 4(a) of the Guardianship Act to the effect that the welfare and interests of the subject person should be given paramount consideration. In G v G [2016] NSWSC 511 at [10], Lindsay J emphasised that in considering what order should be made a tribunal must be mindful of the protective purpose of the jurisdiction; and in light of that protective purpose, of the need to ensure that whatever is done, or not done, by us is in the interests and for the benefit of the subject person as a person in need of protection.
Lindsay J confirmed these principles more recently in SLJ v RTJ [2017] NSWSC 137 at [24]-[25].

CONSIDERATION: NEED AND BEST INTERESTS

The starting point for our consideration of these issues is that it is beyond the scope of these proceedings to decide the validity (or even the prospects of a successful pursuit and enforcement) of any claim on behalf of AKL for advances or distributions from the Family Trust.
In considering the matter, we have taken into account the fact that there remains some degree of uncertainty as to whether Centrelink has yet made a final decision on the availability of the DSP. Ms Hill indicated that she believed that the DSP was being paid but there was no other confirmation and ultimately no certainty on that point. But even if the DSP were now readily available, the amounts involved in the distributions or other advances resolved by the trustee of the Family Trust to be made to AKL but purportedly revoked is substantial. For example it seems uncontested that the proposed distribution for the 2018 tax year was $66,077.
We have considered the High Court's judgment in Fischer v Nemeske, which was relied upon by RZL. (See [37] above).
It seems to us that the situation regarding the making and subsequent purported revocation and declarations of "no effect" concerning distributions from the Family Trust to AKL is, in at least general terms, similar to the situation in Fischer v Nemeske.
We are comfortably satisfied that: 1. there are unresolved issues of some substance here; 2. it is clearly in accordance with AKL's best interests for those issues to be resolved without undue delay; 3. those issues cannot, given the present differences between AKL's parents on these matters, be resolved informally; and 4. accordingly, they need to be resolved by a third party, who is granted sufficient authority to obtain appropriate legal advice and perhaps accounting assistance on the issues.
Such a resolution can only be achieved by the appointment of a financial manager for AKL.
It followed that there was a need for a financial management order and that it was in AKL's best interests for a financial manager to be appointed.

Identity of the financial manager

Our normal practice, where this is appropriate and it is in the best interests of the protected person, is to investigate whether there is a private person such as a family member or close friend who is suitable for appointment as financial manager before we consider committing the management of the estate of the subject person to NSW Trustee. That approach was approved in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227.

The parties' positions and views of the Separate Representative

AKL's father RZL confirmed that he wished to be considered for appointment as financial manager.
QNT was strongly opposed to AKL's appointment as noted at [36] above and suggested that if we were to make a financial management order the conflict between the parties and what she asserted to be AKL's conflict of interest made it necessary for the management of AKL's estate to be committed to NSW Trustee and Guardian.
The Separate Representative, Ms Hill, supported the commitment of management of the estate to NSW Trustee and Guardian on the basis that independent assessment was needed as to the prospects of any recovery on AKL's behalf from the Family Trust, but more particularly because the appointment of a family member would have a clear adverse effect on AKL's family relationships and would not, for that reason and generally be consistent with his welfare and interests.

Section 4 principles
The principles set out in s 4 of the Guardianship Act (set out in Appendix B to these Reasons [Appendix removed for publication]) apply to our consideration of the identity of the financial manager. The principles which appeared to be most relevant to this issue are the need to encourage AKL, so far as possible, to live a normal life in the community and to be self-reliant in his financial affairs and the need to protect him from any neglect abuse or exploitation. The further factor which is clearly relevant is the need to preserve AKL's family relationships.
We are also bound by the paramount principle which is to give paramount consideration to AKL's welfare and interests.

