This is a case about a young, severely disabled man and where he should be accommodated. In these reasons, I will refer to this young man, who is under the guardianship of the Public Guardian as 'the son.' Currently, the son is residing in a residential care facility ('the care facility') in NSW. In 2013, a decision was made by the Public Guardian (and confirmed on internal review) that the son should instead be accommodated with his mother ('the mother') in the United States of America ('USA'). The issue in these proceedings is whether this decision is the correct and preferable decision. The man's father ('the father'), who is the applicant in this case, is of the view that the son should live with him in Sydney. There was no objection to the mother's application to be joined as a party in these proceedings. Subsequently, a Guardian Ad Litem, Ms Ramjan, was appointed to represent the son's interests.
[2]
Relevant legislation and jurisdiction of this Tribunal
The father applied for review of the Public Guardian's decision to the Administrative Decisions Tribunal (NSW) on 17 December 2013. The Administrative Decisions Tribunal was abolished when this tribunal, the NSW Civil and Administrative Tribunal ('NCAT') was established on 1 January 2014. By reason of cl 7 of Schedule 1 of the Civil and Administrative Tribunal Act 2013 No 2, these proceedings are now proceedings before the NSW Civil and Administrative Tribunal.
For this purpose and under cl 7(3), NCAT has and may exercise all the functions which the Administrative Decisions Tribunal previously had. The applicable legislation is that which would have applied if the NCAT legislation had not been enacted. Consequently, the Administrative Decisions Tribunal Act 1997 as in force at 31 December 2013 is applicable to this matter.
Section 80A of the Guardianship Act 1987 ('the Guardianship Act') provides that an application may be made to this Tribunal (and previously, to the Administrative Decisions Tribunal) for a review of a decision of the Public Guardian that is made in connection with the exercise of the Public Guardian's functions under the Guardianship Act as a guardian, and is of a class of decision prescribed by the Regulations.
Regulation 17 of the Guardianship Regulations 2005 provides that all decisions of the Public Guardian made in connection with the exercise of its functions are prescribed for the purposes of section 80A of the Guardianship Act. Hence the decision made by the Public Guardian in this case is a decision in respect of which an application may be made for review to the Tribunal.
Applicants who may apply to the Tribunal under s80A of the Guardianship Act include the protected person, the spouse of that person, a carer, and 'any other person whose interests are, in the opinion of the Tribunal, adversely affected by the decision' (s80A(2)(d)).
The father is the person to whom the decision relates so he is able to make an application to the Tribunal.
In conducting the review, it is the role of this Tribunal to conduct a merits review to determine whether the Public Guardian's decision that the son be accommodated in the USA with his mother is the correct and preferable one having regard to the material before the Tribunal including any relevant factual material and any applicable written or unwritten law. (section 63 of the Administrative Decisions Tribunal Act 1997). In making its decision, the Tribunal is to have regard to the principles set out in section 4 of the Guardianship Act.
Section 4 of the Guardianship Act provides for the following eight principles which persons exercising functions under that Act must observe, Section 4 provides as follows:
It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles:
(a) the welfare and interests of such persons should be given paramount consideration,
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
(g) such persons should be protected from neglect, abuse and exploitation,
(h) the community should be encouraged to apply and promote these principles.
[3]
Non- publication of names
Pursuant to s126 of the Administrative Decisions Tribunal Act, there is a prohibition against publishing the names of certain persons to whom proceedings relate, if the proceedings are in relation to a reviewable decision made under the Guardianship Act 1987. Those persons include a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings. This is such a case.
In these reasons, I have not referred to a number of people by name. Rather than naming them, I have instead referred to them by reference to their relationships to each other.
[4]
Parties to this application for review
There are four parties to the application for review: the father, who is the applicant in the matter, the Public Guardian, who is the respondent, the mother, who was joined as a party, and Ms Ramjan, who was appointed as Guardian Ad Litem to represent the interests of the son.
[5]
Background
The father and the mother are the divorced parents of the son who was born in the USA and who is now 34 years old. After his parents' separation, the son was raised by his mother in the USA and had regular contact with his father who also lived in the USA before he later moved to Australia. In 1998, the son travelled to Australia, went back to the USA in 1999 and returned to Australia in 2000. Whilst living in Australia, the son suffered a severe traumatic brain injury after a work-related accident in 2002. As a result of the accident, the son has significant cognitive impairments and physical impairments, including spastic quadriplegia. He has a limited ability to communicate and requires 24 hour care.
In 2003, the father was appointed as the son's guardian, with his mother as the alternative guardian. The father was also appointed as the son's financial manager. In October 2003, the son was discharged from hospital into rented premises shared with his father. From 2003 to March 2008, Global Disability and Health Care Services Pty Ltd ('Global') provided care services for the son. In February 2008, the director of Global, Mr McDermott, gave a month's notice of his decision to terminate the care arrangement.
Following lengthy court proceedings, in 2008, the son was awarded in excess of $15 million by way of damages. The assessment was made on the basis that the son had a life expectancy of 54 years.
In April 2008, Drake Medox Nursing Agency ('Drake') replaced Global as the care providers for the son and continued to provide care for the son until 8 August 2009 when the father set up his own care service ('the father's care service') for the son. This service provided care to the son until the beginning of 2011.
The son's guardianship order lapsed in July 2010. In December 2010, the mother applied for guardianship of her son. She also sought to review the father's appointment as financial manager for the son. On 13 January 2011, the Public Guardian replaced the father and mother as the son's guardian and the NSW Trustee and Guardian ('NSWTAG') replaced the father as financial manager for the son.
From January 2011, the Public Guardian engaged Global to provide care for the son who was still residing in rental accommodation with his father. In October 2011, the Public Guardian made a decision limiting the father's access to the son while Global were caring for him and in January 2012, the Public Guardian made a decision to move the son to full-time accommodation in a residential care facility ('the care facility'). Global continued to provide some weekend care for the son until April 2012.
On 15 August 2013, the Public Guardian decided that the son would be accommodated in the USA under the care of the mother. This decision was confirmed on internal review on 14 November 2013. This is the decision now under review, which was stayed on 20 December 2013.
[6]
Preliminary matters
As set out above, the mother made application to be joined as a party to these proceedings. There was no objection to her application. Given that the decision before me relates to whether or not her son should be accommodated with her, I was satisfied that her joinder was necessary to the determination of all matters in dispute in the proceedings, in accordance with sections 67(2)(d) and 67(4) of the Administrative Decisions Tribunal Act 1997. On this basis, I granted her application to be joined as a party to the proceedings.
Following submissions from the other parties to the proceedings, I appointed Ms Ramjan as Guardian Ad Litem to represent the interests of the son in accordance with section 71(4) of the Administrative Decisions Tribunal Act 1997. I found the appointment of a separate representative for the son to be essential because of the significant life-changing decision under consideration for the son where there is a disagreement between his parents as to the appropriateness of the decision.
A chronology of events, as agreed between the Public Guardian, the father and the mother was provided to the Tribunal as was a list of agreed issues.
Early in the proceedings, the father sought a ruling from the Tribunal that the Public Guardian's role in the proceedings should be limited to advising the Tribunal as to its practices and procedures. The Public Guardian and the father each provided submissions in relation to this issue. The father submitted that as a party to the proceedings, the mother was a contradictor to the father's case. On this basis, the father submitted that the Public Guardian's role should be limited to advising the Tribunal as to its practices and procedures in accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
In accordance with the decision of the President of the Tribunal, Wright J, and Senior Member Walker, in Commissioner of Police, NSW Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24, I found that the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 do not generally apply to merits review proceedings.
I did not find this case to be in the class of special or unusual case where the Hardiman principle should apply. It is the role of this Tribunal to make the correct and preferable decision on the basis of all the evidence available at the time of the review (section 63 of the Administrative Decisions Tribunal Act 1997). To make such a decision, I found that I would benefit from the assistance of the Public Guardian, who has an obligation to act as the model litigant in these proceedings. On this basis, I refused the application by the father to limit the role of the Public Guardian to advising me as to its practices and procedures. (see Commissioner of Police, NSW Police Force v Fine and Independent Liquor and Gaming Authority [2014] NSWCATAP 24)
[7]
Agreed issues
Early in the proceedings, and prior to the appointment of the Guardian Ad Litem, a list of agreed issues was provided to the Tribunal. The issues identified in the list are as follows:
Identification of and depth of the son's wishes;
The weight that should be given to the son's wishes;
The financial viability of each parents' proposal, and the extent to which each financial plan accords with the son's best interests including sufficiently providing for the son's quality of life;
Whether the Public Guardian has the power to decide that the son be accommodated in a place outside of NSW;
How and by whom the son's funds would be managed if he lived in the USA in the state of Georgia including whether that management will accord with the son's best interests and will provide for his quality of life;
The nature, quality and extent of the son's family relationships in Georgia and in the greater USA and Canada, including what support and companionship those family relationships might offer;
The extent to which each parent has in the past and in recent times been able to liaise, in an appropriate manner, with nursing and other staff who care for the son;
The impact, if any, of each parent's behaviour with support staff had on past and current care arrangements;
The impact, if any, that each parent's behaviour is anticipated to have on the care arrangements proposed, and whether any risk to the son's future care arrangements is acceptable;
The extent to which each parent's accommodation proposal is in the best interests of the son, with specific reference to each criterion set out in section 4 of the Guardianship Act; and
Whether the son is fit to the travel to the USA.
[8]
Length of proceedings
The proceedings in this matter have been both lengthy and complex. There were four parties in a hearing that ran for 22 days and required attending to several interlocutory matters, hearing from seventeen witnesses and considering several volumes of material. The matter was adjourned to allow for the appointment of a Guardian Ad Litem and for an agreed list of issues and witnesses to be provided. Delays were caused by an initial failure to provide relevant material in answer to summonses issued by the Tribunal and by the consequential need to recall certain witnesses. There were some difficulties with the availability of witnesses including those overseas witnesses who were required to give their evidence by telephone. Given the complexity of the issues to be considered, it was important to keep continuity of representation. This required further adjournments to ensure the availability of all parties and their representatives.
[9]
RELEVANT EVIDENCE
There was a wealth of evidence put forward in this case, both in documentary form and as oral evidence by witnesses who attended the Tribunal either in person or by telephone.
The documentary evidence before me is contained in volumes I and II of those materials provided by the Public Guardian in accordance with s58 of the Administrative Decisions Tribunal Act ('the section 58 materials') and in exhibits marked 1 to 57.
Whilst I have considered all of this material, a summary of the relevant evidence contained in the material is set out below.
[10]
Section 58 materials
These documents include:
the decision of the Public Guardian dated 15 August 2013 that the son be accommodated in the USA with his mother;
the internal review of the decision dated 14 November 2013, which upheld the original decision that the son be accommodated in the USA with the mother. The summary of reasons for the decision states that:
The decision has been upheld because [the mother] has submitted a proposal that sustainably promotes [the son's] health and welfare whilst according with his wishes to leave his current care facility and reside with her.
Care plans for the son, including a care manual & instructions for carers prepared for the son by Access Brain Injury Services in September 2011;
Medical reports for the son;
Occupational therapy and communication access reports for the son;
Guardianship orders made for the son;
Letters written by the son prior to his accident;
A final apprehended violence order dated 2 March 2012 made against the father for the protection of the mother;
Correspondence from the father's former wife in relation to discussions with the son prior to his accident;
Correspondence by the father and mother in relation to the son's care;
Running notes and letters from care providers in relation to the son's care;
Financial reports for the son;
2013 Speech Pathology Yes/No Consistency Assessment Report prepared for the son, assessed by Angela Vass.
[11]
Exhibits
There are 57 exhibits in this matter and I have considered each of them in reaching my decision. Below is a summary of relevant aspects of several of these exhibits. Other exhibits are referred to during the summary of evidence provided by witnesses in these proceedings.
[12]
Supreme Court Proceedings (Exhibit 55)
In a 2008 decision by the Supreme Court of NSW, the son was awarded damages in excess of $15 million following an action against the son's former employer and associated contractors. The father and mother were each awarded damages in excess of $200 000.
In his findings, the judge referred to medical reports for the father which assessed him as suffering Post-Traumatic Stress Disorder following his son's accident. The father's prognosis for recovery from Post-Traumatic Stress Disorder was said to be poor.
To avoid identification of the parties in these proceedings, rather than setting out the citation of the 2008 decision by the Supreme Court of NSW, I will simply refer to it as the Supreme Court decision of 2008.
[13]
Dolman Bateman opinion 19 June 2013 (Exhibit 7)
Ms Fiona Bateman is a forensic accountant. Upon request of the applicant, she provided an opinion on the budget provided to the Public Guardian by the mother in relation to her application for her son to live with her in the USA.
In her report, Ms Bateman queries the accuracy of the budget on the basis that it does not allow for any comforts or discretionary spending for the son, allows only $13.15 per day for meals, does not include medical costs, does not allow for accommodation costs apart from utility costs for $3900 or associated costs. She also expressed concern that the value of the Australian dollar may decrease thereby causing a reduction in the value of the son's funds.
According to Ms Bateman
[The mother] has advised me at the Guardianship Tribunal in July 2012 that once [the son] is in the USA that she intends to apply to have his funds transferred to her, for her to control. It is of concern that she has previously been made a bankrupt and would not be able to perform this complex duty.
I believe the budget put forward by [the mother] is too simplistic and excludes many costs. I have concerns about its ability to cover [the son's] actual needs and provide all the care that he requires.
[14]
Report by Baker & McKenzie regarding Special US Federal Income Tax Matters (Exhibit 44)
This report advises that as a US citizen and regardless of where he lives, the son is required to annually file federal income tax returns and pay US federal income tax on his worldwide income. Taxable income can be largely offset by medical expense deductions.
According to the report, although the US federal tax treatment should not change based on the son's residence:
the superannuation fund provides an added layer of complexity because its tax treatment in the United States is not clear…Generally the superannuation fund may be treated as either a non-grantor trust or an employer funded pension plan.
Finally the state of Georgia does impose an income tax on its residents' worldwide income at a rate of 6% which would not be applicable if [the son] remained in Australia. Similar to the federal income tax, the Georgia income tax can be largely offset by medical expense deductions. The Georgia state income tax should be a deductible expense in calculating [the son's] U.S. federal income tax liability.
[15]
Recording and transcript of Ms Ramjan's interview with the son on 3 June 2014 (Exhibits 28 & 29)
On 3 June 2014, Ms Ramjan had an interview with the son in which she asked him questions about where he wished to reside and with whom. To communicate with the son, Ms Ramjan used a combination of thumb signals and eye-blinking. Her interview was recorded and transcribed.
[16]
Tender bundle (Exhibit 46)
By agreement, a tender bundle was provided to the Tribunal containing material from the following people and organisations:
Ramsay Health Care Australia;
Access Brian Injury Services;
Royal Rehab;
Northern Sydney Local Health District;
The Hills Private Hospital;
Global Disability & Health Care Services;
Lighthouse Health Group;
Dr Helen Clarke;
Public Guardian.
The bundle includes documents outlining allegations of inappropriate and aggressive behaviour by the father towards carers, the intimidation of new staff by the father and his partner and aggressive behaviour by the father's partner towards the mother.
In a note by one of the son's carers, she states that she was advised that:
If [the father] continues to be a pain they will either remove him or [the son] from the house. If [the son] goes to a facility it is not to be disclosed to [the mother] or [the father].
Complaints about the mother and her difficult management style are contained in an unsigned typewritten letter to the father by one of the son's carers. The carer in question has denied writing the letter.
Running sheet entries list instances of difficulties experienced by Global carers in 2011 in dealing with both the mother and the father.
[17]
Immigration records (Exhibits 30, 35 & 36 )
Immigration records produced to the Tribunal include the son's application for permanent residence in Australia and the mother's application for permanent residence in Australia, which she subsequently withdrew.
[18]
Advice from NSWTAG: financial viability of proposals (Exhibits 1, 41 & 47)
Advice from the NSWTAG dated 8 May 2013 considers the viability of the father's proposal that the son reside with him in Australia and calculates that in the case of the son renting a property, total annual expenses of $530 030 and in the case of the son purchasing a property, capital expenditure of $900 000.00. In each case, the NSWTAG advises that 'depletion is not a concern' and supports 'both accommodation and care proposal including either leasing or buying a property as affordable.'
Further advice from the NSWTAG dated 8 May 2013 considers the proposal by the mother that the son reside with her in the USA. The advice allows for annual expenses of USD466 000 which are equivalent to AUD452,430 and a capital expenditure of USD736 500 which is equivalent to AUD715 000.
Based on the proposed budget and using the AUD/USD exchange rate at the time of calculation, the NSWTAG supported the proposed budget as affordable, whilst highlighting the following risks:
It does not allow for any variation, discretionary or entertainment expenses other than $1800 per annum for Pay TV and $2400 per annum for clothing;
It cannot be determined whether medical expenses included in the proposed budget will meet the client's current and future needs;
It does not consider currency risk;
It does not consider the son's tax position as a citizen residing in the USA.
[19]
The mother
The mother is an American citizen who lives in the USA. The son is her only child. She and the father divorced when the son was seven years old. She was granted custody of the son with the father spending alternate weekends and holidays with the son. She described a close relationship with her son and when she and her current husband married in 1999, the son spent the year living with them. She agreed that her son had later moved out of home but stated that he would return to the family home to do his washing. She denied having any significant arguments with her son in 1999 and 2000 and disputed the suggestion that her son did not get on with her husband. She was aware her son had applied for permanent residence in Australia prior to his accident but didn't believe he had decided to make Australia his permanent home.
She described her continuous and substantial involvement in her son's life following his accident. She agrees that her son remembers his pre-accident life well but disagrees that he has more problems remembering his post-accident life.
When the son lived with the father in rental premises between 2004 and 2011, the mother stayed at the house for periods ranging from three months to eight months. Following her son's accident, she applied to become a permanent resident of Australia but was forced to withdraw her application when her son was placed in the care facility and she no longer had a place of residence in Australia. This, she had been advised, would have resulted in the refusal of her application.
Since her son has been living in the care facility, her stays in Australia have been shorter because she has to pay for private accommodation. Since her son has been in the care facility, she has noticed a major decrease in her son's movements and ability to move in general. She describes the care facility as being more like a nursing home than a rehabilitation facility and describes her son's care there as being inferior to the care she and the father had given him in the rental premises.
According to the mother, the care facility:
has programs in place..but nothing like the programs [the father] and I had in place..when he was under our care. [Our son] is capable of doing much more.
She agreed that Drake had provided good care to the son. She also agreed that the father had provided good care to the son whilst they were living in the rental premises and that she had no objections when the father decided to set up his own care company. She agreed it would be cheaper and was aware that the father would employ relatives as carers. As her visa does not provide her with working rights, the mother is not allowed to receive any payment for caring for her son.
She agreed that until the Public Guardian became involved in the son's care, the father's care company had provided excellent services for him. She was concerned, however, that the father had paid himself a salary: she doesn't believe that family members should be paid to care for the son.
In her statement, the mother sets out details of her proposal to have her son accommodated with her and her husband in the USA, highlighting her intention to provide her son with stimulation, enjoyment and education.
The proposal allows for her son to be flown to the USA in a medical plane and spend two weeks in a rehabilitation facility to enable a plan to be made for his care. Pending the construction of a house for the son, which the mother estimates would take four to five months, the son would be accommodated in a transitional living centre. The mother and her husband would contribute to the construction of a house for the son which would then be owned by the three of them, in proportion to the individual contributions made to the purchase.
Her son has the following family members living in the United States: his maternal grandmother; an aunt, an uncle and a number of cousins. The extended family of the mother's husband live near to the mother and her husband. The son's brother (the elder son of the father) lives with his family in Canada. It is the mother's wish that her son's brother ('the brother') play a large role in his life. She has even discussed the brother becoming the primary carer should the mother and her husband predecease the son. She agreed that there had been no internet contact or no interaction between the brothers for at least five years. She also agreed up until the accident, there had been little contact between the brothers.
In oral evidence, she agreed that the ability of the brother to care for her son had not been tested, and that, despite his best will, he may not be capable of doing so. She agreed that her mother is over eighty and lives four to five hours' drive away. She anticipated that her husband's family would help with the son's care.
In relation to the son's financial situation should he relocate to the United States, the mother stated:
I am aware that all of [my son's] medical expenses in the United States will be tax deductible. This will significantly reduce his taxable income..I am also investigating whether [the son] will be entitled to benefits for people with disabilities, including Medicaid and what private health insurance would cost.
She confirmed that she had been subject to bankruptcy proceedings due to her overdraft on credit and inability to make her credit card payments. She agreed that she had sought advice in relation to the possible transfer of the son's money to the United States and the role of the conservator under the relevant state law. She denied an intention to apply to be her son's financial manager.
In terms of her son's care, she has the following concerns about the father:
He is negative and controlling which made carers scared of him and led to the rental premises becoming a very stressful environment for the son;
As the son's financial manager, he failed to make good decisions in relation to the son's care. It was for this reason the mother applied to have the father removed as the son's financial manager;
He refused to allow the mother's husband to stay in the rental premises when he was in Australia and was verbally abusive to the mother;
He threatened her in around December 2011 which resulted in an apprehended violence order being taken out against the father;
He will only do things his way and doesn't like to listen to other suggestions. For this reason, problems began to emerge when a case manager was appointed for the son.
In relation to the father's family, she agreed that one of the son's uncles had worked with him before the accident. She also agreed that the son's paternal uncle ('the uncle') had worked as the son's carer and would visit him after his accident. She agreed that the son's cousin ('the cousin') would visit weekly between 2011 and 2012. She was unable to say whether the cousin had continued to make monthly trips to visit the son in the care facility. Whilst she used to get on well with the father's family, she told the Tribunal that since she has applied to take the son home, she has been treated very badly.