General suitability criteria
Before appointing a private person as financial manager we must be satisfied that the person seeking appointment is willing to act and is suitable for appointment.
Apart from our obligation to apply the s 4 principles of the Guardianship Act, the relevant legislation does not prescribe criteria for determining a potential manager's suitability for appointment, but Lindsay J of the Supreme Court of NSW suggested guidelines for this purpose in M v M [2013] NSWSC 1495 at [50(e)-(i)].
Consistently with those guidelines, we normally enquire as to whether any proposed financial manager: 1. is reasonable familiar with the subject person's estate; 2. has a reasonable level of understanding of how to deal with and account for other people's money. This can usually be demonstrated through their having held a relevant position in a business (including as an owner or employee), or in a not-for-profit organisation such as a school or other educational institution, an industry association or trade union, or a community or sporting club or association. In some cases this can be satisfied by demonstrating substantial experience in relation to the subject person's own affairs; 3. has no conflict of interest which would prevent their appointment on the basis that they might not be seen to be acting solely in the interests of the subject person; 4. has nothing in their public record, in particular by way of any criminal or bankruptcy proceedings or orders, which might render them unsuitable for appointment; and 5. is not unsuitable for any other reason, such as an inability to understand or to comply with the obligations of a financial manager or the likelihood that they will not for any reason (including lack of availability, interest, competence or diligence) be able to undertake the functions of a financial manager in the best interests of the protected person.

CONSIDERATION: IDENTITY OF THE FINANCIAL MANAGER

We asked RZL certain questions in order to assess his suitability under the criteria which we have described at [60] above.
We found that RZL was reasonably familiar with AKL's estate and that there could be little doubt that he was close to AKL and would, if appointed, act in his welfare and interests. We also found that RZL had business experience which was sufficient to give him a reasonable understanding of how to deal with and account for other people's money in accordance with the criterion described at [60(2)].
However ultimately we decided not to appoint RZL. We reached that decision for the following reasons: 1. The priority for any financial manager of AKL's estate will be to ascertain the existence, quantum and enforceability of AKL's entitlements to past distributions or advances from the Family Trust and as a related matter his entitlement to any future distributions or advances. 2. RZL was vested with critical decision-making powers in relation to the Family Trust as its trustee, for the period between its creation on 5 June 2012 and his removal as trustee on 17 June 2015. Although we make no formal finding that his position as trustee would be the source of any undue conflict between his duties as financial manager and his personal interest, his ability to pursue any challenge to at least some of the alleged distributions is compromised by his holding of those offices and by the history of his relationship with the current trustee, his former wife. 3. An even more compelling reason for refusing to appoint RZL is the effect which his appointment will most likely have upon AKL's existing family relationships. It is clear to us that AKL's continued welfare and interests rest strongly on the continuation of a close relationship with both his mother and his father. He depends on his relationships with each of them as a parent. That is essential in securing for AKL the opportunity to live a normal life in the community and in preserving his welfare and interests. 4. It is equally clear that although QNT and RZL have cooperated on some matters, particularly those which they mutually recognise to be central to AKL's welfare, they remain permanently estranged. 5. It is palpably clear that the appointment of RZL as financial manager, carrying with the obligation to investigate and if possible enforce AKL's rights under the Family Trust of which AKL's mother (his former wife) remains as trustee will bring about early and substantial deterioration of the relationship between AKL's parents, with consequent damage to his existing family relationships. 6. For those reasons there is a clear need, in pursuit of AKL's welfare and interests, for his financial affairs to be managed independently of the family.
No other private person having been identified to us as willing to be considered for appointment as financial manager, it followed that the management of AKL's estate should be committed to NSW Trustee and Guardian.

Should the order be subject to review within a given period?

We have the power to make a financial management order reviewable by the Tribunal within a given period. Although that power is not exercised in every case, it is appropriate to do so where the appointed financial manager will need to undertake a discrete range of tasks which can probably be completed within a particular period.
It seemed to us that it may well be appropriate for the order to be reviewed within the next 12 months, as that would appear to allow a reasonable time for the issues concerning the Family Trust which we have discussed in these Reasons to be more clearly identified, investigated and pursued. At that stage it would clearly be appropriate for the Tribunal to review the order.
It follows that we should make the financial management order reviewable within 12 months.
We ordered accordingly.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 November 2021

Trustee and Guardian Act 2009(NSW)

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Judgment (24 paragraphs)

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Cases Cited (9)