This has extended to her treatment by the father's partner, who had been employed as a carer for the son. The mother had been unhappy with her performance because she would fall asleep when rostered on for nightshift.
According to the mother, the father's partner:
doesn't like me being around. It's a terrible feeling. I've done everything. I'm his mother. It was like I was an intruder.
[20]
David Paul Pollan
Mr Pollan is an attorney in Georgia, United States, who specialises in ageing and special needs law. In reports prepared for these proceedings, he considers the following issues:
whether the son would be eligible for Medicare and/or Medicaid in the USA;
whether the son would be eligible for private health insurance in the USA, particularly in light of his pre-existing conditions;
whether the son would be eligible for social security benefits under US law;
how hospitalisation and other costs would be funded if the son were living in Georgia, USA;
the relevance of guardianship law and conservatorship law in Georgia, USA.
USA Medicare entitlement
In his written advice, Mr Pollan anticipated that the son:
will eventually have Medicare entitlement the sooner of either the death of his mother, father or step-father, or 24 months after either his mother, father or stepfather begin receiving either Social Security retirement or disability benefits on their individual benefit's records.
In light of the son's work history, Mr Pollan told the Tribunal that the son was unlikely to currently be insured for Medicare. He confirmed his advice that there is a possibility that if a parent, which may include a step-parent, is a recipient of a benefit, the child can also take that status. He was unsure whether the son would be eligible for Medicare on the basis of his step-father's entitlement to social security. He was unsure whether any such entitlement would be lost should the mother and stepfather ever divorce. He confirmed that any entitlement to Medicare would be limited to providing the son with 100 days of rehabilitation.
[21]
USA Medicaid entitlement
Because the son is a citizen of the USA, Mr Pollan believes he would qualify for Medicaid and that he would be able to meet the level of care requirements for his participation in a Medicaid waiver program called the Independent Care Waiver (ICWP).
According to Mr Pollan:
If the son's gross income is more than $2163 per month, a type of income trust called a 'Qualified Income Trust' (QIT) is available so that a portion of his gross income more than $2163 each month can be disregarded. For each month we seek Medicaid, we would transfer at least that portion of his gross income cap to the income trust account. In this way, he would meet the income eligibility requirements.
Under the state law of Georgia, a special needs trust could be established to enable a portion of the son's gross income to be disregarded, thereby ensuring his eligibility for Medicare. Any monies left in the special needs trust at the time of the son's death would be reimbursed to the state of Georgia, up to the amount of medical assistance paid out on his behalf for his long-term care. If the trust is fully depleted at the end of the son's life, there is no payback to Georgia. After repayment to the state, the trust assets that remain are then payable to the remainder of the beneficiaries.
According to a fee schedule attached to Mr Pollan's report, costs associated with the administration of a special needs trust would depend on the amount of the account asset value, with 1. 5% being charged on the first USD1 000 000 of the account asset value, 1.30% for the next USD1 000 000, 1% for the next USD3 000 000. The fee would be negotiable for accounts over USD5 000 000. An annual minimum fee of USD5000 would be charged to each account.
[22]
Eligibility for private insurance
With the passage and implementation of the US Affordable Care Act, which prohibits health insurance companies from discriminating on the basis of pre-existing conditions, it is Mr Pollan's view that the son would be eligible for private health insurance in the USA. He could be enrolled during the next open enrolment period to enable his subsequent coverage.
It would be Mr Pollan's advice that the son obtain private insurance to minimise the amount of money required to be reimbursed to the state of Georgia upon the death of the son.
[23]
Care in the event of hospitalisation
According to Mr Pollan, if the son were living at home in Georgia and needed to be urgently hospitalised, his costs would be paid by both private health insurance and Medicaid who, as the payer of last resort, would reimburse for any amounts not covered by private health insurance.
In oral evidence before the Tribunal, Mr Pollan advised that that he has some clients who require 24 hours per day care. It is his experience that this is not available in a community setting in Georgia but is limited to nursing home care or hospital care.
[24]
Eligibility for social security benefits
Mr Pollan did not think that the son would qualify for social security benefits on the basis of the stepfather's benefits record because the son was not living with the stepfather or financially dependent upon him at the relevant time. If he were eligible for social security benefits on the basis of his stepfather's benefits record, the benefits would terminate if his mother and the stepfather were to divorce.
Assuming the father were insured for retirement or disability benefits through his employment record, Mr Pollan expressed the opinion that the son may be eligible for dependent's benefits if the father were entitled to receive benefits and the son were dependent on the father at the time his application is filed. As the son would be entitled to these benefits while resident in Australia, Mr Pollan advised the son to apply for dependant's benefits immediately.
[25]
Guardianship & conservatorship law in Georgia, USA
A guardian is a person appointed by the court to make decisions, including consent to medical treatment, personal care and place of residence for their adult ward, being an adult who is unable to make important and responsible decisions as a result of an incapacity.
A conservator is the legal representative appointed by the Court to make financial decisions and administer the monies/property of the adult ward under the supervision and oversight of the court.
In oral evidence before the Tribunal, Mr Pollan stated that given the size of the son's estate and the expenses involved in its management, it would be a mistake to appoint a conservator for his estate. A better option would be to set up a boutique trust to manage the son's funds.
He agreed that the mother had spoken of her intention to apply for guardianship for her son. When asked whether the mother had also indicated an intention to apply for conservatorship, Mr Pollan stated that he didn't know many lawyers who would recommend conservators:
I don't remember discussing conservators over property, I probably suggested a limited conservator with the funds being put into a trust administered by a professional trustee, which would therefore eliminate the need for a conservateur…..I am sure I did discuss setting up of a trust, I am very sure of this".
The applicant asked Mr Pollan whether a judge would be likely to approve of a scheme whereby the mother and her husband would contribute to the cost of building a house for the son and take part of the property title, with the balance being held in the son's name.
Mr Pollan replied that:
It depends whether the son has access to Medicaid. If there is a trust with Medicaid and the Social Security Administration and Georgia's Department of Community Health, then the purchase of the home would be reviewed. Any expenditure from a trust must be for the sole benefit of the trustee. This means the purchase could be defeated if it were not done for market price. If it were done through a conservateur, the judge would check that [the son's] financial intents and interests had been protected."
In answer to the question whether a judge might allow an arrangement where the son pays for the accommodation while the mother and stepfather are living there, Mr Pollan said:
Sometimes parents are compensated as care givers and sometimes in lieu of payment they can get free rent.
[26]
Steven Yuhas
Mr Yuhas is a rehabilitation consultant with a USA based case management service that assists catastrophically injured patients. He was contacted by the mother to assist in the development of a medical care plan with treating physicians and a preliminary medical cost projection in anticipation of the son's return to live in the United States.
A 2012 medical cost projection prepared by Mr Yuhas includes:
care costs for medical specialists;
medications;
medical equipment and supplies;
aids for independent function;
health and strength maintenance;
facility care at the proposed evaluation centre;
facility care at the proposed rehabilitation hospital;
transportation to the United States by medical aeroplane;
home care; and
handicap accessible van.
In oral evidence before the Tribunal, Mr Yuhas agreed that his cost projection did not include the cost of a 'sitter' with the son during his period at the evaluation centre where a treatment plan would be organised to prepare for the son's transfer.
When asked whether such a treatment plan was simply re-inventing the wheel, given that the son had already been under medical care and assessment at his current care facility, Mr Yuhas stated that
to receive ongoing care, he needs to be re-evaluated and referrals are needed for the United States…It is an opportunity to see him and evaluate him for his needs.
[27]
Dr Stuart Browne
Dr Stuart Browne is a medical practitioner, specialising in rehabilitation, who has had regular involvement with the son since 2004. Dr Browne told the Tribunal that he had no concerns in relation to the level of care received by the son at the care facility although he agreed that since the son's transfer, there had been more complaints about his care, including an incident of sunburn.
In relation to the son's current memory, he told the Tribunal that the son 'possibly has a greater awareness of day-to-day events. New memories are always the problem. Old memories are often retained.' He confirmed that 'old memories' are pre-injury memories which, as a general principle, are retained more than post-injury memories.
Dr Browne was reluctant to answer questions about the son's views on where he wished to be accommodated, stating that
I deliberately tried to avoid asking the question. I don't want to take sides and wish to have a relationship with both his mother and his father.
In relation to the son's wishes, he agreed that they were reasonably reliable for day-to-day issues, such as whether he felt hungry. He couldn't recall communicating with the son using an eye-blinking method, which is a method of communication he does not support. He agreed that the son's means of communication by thumb signals was reliable for day-to-day activities, taking into account his mood, which could be difficult to assess, and assuming he was not fatigued. He agreed that the son might not answer a question truthfully in order to stop further questions from being asked.
He agreed that both parents had given strong support to the son over the past ten years and were both strong advocates of their son. He had been advised of visits by the father's family to the son at his current care facility and agreed that it was of benefit to the son to have a good relationship with his family. He thought it possible for the son to form new relationships without old memories. If the son had bad old memories, he thought it might be more difficult to establish good new relationships and might instead cause him distress.
He also stated that there were 'quite a few mumblings' about the father's temper and his relationship with the son's carers. He agreed that the father had always demanded the highest care for the son, has high expertise in relation to the needs of the son's trained carers and demanded a high standard of skin care for the son. He agreed that the father became frustrated when the son's needs were not met. He agreed that both parents are strong advocates for their son.
In a letter to Dr Bodil Broeng-Neilson dated 30 October 2012, Dr Browne writes as follows:
[The son's] communication with his 'thumbs up' sign was inconsistent during my examination. He indicated he wanted to live with his mother in the USA, but similarly said he wanted to remain in Australia with his father. He said he preferred living in his previous place to his current accommodation. He denies pain and depression, although I do not feel he interacts as frequently as he did previously.
Dr Browne agreed that it was impossible for him to know if the son could understand the consequences of the words 'to live' or 'to go' to 'to see' when asked a question about his accommodation and living arrangements. When the son stated that he wished to live with his father, Dr Browne agreed that he didn't know whether the son understood that this would mean not living with his mother. He agreed that he hadn't explored the extent to which the son understands what 'living' means. He agreed that he did not know how the son interpreted any of the symbols used by Ms Vass in her testing of the son to elicit his views of his accommodation and living arrangements. He is of the view that the son's answers are more reliable with simple questions and agreed that the son put his thumbs up when asked whether he had had an argument with his step-father prior to leaving for Australia.
[28]
The brother
'The brother' as he will be called in this decision is the son of the father and half-brother to the son, who is six years his junior. He was born in the USA and lives with his wife and three young children in Canada.
In his statement, he stated that his parents separated when he was very young 'due to physical and verbal abuse between the two.' He was fourteen years old when he first 'came to know' his father. At the time, his brother (the son) was eight years old. From that point he regularly spent time with his father, the mother and the son.
When the brother commenced university, he stopped communicating with the father. As a result, he stopped having contact with his brother. In 1996, he tried to locate his brother, without success.
The brother's wife visited the son in 2002 after his accident and in 2006, the brother travelled to Australia to visit the son. He travelled to Australia again in 2008. In evidence before the Tribunal, he agreed that he did not have a relationship with his father between 1994 and 2006 and that prior to his brother's accident, he probably hadn't seen him since 1994. He agreed that he hadn't kept in touch with his brother in the time between his visits to Australia in 2006 and 2008.
He confirmed that his father had told him that he had 'set up a scheme to look after [the son] and to profit from it.' He told the Tribunal that his father was trying to work out how to manage the carers as 'he needed a way to pay his brother if he was going to bring his brother into it.'
The father told him that he was setting up a care service to gain a source of income while caring for the son. When the brother returned to Australia in 2008, he found that his father was drinking to excess and could not co-operate with the son's carers. Later, his father discussed moving the son to Thailand or Costa Rica. Later again, the father discussed bringing the son to live in the USA. According to the brother, the father agreed that the son's final settling place should be in the USA - he just didn't want the son to be with the mother.
He agreed that in 2010, his father had looked at properties with a view to relocating to the United States with the son. With this in mind, and as an incentive for the brother to move closer, his father had suggested that some of the son's funds could be used for the business. He agreed that his father had begged him to look after the son but that he had said he couldn't because of his business. The father subsequently made plans to purchase a house in the USA but did not proceed with the sale. He described his father as having a drinking problem and suffering from depression.
The brother agreed that he had no expertise in dealing with the son's needs although his wife has some limited expertise in the area. He told the Tribunal that the son needs to be near his mother and that it would be nice for [the son] to be near him. He confirmed that it is a 17 hour drive from where he lives to Georgia.
He spoke of the benefits of having a relationship with his brother
I'm sure he recognises me…It's more than me. It's his nieces…The girls have an enormous capacity to bond to people. I think his nieces could bond with him…that's the benefit to [him].
If the son were to move to Georgia, it was the brother's intention to visit him four to six times a year.
[29]
Nicholas Polimonakis
Mr Polimonakis works for Drake, the care agency that had previously looked after the son in 2008 and 2009. Although he had not personally provided care for the son, he told the Tribunal that other staff members described the father as helpful, loving and supportive of the staff and his son. He confirmed that the case notes described the father working alongside and collaborating with staff. The services provided by the father and Drake staff included high needs care, assisting with personal hygiene needs, general supervision and the administration of medicine. He was unsure why Drake services had stopped being provided to the son but stated that it was common for services to be reviewed following a financial settlement being reached.
An agreed summary of Drake progress notes regarding visitors and events for the period 1 April 2008 to 10 January 2009 was provided to the Tribunal.
The progress notes reveal that during this time:
the son received visits from his cousins on nine occasions;
the son used his wheelchair to visit the next-door neighbour;
the mother and father were both involved with the son's care and at times both accompanied the son on excursions;
the step-father visited the son to spend time with him. According to the progress notes, the son enjoyed the visit with his step-father.
Mr Polimonakis confirmed that Drake would be happy to provide further services for the son and would require four to five weeks to recruit a team specifically chosen to care for him. A clinical co-ordinator or case manager would be appointed to act as liaison between the various parties. He named Mr Newton as a case manager who had previously provided care to the son and would be happy to provide further services. He confirmed that a care manual could be compiled for the son's care. He was confident that Drake would be able to work both with the Public Guardian and the NSW Trustee and Guardian.
[30]
The stepfather
The stepfather is 56 years old and has been married to the mother since 1999, when the son lived with them for a year. During this time, the stepfather taught the son to drive a manual car and helped him find his first job. After the son had moved out from their home, he remained in weekly contact
The stepfather denied fighting with the son in 2000 prior to his leaving the USA for Australia. Any disagreements with the son were minor. One such disagreement was about efforts made by the son to find a job. As his stepfather, he didn't think it was his place 'to say you can't do this, you can't do that.'
When the son left the USA for Australia, he stayed in weekly contact. The stepfather didn't believe the son intended to remain in Australia permanently:
he had gone previously and he came back. I thought he'd rebound from place to place for years.
Once the son had left for Australia, the stepfather told the Tribunal that the son had been in regular telephone contact.
The stepfather described the effect of the son's accident on his wife. Having been told her son would very probably die, the mother was so distraught the stepfather had to arrange for her flight home. When she lost her job due to her long absences, the stepfather financed all his wife's subsequent trips to Australia.
He himself has travelled to Australia to visit the son on four occasions: twice in 2003, once in 2008 and once in 2011 when he left after two days because the father wouldn't let him stay in the rented premises he shared with the son.
The stepfather conceded that his wife often seemed preoccupied after the son's accident but denied that the marriage had ever been empty. He agreed that his wife was placed under great strain trying to cater to everyone's needs:
If she were there, she should be here; if here, she should be there. She was never in the right place. Either she moves to Australia or [the son] goes to the US.
He agreed that he and his wife had discussed moving to Australia: to this end, she had applied for permanent residence.
The stepfather believes it would be in the son's best interests to return to live with his mother in Georgia, where the stepfather has family members living locally with whom he is in regular contact. His sister is a nurse who has undertaken to support the mother and stepfather in their care for the son. He agreed that his nieces and nephews were considerably younger than the son.
He told the Tribunal that although his family did not have contact with the son prior to his marriage, they did see each other socially in 1999. He was unsure whether his family had had any contact with the son on his return to the United States in 2000.
In 2012, the stepfather's lower leg was amputated due to an error by the surgeon during a routine knee replacement operation. He now has a prosthetic leg. He remains active and regularly attends the gym. He is able to perform household chores, shops and can drive a car. Despite the amputation of his lower leg, the stepfather was confident he could still assist with lifting the son, as required. He had recently assisted his own mother after a fall.
If the son returns to live in the USA, the stepfather anticipates being able to assist him with his physiotherapy, meal preparation and proficiency with computer skills. He also envisages being able to take the son on excursions around the neighbourhood, to the shops, to the beach, to sporting games, concerts and movies.
He agreed that the primary contact is between his wife and her son but that when they Skype, he is often in the background on screen. He often plays tricks by sneaking up on his wife while they are Skyping to make the son laugh.
In evidence before the Tribunal, the stepfather was unable to correctly state either the month or year of the son's birth. He was unable to name the son's favourite sport or favourite television show.
The stepfather told the Tribunal that he and his wife would contribute to a house purchased for the son in Georgia and would contribute to utility payments.
He confirmed that he and the mother had sought investment advice in the USA in relation to the son's funds.
[31]
Angela Vass
Ms Vass is a speech therapist who works in rehabilitation. She is the co-author of a 2013 Speech Pathology Yes/No Consistency Assessment Report for the son. The report concludes that the son has a consistent Yes/No response to auditory comprehension of sentences of varying levels of complexity.
Ms Vass arranged a meeting with the son and Dr Sean Hosking, Principal Guardian with the NSW Public Guardian on 5 August 2013 The purpose of the meeting was to try to ascertain the wishes of the son in relation to his accommodation. At the meeting, Ms Vass saw herself as a facilitator whose role was to ask the son where he would prefer to live. The options he was given were as follows:
Option 1 - as proposed by the mother, namely that he go in an aeroplane to America and that he would reside in a place similar to his current care facility for a period of time. He would then move into a house with his mother and her extended family;
Option 2 - to move into a home with his father and to be supported in the house with medical care coming in;
Option 3 - to stay in his current care facility.
Ms Vass developed and used a rating tool in order to communicate with the son. A copy of this tool is contained in the s58 documents. The document rating spans from Hate it - Not Really - It's okay - Pretty good - Love it.
Pictures representing the three accommodation options were shown to the son who was asked to indicate his view for each option using his thumbs up/thumbs down form of communication as the pictures were slid along the rating scale. Ms Vass told the Tribunal that the son had used the rating scale for a couple of months as a regular part of her therapy sessions with Ms Vass prior to the meeting with Dr Hosking.
As a result of the meeting, the son indicated a rating of 'Not really' in relation to the pictorial representation of living with his father or staying in his current care facility and 'Love it' for the option of living with his mother. Ms Vass confirmed that she had twice checked the rating scale with the son. Ms Vass couldn't remember the order in which the options were given to the son.
In a subsequent meeting on 14 August 2013, the son was again asked to indicate his accommodation preferences by using the rating tool. On this occasion, he indicated 'Hate it' for staying at his care facility; 'Not really' for living with his father and 'Love it' for living with his mother.
Ms Vass took no notes at the meetings. She had no recollection of the son's demeanour at the meetings.
In evidence before the Tribunal, Ms Vass agreed that in determining whether the son was able to weigh up options presented to him and understand the consequences of his choices, an assessment of the son's cognitive functioning would be required. This would require further investigation by specialists practising in the area. She agreed that she had not sought such investigations. She agreed that a high level of cognitive and executive functioning would be required to understand the implications of the term 'to reside' and that it was difficult to know if the son had the required level of functioning to understand this.
Ms Vass was asked to consider the video of a meeting between the son and the Guardian Ad Litem, Ms Barbara Ramjan, on 30 April 2014, and the notes of the meeting taken by Ms Ramjan. To communicate with the son, Ms Ramjan used eye-blinking and thumbs up/thumbs down signals. According to the transcript provided, the son indicated that:
he likes his care facility and the staff;
he likes to see his mother and his father;
he wanted to stay in Australia;
he didn't come to Australia for a holiday, rather he came to stay;
there had been a fight with his stepfather prior to the son coming to Australia.
Ms Vass expressed concerns in relation to the methodology used by Ms Ramjan, particularly that the structure of the interview involved a tested rather than a supportive environment. Ms Vass expressed the view that the questions weren't specific enough for the son to give reliable yes/no answers. She gave the expression 'to see' as an example of this, and commented on the broader concepts of staying in Australia, stating that this needs to be clarified to enable the son to know what yes/no answer to give. She was also concerned by Ms Ramjan's use of eye blinking as a means of communication given the extent of the son's physical disability and the fact that he may not have voluntary control over his blinking. She herself does not use eye-blinking to communicate with the son.
[32]
Dr Helen Margaret Clarke
Dr Clarke is a medical practitioner who has being treating the father for psychological issues since 2005 or 2006.
In a 2007 report, she stated that the father suffers from Post-Traumatic Stress Disorder with a poor outlook for improvement. She spoke of the father as being at risk of suicide when depressed. She referred to his care of the son and stated that the father's
efforts would be best utilised in providing social and psychological support for [the son], while others provide the physical lifting and day to day nursing….[The father] would be likely to benefit from being seen to be the pivotal member of [the son's] management team.
In a letter to Dr Stuart Browne dated 8 September 2012, Dr Clarke spoke of her concern in relation to the deterioration of the son following his admission to the care facility. According to Dr Clarke, the son:
made significant progress in rehabilitation under his father's care in the first 8 years after his accident. [His] medical progress was remarkable in:
his physical health;
his psychological state;
communication and understanding;
ability to eat 3 meals a day;
minimisation of muscle wasting;
minimisation of infection;
integrity of skin and body orifices;
ability to tolerate sitting for most of the day (albeit with rest periods);
quality of life and enjoyment of his surroundings.
It seems that [his] current condition can only be described as one of severe debilitation. It is my understanding that [he] now:
has had/or still has a multi-resistant staph aureus infection (MRSA);
is fully PEG tube fed whereas under [the father's] care was eating 3 meals a day;
often lies in bed 16 hours a day;
has an increased and severe contracture of his arm;
has pressure areas on his feet;
has contractures and swelling of his feet so that he can no longer wear shoes;
has had 2 episodes of inhalational pneumonia requiring hospitalisation since [his father] was excluded from his care;
is too embarrassed to be seen in public;
no longer has his customised table to help with his use of the computer and to watch a large screen TV;
has a constant change of carers who are not trained to suction his airways;
is sometimes left until mid-morning lying in his own faeces before showering;
has carers who have been told to refuse to allow [the father] to tend to his son's nursing needs or even to let him watch the son being showered;
has a wheelchair with a headrest that pokes into [the son's] forehead and partially obstructs his vision and his glasses.
As a medical practitioner, I am concerned because [the son] is rapidly losing function and this puts him at risk of serious harm and possibly irreparable loss of function and potential significant shortening of his lifespan.
In a letter to the Guardianship Tribunal dated 26 February 2013, Dr Clarke provided greater details, including photographs of the son's deterioration, in relation to her concerns about the institutional care provided to the son and highlights the father's high level care to his son in the years following his accident and prior to his admission into the care facility. In her letter, she details her opinion that the father be granted guardianship over accommodation, services, healthcare and medical and dental consent for his son with the mother having private accommodation facilities provided on site for the son's care and being granted unlimited access to the son.
In subsequent letters to the Public Guardian dated 17 April 2013 and 24 May 2013, Dr Clarke reiterates these concerns.
In oral evidence to the Tribunal, Dr Clarke confirmed that the father had been admitted to a psychiatric hospital in 2009 and 2011 and that he continues to suffer from Post-Traumatic Stress Disorder and takes mood stabilisers to assist him. His symptoms include problems sleeping, a negative outlook and anxiety that ranges from flight or fight agitation to a freeze/collapse state of mind. He has had suicidal ideation. Dr Clarke told the Tribunal that the father is very alert to the factors that may harm his son and likes to be involved in his care. His lack of literacy makes it difficult for him to effectively communicate his concerns to the Public Guardian.
She agreed that the father had used alcohol to self-medicate and to assist him to sleep at night. In her opinion, he is at risk of suicide if he is forced to have less care of his son. She told the Tribunal that since 2007 he had cut down on his consumption of alcohol, had improved his diet and increased his exercise.
She denied that his Post-Traumatic Stress Disorder affected his ability to make the correct decisions for the son. To the contrary, she told the Tribunal that the disorder made the father hyper-vigilant in relation to his son's care.
She spoke of the ways in which the father had assisted with his son's care, including assisting him with a computer software program, encouraging his son's friends to visit, constructing a table for him to assist with his computer use and ensuring that the son was given food he liked.
Dr Clarke told the Tribunal that the son's condition had deteriorated when the Public Guardian was given guardianship of the son and they employed Global to care for him. This, according to Dr Clarke, caused great distress to the father who was shocked by the subsequent decision to place the son in institutional care and then to send him to the USA. As a result, the father felt marginalised and isolated from his son. He became more agitated, suffered nightmares, abused alcohol and became suicidal. To address these issues, Dr Clarke has been assisting the father with relapse prevention strategies.
[33]
Malcolm Pound
Mr Pound is the Acting Financial Director, Trustee and Guardian Financial Planning Branch of the NSW Trustee and Guardian ('NSWTAG'). He qualified as a financial planner in 1997 but has worked in financial planning for forty years.
He explained that the role of the NSWTAG is to determine the expenses for a client and to provide a viable financial plan. It was not the role of the NSWTAG to determine whether the expenses are realistic. In preparing a plan, he assumes that relevant medical expenses are included in it and they he will be advised on any subsequent expenses.
For the Tribunal's assistance, he submitted updated calculations (dated 27 January 2015) in relation to the viability of the mother's plan to have the son accommodated with her in the USA.
Since his earlier advice in July 2014, Mr Pound noted that the expenses paid for the previous six months were $288, 716 and that the son's financial assets had increased to $13 785 995.00. The US dollar strengthened and the Australian dollar declined to USD0.7942 from approximately USD0.900 in July 2014. Mr Pound advised that over the past 20 years, the US dollar exchange rate has fluctuated between AUD0.50 and AUD1.09.
Mr Pound provided a table of expenses required for the mother's proposal. These figures show total recurring annual expenses for the son to be AUD494 792 and capital expenditure (one off expenses) to be AUD1 136 598.
According to Mr Pound's figures:
At USD0.80 recurring annual expenses of $614 740 are expected and the cost of the one off expenses total $1420 748. In this circumstance, the Financial Planning Branch estimate financial assets would deplete in 36 years or when the client is approximately age 70. A recurring expense of approximately $530 000 would avert this situation.
Based upon the above if a life expectancy of age 54 or another 20 years was valid, then expenses could rise to approximately $820 000 before depletion is expected to be an issue
If the AUD/USD was USD0.70 recurring annual expenses of AUD700 146 are expected and one off expenses would cost AUD1 623 712. In this circumstance the client's financial assets are estimated to deplete in 28 years or when the client is approximately age 62.
On the figures provided by Mr Pound, assuming an exchange rate of USD 0.85 for each Australian dollar, the son's assets would be depleted within 41 years, when the son is 74 years old. With a more favourable exchange rate of between USD 0.90 to USD 1.0, the son's funds would last between 46 and 61 years before they were depleted. Mr Pound agreed with the proposition that any plummet in the Australian dollar would result in a quicker depletion of the son's funds.
Mr Pound agreed that if the son were to withdraw his money from his superannuation fund prior to the preservation age, he would be liable to pay tax of 20%. He agreed that whilst the NSWTAG is currently the financial manager for the son, an application could be made to the Guardianship Tribunal for revocation of the financial management order.
He agreed that if there was a concern that the son's funds might be withdrawn from his superannuation fund and relocated in a fund in the USA, the cost figures would need to be recalculated in order to check the viability of the mother's plan for her son to travel back to the USA to live with her.
He agreed that if the son's funds were to be placed in a Legacy Trust, the fees to do so would increase the son's recurring annual expenses by 20%. This would accelerate the depletion rate of the son's funds by twelve years.
He agreed that the son's funds would not necessarily have to be transferred out of Australia were he to reside in the United States and that it was not unusual for a client to reside overseas whilst having their money kept in Australia.
On the information before him, he was satisfied that the mother's plan remained financially viable.
In relation to the father's proposal, he stated simply that the two proposals (rental and purchase) submitted by the father in 2013 continue to be supported by the NSWTAG as affordable
[34]
The cousin
The son has a first cousin (the nephew of the father) who, for the purposes of this judgment, will be referred to simply as 'the cousin'.
In his affidavit, the cousin describes his relationship with the son. As a child, he had sporadic contact with the son who was living in the USA. When the son later moved to Australia, the cousin had more contact with him. During this time, the son had spoken to him of his dislike for his stepfather, who is Jewish, and his subsequent falling out with his mother.
According to the cousin, while he was living in Australia prior to his accident, the son had a close relationship with his extended family.
He told the Tribunal that prior to his accident, the son had felt a strong affiliation with the middle-eastern heritage of his father, had strongly identified with the Palestinian cause and had concerns with the actions of Israel in this regard.
Following the son's accident, the cousin had visited him frequently and had mediated any disputes arising between the mother and the father. He had also assisted the father in the establishment of his own care service for the son which:
was established to cut out the middle man and save the money that [the son] was paying to the company facilitating the provision of carers. It also gave some control to [the father] over who was coming and going from his house on a daily basis.
Under this care organisation, the son had:
the use of music equipment;
the use of a customised table which enabled him to use his upper limbs to try and write and feed himself;
computer lessons;
regular outings;
painting; and
speech pathology.
The cousin would like a resumption of such a care service for the son. He told the Tribunal that:
I am not a skilled carer and do not plan on assisting [the father] with that aspect. If [the son's] care went back to '[the father's care organisation], I would work for the company as an administrator. As part of that role I would oversee the hiring and management of the carers, implementing care plans, managing the company's finances and liaising with [the son's] doctors and the Public Guardian. …If [the son's] care was designated to another company, I will continue to assist in liaising with that company and the Public Guardian to ensure [the son's] care [is] implemented in his best interests.
In oral evidence before the Tribunal, the cousin agreed that whilst he had regular contact with the son when he was living with the father, since he has been in the care facility, his contact has lessened. This was initially because he was having (successful) treatment for cancer and is now because he finds the surrounding at the care institution so disturbing that he doesn't wish to take his own young children to visit the son there.
He repeated his offer to assist the father in setting up another care service for the son. He told the Tribunal that the running of his own business only requires five hours of his time each week which leaves him with enough free time to assist with the set up and running of such a care service for the son, on a voluntary basis.
He described difficulties with the provision of care by Global but could not recall any problems with the earlier care provider, Drake. He agreed that he had witnessed the father raising his voice with Global care staff. This was because the father would become frustrated by the inconsistency and inexperience of the staff and the absence of a care manual for the son.
The cousin confirmed his attendance at a meeting with the managing director of Global, who had spoken of his difficulties in finding appropriate staff and that Global was unable to provide the care the father required for his son.
Were the father able to re-establish his own care service, the cousin described the father's role in such a service:
day to day care, and removing himself from the administrative side, and just caring for his son, overseeing his daily needs. He sees himself as moving away from the administration of the carers. He wants someone else to hire and fire carers… The ideal situation would be for him [not to supervise carers day to day]..he doesn't want to micro-manage.
If the son were to be moved to the USA, the cousin fears that he will be isolated from his extended family in Australia.
[35]
The uncle
In this decision, the younger brother of the father, who is therefore the uncle of the son, will simply be referred to as 'the uncle.' He told the Tribunal that he became close to the son in 1998, when he was living in Australia with the father. The uncle has children who are similar in age to the son, who would stay with the family during the time in Australia in 1998 and on his return in 2000. After the son's accident, the uncle was a regular visitor to the hospital and in 2009, when he relocated from Brisbane to Sydney, he spent six months working as a carer for the son:
The purpose for my time working as a carer with the son was so that I would learn how to care for [him] in the event that [the father] was no longer able to do so…Once I had the knowledge and experience I went back to my career. I still have the knowledge and ability to care for [the son] if ever required to do so. I was able to observe [the father's] ability to care for [his son]. [His son] was never sick or hospitalised during the time he lived with [his father].
Prior to the son being placed into the care facility, the uncle would visit him weekly. Since the son has been in the care facility, the uncle has only been able to visit him monthly. This is both because of the demands of his work and because he does not like the environment at the care facility. His own sons continue to visit their cousin.
In 2012, the uncle made application to the Public Guardian for guardianship of the son because he thought the son was unhappy. He was concerned by the fact that the son:
is no longer able to feed himself;
no longer has access to a sexual therapist recommended by Dr Browne;
no longer has carers who are of a similar age and who like the same music;
is less mobile; and
has less day trips than previously.
The uncle told the Tribunal that he remains committed to the son's care and that the father would like to buy a house for the son nearby to enable the uncle to visit daily. He agreed that, at times, he has fallen out with the father but reiterated his commitment to support the father and the son.
When the father created his own care service for his son, the uncle denied that the father intended to profit from it. It was simply a better, cheaper service for the son. He agreed that he had been paid for his work with the father's care service. He also told the Tribunal that the mother had asked him if she could work as a carer for the father's care service.
The uncle was shown medical notes pertaining to the father's depression, which included a commentary about a falling out between the father and the uncle.
The uncle told the Tribunal that he remembered the father being admitted to hospital following an overdose. He agreed that he had told the father's treating doctor that there had been tension between them. He agreed that he had probably believed that the father had been 'breathing down the neck' of the son's carers. He agreed that he may have said the father had a gambling problem. He denied telling the father's treating doctors that the carers were nervous and uncomfortable around the father. He told the Tribunal that he may have told the doctors that there were problems between him and the father in relation to the son's carers. He agreed that he and the father had argued about finding a property for the son.
[36]
Dr Sean Hosking
Dr Hosking is a principal guardian employed by the NSW Public Guardian. He has been the son's guardian since May 2013.
On 15 August 2013, Dr Hosking made a decision that the son should be accommodated in the USA with his mother, rather than either continuing to reside in institutional care or to reside in private accommodation with his father in Sydney.
In making the decision that the son should be accommodated with his mother in the USA, Dr Hosking had regard to:
the history of decisions regarding the son's care and accommodation;
information provided by the father, including his care proposal for the son;
information provided by the mother, including her care proposal for the son;
the views of the son;
the son's relationship with family living in the USA and in Sydney; and
medical information.
In deciding that the son should be accommodated with his mother in the USA, Dr Hosking noted the breakdown of the son's previous care arrangements and expressed his concern that the father 'may have difficulties working collaboratively with other involved parties.' He considered the mother's proposal to be feasible and well-thought out, noted that she had been the son's primary carer from his birth to the age of eighteen, and had retained a close and supportive relationship with him. In his decision, Dr Hosking found that the son was able to express a view about where he would like to live and that his consistent preference was to live with his mother in the USA.
In oral evidence before the Tribunal, Dr Hosking confirmed that in making his decision, he had considered all principles contained in section 4 of the Guardianship Act, giving paramount consideration to the son's welfare and interests and also to his views. He agreed that in making his decision, he had not had regard to any materials for the period between 2004 and 2009. He agreed, however, that this period appeared to have been a successful period in terms of the care provided to the son. He agreed that following the father's withdrawal of care services by his care company, the mother had encouraged Global to employ carers who had previously worked for the father's care company. He was unaware that Global had previously withdrawn care services for the son.
In considering the son's family relationships, Dr Hosking had looked at family visits to the son at the care facility but had not made enquiries about family visits to the son while he was living in the rental premises.
He agreed that running notes kept by Global Services revealed issues of escalating conflict between carer providers and the mother, particularly in relation to the high rotation of carers for the son. He also agreed that both the mother and the father had complained about the level of care provided by Global to the son and the absence of a proper care plan and protocols.
Dr Hosking accepted that the running notes referred to Global staff feeling intimidated by the father and that according to the notes, staff members resigned both as a result of the father's behaviour and as a result of the mother's behaviour. Dr Hosking confirmed that limitations had been placed on the father in relation to his accompanying his son with carers on day trips.
He agreed that Global running sheets notes for 6 October 2011 stated that if a decision was made by the Public Guardian to send the son to a care facility, neither the mother nor the father were to be told. He agreed that on the information before him, apart from one complaint made by a relative of the father who was working at the father's earlier care company, all complaints made against the father were by Global or by the care facility.
Dr Hosking agreed that his earlier view that the father had been largely responsible for the chaos within the son's household were not supported by the material shown to him during his oral evidence. He agreed that in his decision he had not considered carer complaints against the mother. He remained of the view, however, that the problems caused by the father were more significant to those caused by the mother. He agreed that as a decision maker, he relies on the views of care givers and does not have the resources to undertake his own investigations.
In regard to the financial viability of the proposals of the mother and the father, he relied on advice from the NSWTAG. He told the Tribunal that it is his job to seek a recommendation from NSWTAG and not to delve into the calculations made by NSWTAG. Having considered the 2015 report by Mr Pound in relation to possible exchange rate fluctuations, Dr Hosking agreed that there was a question mark as to whether there would be sufficient funds to last the son's life time, were he to be accommodated in the USA.
[37]
Dr Bodil Broeng-Nielsen
Dr Broeng-Nielsen is the son's general practitioner. Previously, she was also the general practitioner for the father.
In a report dated 9 July 2012, she described spasticity as being the son's main problem and confirmed her view that both the father and the mother want the best for their son and that the care facility, which has expertise in brain injury, is able to provide appropriate care for the son.
She was referred to notes taken by Dr Hosking that she had stated
that [the son] came to Australia initially on a temporary basis, not a permanent basis, and grew up in the US with his mother. He has effectively been 'trapped' here subsequent to the accident' and 'that the mother in her assessment is better able to care for [the son].'
She told the Tribunal that, at that time, she hadn't known that the son had applied for permanent residence. She agreed that the words 'trapped in Australia' were written in the notes but couldn't remember exactly what she had said. She agreed that if the son had made a decision to become an Australian citizen, she wouldn't maintain the view that he was 'trapped in Australia.'
She told the Tribunal that she believed the son could give a yes/no response to simple questions and was able to express his likes and dislikes. She was not in a position to say whether the son had the ability to understand consequences.
She told the Tribunal that she had been impressed with the mother and her care of the son but was unable to say whether the mother was a better carer than the father.
[38]
The father
The father, who is retired, provided four affidavits in support of his application.
He confirmed that he and the son's mother had separated in 1987 and that following the separation, he had weekly contact with his son and extended contact over the summer holidays. Both he and the son travelled to Australia in 1998. A visa entry in the son's passport confirms that on 27 April 1998 the son was granted a subclass 309 (Provisional Resident) visa. Entries in the son's passport confirm that he departed Australia on 9 February 1999.
According to the father, the son had a disagreement with his mother and step-father on his return to the USA in 1999 which culminated in his leaving the family home to stay with a friend. The father stated that when the mother and stepfather refused to fund the son's ticket to return to Australia, the father arranged to reimburse a friend for a ticket he purchased on the son's behalf.
Passport entries confirm the son's re-entry into Australia on 4 July 2000.
In his affidavit, the father lists the family members who had contact with the son after his return to Australia. In all, he names fourteen family members, including cousins similar in age to the son. The father stated that after the son's accident, his cousins were frequent visitors to the hospital. He stated that prior to his accident, his son showed a strong connection to his father's middle-eastern heritage
The father gave details of the care he provided his son after the accident:
I arranged the carers and for many years managed his finances. In the whole time..he was never hospitalised. His finances were well-managed and I provided [him] with opportunities to enjoy life. He had outings with his cousins. He also had visits at home from his cousins and friends. I encouraged [him] to use his limbs as much as possible. I encouraged him to feed and was successful in helping [him] reach a point where he was able to feed 3 times a day.
He provided a partial chronology of the care provided to his son:
In October 2003, the son was released from hospital in the father's care. Whilst in hospital, Heartbeat Disability Services had been used to provide care for the son.
From October 2003 to February 2008, Global had provided care for the son. The father terminated Global's contract in 2008 because of the high expense of the care, the high turnover of carers and the failure of Global to develop a care plan manual.
In February 2008 he employed Drake to provide care for the son. The father stated that Drake provided a good service. Statements of support from carers with Drake are attached to the father's second affidavit.
In 2009, the father established his own care service. This, he stated, was to reduce costs of care. A letter by one of the carers attesting to the high quality of the care provided by the service is annexed to the father's affidavit. The father's care service employed the uncle as a manager and the father's now partner as a carer. In his statement, the father stated that he did not draw a wage for managing his son's care however, in evidence before the Tribunal, he said that he had paid himself $400 per week. He told the Tribunal that he thought it was fair for family members who were caring for the son to draw a wage for their work.
In 2010, the father was removed as financial manager for his son.
In 2011, the father was consulted during the preparation of a care plan manual and instructions for carers by Access Brain Injury Services.
The father stated that previous carers employed in his care service would be prepared to return to care for the son. It is the father's proposal to re-establish his own care service for the son, to purchase a home for the son close to his extended family and to have the uncle work as a carer for the son. This is because the father expects the uncle to outlive him and wants 'the security of knowing that if [the son] outlives [him] he will have [the uncle] to rely on.'
The father told the Tribunal he would like to live in the house with his son. He confirmed that he had met his partner in 2009 while she was working as a carer for the son and that they had subsequently entered into a de facto relationship. It is his intention to remain in a de facto relationship with his partner were he to again share a house with his son. He described his partner as a remarkable person. He agreed that after they had begun a relationship, his partner had continued to be paid as a carer for the son.
He told the Tribunal that the mother would be welcome in the house. In answer to the question as to whether the father's partner would vacate the house when the mother was in Australia, the father said that would depend on the mother. He agreed that when the mother came to Australia he could take the time as respite. His evidence indicated a difficult relationship with the mother.
The father expressed the following concerns in relation to the son being cared for by his mother in the United States:
he will have no family there apart from the mother which will make care difficult as she ages;
the mother has health concerns that include diabetes, sleep apnea and high blood pressure;
the mother has cared for the son for only short periods of time;
the step-father has had a leg amputated above the knee and would not be able to assist with the son's care;
the son's funds would be quickly depleted if he had to pay for treatment and care in the USA; and
the son's funds may be taxed should he return to live in the USA.
According to the father:
[The mother] will always be welcome to come and visit [the son] in the home and I will ensure that a room is available for her to use as her own when she comes to visit.
I am aware that there are suggestions made by staff [at the care facility] that I have been argumentative and obstructive toward them. I have struggled with watching my son's condition deteriorate when he has been [at the care facility]. He has lost weight, strength and health..My frustrations have boiled over at times as I can't sit quietly and watch my son waste away. It has upset me to see my son revert from being able to eat food to having to take his food through a tube because they have not been able to train people…to feed him.
The father accepted that he has had problems with alcohol and depression, writing that:
I do accept that sometimes I drank heavily. I was at the time suffering from depression and Post-Traumatic Stress Disorder. I did self-medicate with alcohol for some years before seeking out professional help…With the help of counselling I have reduced my drinking.
In 2011 after [my son] was taken from my care and placed into [the care facility] I did fall into a further state of depression. At the worst of it I admitted myself to [a clinic]. I am able to seek professional help when and if I need it. I have not had any thoughts about suicide for the past 3 years now.
Before the Tribunal, however, he agreed that he had admitted to hospital on two occasions in 2013 following attempts to commit suicide. He stated that he was on medicine for depression and mood stabilisation. He agreed that his strained relationship with the mother was a stress factor for him. He agreed that he feels unfairly isolated from caring for his son. He agreed that his alcohol consumption had increased in 2011. He told the Tribunal that his suicide attempts had been triggered by particular stressors.
He agreed that in 2009, a property that had been purchased in Sydney for his son had been sold because of escalating building costs. He agreed that he had looked in Costa Rice and Florida for appropriate accommodation for his son.
He agreed that he and his elder son were estranged.
When asked whether he was hyper-vigilant of his son's carers, he told the Tribunal that he expected carers to do their job well. He was questioned about disputes he had had with his son's carers. In relation to a statement made by one of the son's carers alleging verbal abuse by the father, the father denied raising his voice and spoke of his concern that the carer had allowed light to shine into the son's eyes while he was trying to sleep. He denied swearing at staff. He agreed that he would become frustrated with staff who were not able to provide appropriate care to his son. He agreed that there was a 'negative vibe' between his partner and the mother (his ex-wife) and that the mother has a problem with his partner, as she did with the father's previous partner. He agreed that on occasion he had raised his voice at his son's carers at the care facility and agreed that he is dissatisfied with the care provided for his son there.
[39]
Albert McDermott
Mr McDermott is the managing director of Global, which he describes as one of the largest suppliers in NSW of disability support workers to community group homes and individuals living in their homes. He told the Tribunal that the training given to his staff including training in first aid, lifting and handling, back care, the administration of medication and training in epilepsy.
Global first began caring for the son in 2003 when he moved to rental premises with his father following his discharge from hospital. Soon after Global commenced caring for the son, Mr McDermott began to receive complaints that the company's booking consultants were being verbally abused by the father and that the father was 'constantly interfering in the day to day care of [the son].'
According to Mr McDermott
It became evident to me from early on in the provision of services that Global was not meeting the wishes of [the] father.'
In early 2005, Mr McDermott employed a staff member with nursing qualifications to co-ordinate the day-to-day running of the son's care. She resigned in December 2007. According to Mr McDermott, she was because the father was rude and aggressive towards her.
According to Mr McDermott, between 2003 and 2008, there were many instances of the father shouting and yelling at care staff which resulted in many of them requesting to be taken off the son's roster. Mr McDermott wrote that:
Over that period, I was replacing staff constantly. Despite the larger pool of staff, Global found it harder and harder to find staff who were willing to go [there], I am aware that care staff told other staff that [it] wasn't a good place to work.
On 4 February 2008, Mr McDermott wrote that he attended a meeting with the father, the father's solicitor, the cousin and a Global Consultant. When the father would not give him a guarantee that he would stop interfering with the son's care, Mr McDermott advised him that Global would be withdrawing its care services to the son. Global stopped providing care services to the son on 3 March 2008.
Upon request by the Public Guardian, Global resumed care for the son at the end of January 2011 at which time the mother was in charge of the day to day coordination of the care. Mr McDermott writes that:
There were a number of occasions that we sought the support of the Public Guardian in relation to [the mother's] requests of staff. However, Global was able to resolve the issues without any negative impact on [the son]'s overall care.
I am aware that a number of staff withdrew from the roster as they felt that [the mother] was over-involved in [the son's] care and found it hard to work with her. There were some complaints from the carers that [the mother] was set in her ways on some aspects of care but overall, the complaints were manageable and Global could work with [the mother].
When shown running sheets from the tender bundle outlining a series of complaints made by the mother about staff members and also complaints by staff members about the mother's management style, Mr McDermott agreed that these were examples of complaints that Global found manageable. He agreed that he did have a general recollection of Global staff withdrawing from caring for the son as a result of the mother's management style. He agreed that this had an impact on the son's care. He accepted that there had been ongoing complaints over a six month period in 2011. He accepted that Global staff were unwilling to be rostered to care for the son because of the mother's hyper-vigilance.
Before the Tribunal, he stood by his statement that 'Global was able to resolve the issues [with the mother] without any negative impact on [the son's] overall care', on the basis that Global was always able to provide staff as they could always deploy new staff. He agreed that it was disadvantageous to the son to always be seeing new faces and that this would have an impact on the son's care. He agreed that in light of the documents shown to him, the conclusion reached by Global was that both parents were impacting on Global's care for the son but that their impact was of different magnitudes and that they were always able to solve disputes amicably with the mother.
In evidence before the Tribunal, Mr McDermott explained that once the Public Guardian had guardianship over the son, he would have agreed to provide services to the son because he knew that he could approach the Public Guardian with any problems arising. When shown documentation advising that six Global staff members had resigned due to interference by the mother, Mr McDermott told the Tribunal that he hadn't previously been aware of this.
In evidence before the Tribunal, Mr McDermott agreed that with the exception of ten documents contained in the agreed tender bundle, the source documents relating to the father's behaviour with Global staff could not be found. He agreed that, because of this and particularly in the absence of running sheet notes, it was impossible to consider the reasonableness of the staff conflicts with the father. He agreed that one of the few specific examples of the father's behaviour, namely his only allowing staff a small book light or torch during night shift so as not to disturb the son's sleep, did not show abusive behaviour by the father.
When the mother returned to the USA in September 2011 and the father moved back into the rented premises, Mr McDermott reported calls from carers stating that 'they would not continue to work there if [the father] steps into the role as the manager.' On 30 September 2001, Mr McDermott wrote to the Public Guardian that
Global could not comply with a Speech Therapist recommendation that all staff should have worked with [the son] for at least a week before they commenced feeding him. As the longstanding staff were refusing to stay and new staff couldn't be retained, I need to inform [the] guardian of this situation. In that letter, I also advised that Global would not continue to provide services if [the father] was allowed to continue to direct the carers as I wouldn't have any carers available to go to [the son].
Before the Tribunal, Mr McDermott stated that there would have to have been a care plan for the son but that he couldn't visualise it. He told the Tribunal that he couldn't remember seeing the care plan but that it would be 'impossible for Global staff to provide services without a plan in place.' He was under the impression that Global would have provided a statement of duties to staff. When shown a document prepared by Access Brain Injury Services in September 2011 for the son entitled Care Manual and Instructions for Carers, Mr McDermott was unable to recall whether Global had ever provided a similar document to carers although he did believe that there was a care plan to provide services to the son.
Mr McDermott agreed that the father had high standards for his son's care, that he was personally involved with the care, and that the father was well-trained in caring for his son, in that he 'trained himself.' He told the Tribunal that he had not sought to mediate any disputes with the father with a case manager.
A letter dated 20 February 2009 from Mr McDermott to the father thanks him for meeting with him a couple of weeks earlier in relation to Global providing staff for the son and advises that Global does have suitable staff to care for the son. In evidence before the Tribunal, Mr McDermott could not recall this meeting.
[40]
George Mallos
Mr Mallos is the former solicitor for the son. In his statement, he describes a 2008 meeting between the head of Global, the father, the cousin and himself. At the meeting, the father expressed his dissatisfaction with the standard of care being provided to the son. According to Mr Mallos, the head of Global advised the father that it 'was all too hard and that he would prefer to no longer continue providing care services for [the son].'
Mr Mallos expressed the view that:
Global, at the time, was not providing a satisfactory level of care and despite our efforts to address these issues with Mr McDermott he made it clear that he would prefer to walk away from the issues rather than entertain the concerns raised by [the father]…Although Global was, at that time, being paid in excess of $17000.00 per week Global did not have in place any care manual at all, they did not have in place proper procedures, rosters or records for the care being provided. Again, it is my recollection that Global was not prepared to assist me with these issues even though such records were, on the medical advice, reported to be essential for ensuring continuity and best care practices… Another issue which arose related to the fact that there was no continuity of care staff with backpackers and overseas students commonly being engaged for short intervals only.
Before the Tribunal, he denied that his 2008 meeting with the father, Mr McDermott and a Global consultant had been convened so that Mr McDermott could complain about the father's behaviour. He denied that Mr McDermott had refused to provide care to son without a commitment from the father. He thought that Mr McDermott had used the words 'all too hard' in relation to the son's care.
[41]
Public Guardian
The Public Guardian seeks to maintain its internal decision dated 14 November 2015 in which it was decided that the son should be accommodated with his mother in the United States. The Public Guardian notes that there is no challenge to the Public Guardian's view that it, and on review this Tribunal, has jurisdiction to decide that the son should live outside NSW.
It is common ground that no party bears a legal onus in these proceedings. The Public Guardian accepts that in some circumstances, a party has an evidentiary onus to introduce evidence sufficient to persuade the Tribunal of a particular fact. The Public Guardian does not accept that this is the case here. This is because all documents, including the Global documents, were made available to all parties and the applicant was able to give evidence about them. For this reason the Public Guardian submits that it has no forensic onus in relation to matters pertaining to the father's behaviour with Global or in relation to any other matter in these proceedings.
In the light of the evidence of Ms Vass and Dr Browne, the Public Guardian agreed that the son's cognitive functioning is such that he could not appreciate the consequences of his decisions. For this reason, the Public Guardian conceded that no submission would be made that the decision should or could be upheld on the basis of the son's wishes.
On the basis of the leading nature of the questions and the possibility of the son being fatigued, the Public Guardian submitted that little weight should be given to the answers given by the son to Ms Ramjan in their meeting at the care facility.
It is the Public Guardian's view that little weight should be given to the fact that the son obtained permanent residency in Australia, as it has not been suggested that the son would never return to the USA. No adverse inference should be drawn from the refusal of the mother and stepfather to fund the son's return to Australia given the son's history of travelling back and forth to Australia.
The Public Guardian submits that the proposals by both the father and the mother are affordable. In determining this, the Public Guardian relies on the original and updated evidence of Mr Malcolm Pound. The Public Guardian notes that Mr Pound's calculations assume a life expectancy of 80 years whereas the son's actual life expectancy is 54 years. Mr Pound's evidence is that even with a falling Australian dollar against the US dollar, the mother's proposal remains viable.
The Public Guardian relies on the advice of Baker & McKenzie that regardless of his residence, as a US citizen, the son would be liable to pay US Federal income tax on his worldwide income. This means that he will generally have the same US Federal Income tax treatment regardless of his place of residence. Similarly, he should receive the same amount of foreign tax credits and medical expense deductions. It is the Public Guardian's submission that, overall, there is ultimately little difference in the son's tax position whether he lives in Georgia, United States or NSW.
Relying on the evidence of Malcolm Pound, the Public Guardian also submits that the son's funds will continue to be managed from Australia by the NSW Trustee and Guardian even if the son were to reside in the United States.
According to the Public Guardian, it is the mother's evidence that she does not want to manage her son's funds. Any request to do so would require an order from the Guardianship Tribunal. On the basis that the mother does not wish to manage the funds, the Public Guardian submits that Mr Pollan's evidence on conservatorship law in Georgia is irrelevant.
In light of Mr Pollan's evidence, the Public Guardian submits that the son would be able to obtain private insurance and that any hospitalisation costs would be covered by both private health insurance and Medicaid. Costs paid by Medicaid would then become a debt to the state of Georgia
The Public Guardian highlighted the son's family connections in the United States which include the son's half-brother and family, his grandmother and his mother's siblings in addition to his stepfather and his stepfather's extended family. He submitted that the stepfather has regular contact with the son by Skype, has a good relationship with him prior to his accident and is well able to assist in the son's care despite the amputation of his lower leg.
Mr Moore submitted that in considering the son's relationship with the stepfather:
more weight should be placed on their current relationship rather than the evidence of their relationship in 1999 and 2000;
no weight should be placed on the stepfather's answers to questions about the son's sporting and television preferences; and
any suggestion that the two had an argument of a political nature should be found to be simply speculative.
The son's family in Australia include his father and his paternal relatives. Because the son's cultural background is mixed, it is the Public Guardian's view that the cultural background on his father's side should not outweigh the importance of his mother's cultural background.
It is the Public Guardian's submission that the mother is as willing and able to care for her son, a view shared by Dr Clarke and by the father in their oral evidence to the Tribunal. The evidence before the Tribunal is that between 2002 and 2012, the mother spent five years in Australia caring for the son.
It is the Public Guardian's view that any family members who are employed to care for the son should be paid for their services. According to the Public Guardian:
It's a big ask for someone who's going to spend 40 hours a week caring for [the son] not to be reimbursed at an appropriate rate.
The Public Guardian is of the view that the son's welfare and interests are best served by a move to the USA.
It is the Public Guardian's submission that the father's continuing aggressive and intimidating behaviour towards nursing and support staff means that staff will continue to withdraw from caring for the son. Under the mother's care, the Public Guardian submits, there is less likelihood that carers will withdraw.
The Public Guardian does not consider the standard of care provided to the son by the father's own care service between 2009 and 13 January 2011. Rather, the Public Guardian focuses on the period between February 2011 and January 2012 when Global provided care to the son.
In relation to the care provided to the son by Drake in 2008 and 2009, the Public Guardian states that:
It appears that, for the relatively short period of its involvement with [the son's] care, Drake..provided a service without the sort of problems encountered by Global.
The Public Guardian cites the following instances of the father's problematic behaviour:
his suicide attempts and consequent hospital or clinic admissions;
his excessive consumption of alcohol;
his over-involvement in his son's care;
his rudeness to nursing staff; and
his alleged treatment of the mother.
The Public Guardian submits that it is as a result of the father's problematic behaviour, coupled with that of his partner, that an access order was made limiting both parties' contact with the son and preventing the father's partner from having any contact with care staff. It is the Public Guardian's submission that it was the behaviour of the father that led to Global withdrawing its services and the son being accommodated in the care facility.
In light of the evidence of the father's behaviour, it is the Public Guardian's view that the father's proposal of in-home care for his son is not sustainable. Neither restricting the father from having an official role in caring for the son and in dealing with staff, nor the appointment of an independent guardian would solve the situation because the father would retain a practical role in the son's care.
The Public Guardian concedes that on the evidence, carers also experienced problems dealing with the mother. It is the Public Guardian's view, however, that the Tribunal should accept the evidence of Mr McDermott that the father's behaviour was at a 'different level, different magnitude that that of [the mother] who was more amicable.'
The Public Guardian notes that in light of the mother's absence from Australia between 7 September and 7 November 2011, she could not be held responsible for any disputes with carers during this time.
The Public Guardian submits that no evidence was presented to contradict the evidence of Dr Broeng-Neilson that the son is fit to travel in a specialist medical evacuation.
The Public Guardian and the applicant agree that when the son has been admitted to hospital as a public patient, his expenses have been covered by Medicare. It is accepted by all parties that the son also has private health insurance.
The mother is eleven years younger than the father which, the Public Guardian submits, is a factor weighing in favour of the son being accommodated with her.
The Public Guardian is concerned that the father's proposal is a reversion to his previous in-home care for the son. According to the Public Guardian:
There is no evidence that suggests that [the father's] behaviour that caused the breakdown of care services in the past would be likely to change, nor is there evidence that [the father] has implemented any strategies to deal with the stresses that are likely to arise in the future if he were to be the main parent responsible for [the son's] care.
In relation to the father's desire for his partner to reside with him and the son, the Public Guardian noted her failure to give evidence in the proceedings and submitted that the partner:
was a significant source of conflict in the [rental premises] in 2011. Her presence is likely to continue to cause conflict with [the mother] and, based on her previous interference with the administration of [the son's] care, with [the son's] carers in the future. These factors impact on the sustainability of [the father's] care proposal.
[42]
The (applicant) father
The father's proposal is that the son remain in Sydney and that a purpose-built house be acquired for him to live in which would include appropriate accommodation for the mother and stepfather. To save costs, the father would seek to re-establish his own care agency with the cousin acting as coordinator and with carers being directly employed by the agency. The applicant submits that the cousin would be an appropriate coordinator given his involvement with the son, his extensive business experience and the fact that his current business requires only five hours of his time per week. As an alternative, care could be provided by an outside service such as Drake.
It is the father's submission that when the son returned to Australian in 2000, he intended to stay in Australia permanently. In support of this submission, the father notes the son's application for and grant of permanent residence in Australia; his mother's acceptance in oral evidence that when the son returned to Australia in 2000, it was his intention to remain permanently in Australia; and the son's responses to questions posed by the Guardian Ad Litem.
The father submitted that the Tribunal should accept Dr Hosking's view that the son had stronger family ties in Sydney than in Georgia. In support of this submission, the father noted that:
the son had only lived in the town where his mother and stepfather now live for 16 months prior to his return to Australia in 2000;
on the evidence, the son has strong connections with approximately 20 members of his extended family who live in Sydney. This is shown by the schedule of visitors shown in the Drake progress notes; and
at its highest, the son has met members of his stepfather's family on some social occasions.
The father submitted that the Tribunal should find that prior to returning to Australia in 2000:
the son had had disagreements with his stepfather:
there is no explanation for the son's decision to leave the family home and move into a trailer home with friends;
the son told the father's former partner that he had argued with his stepfather; and
the son had made adverse comments about his stepfather to the cousin.
In relation to the son's responses to Mrs Ramjan, the father submits that considerable weight should be given to them in light of Dr Browne's evidence that the son does retain 'old memories' and in light of the nature of the question which was closed and did not require any ability to understand the consequences of the answer. The father submits that on this basis, weight should be given to the son's communication that he had had an argument with his stepfather prior to returning to Australia in 2000.
For the following reasons, the father submits that the son's family support in Sydney are far stronger that his family support in Georgia:
the brother lives in Canada where he has a business and young family. He had no contact with his brother from 1994 until the son's accident in 2002. There is no evidence of cards or calls and no evidence of continuing contact between the brothers. It is the applicant's view that any support the brother could offer the mother would be minimal;
the mother's relatives do not live in Georgia; and
none of the stepfather's family have visited the son since the accident.
In response to the mother's intention to promote contact between the son and the stepfather's family, who do live in Georgia, the father submits that:
given the evidence of Dr Browne as to the difficulties [for the son] in creating 'new memories', [it is] going to be extremely difficult [for the son] to be able to form any sort of relationship with [the stepfather's] extended family. Essentially he will be living among strangers with only his mother, and to a lesser extent [his stepfather] being strong contacts with his life before the accident.
Conversely, it is quite clear from the evidence of [the father] and supported by [the cousin] and [the uncle] that there is an available network of support in Sydney to give support to [the son], particularly in the event that [the father] is unable, for whatever reason to continue that support. The summary from the Drake notes of the visitors [to the son] and his activities…showed that he was visited by family as well as friends while living [in the rented premises].
The applicant submits that on the evidence before it, the Tribunal could not be satisfied that the mother's proposal is financially viable. This is contrary to the opinion provided by Malcolm Pound of the NSWTAG that the proposals by both the father and the mother are financially sound.
The applicant submits that the Tribunal could not be satisfied that the mother's proposal is financially sound for the following reasons:
Mr Pound's calculations were based on the son having a life expectancy of 80 years while the damages assessed by the Supreme Court were on the basis that the son had a life expectancy of 54 years. According to the applicant, this age was used solely as a means to calculate damages, not as a reliable 'end of life' figure for the son;
According to Mr Pound's report, were the son to relocate to the United States and the Australian dollar to fall below USD0.80, on the figures provided before him, the son's estate would be depleted when he was approximately 70 years old. If the Australian dollar were to fall below USD0.70, the son's estate would be depleted when the son was approximately 62 years old;
The mother's proposal does not explain the basis for the construction costs of the son's proposed accommodation in the United States;
If the son's funds were to be depleted prior to his death, the evidence of Mr Pollan is that he would not be able to access his stepfather's entitlement to social security benefits.
The applicant submits that:
It is obvious from the evidence of David Pollan that the resources available to assist [the son] if he is not able to afford them from his own resources are, at best, rudimentary. It would seem that ultimately, he would end up in some form of nursing home of indeterminate quality.
There is uncertainty as to the son's liability for taxation in the United States. In particular, the taxation position of income received from the son's super fund in Australia remains unclear as does the extent to which the son would be able to deduct his expenditure on home care. In the father's submission, the effect of these uncertainties could well be that the son's capital fund could be severely depleted and given the already existing uncertainty as to the availability of funds to meet his future expenses in the USA this could have further serious impact upon that capacity.
According to the father, it is common ground that during the Supreme Court proceedings, the assumption was that the son's care would continue in Australia and that those assumptions underlay the various costs that were provided in evidence in the assessment of damages for the son.
The father referred to evidence by the mother that she had made enquiries to one financial manager in relation to the relocation of the son's funds. The stepfather's evidence was that such enquiries had been made to three people. Furthermore, in her letter to the father on 19 June 2013, Ms Bateman states that the mother advised her at the Guardianship Tribunal hearing in July 2012 that once the son is in the USA, she intends to apply to have the son's funds transferred to her for her to control.
It is the father's submission that, on the evidence before it, the Tribunal could find that the mother intends to make application to transfer the son's funds to the USA but is unable to provide a definite plan as to the form of investment, the return of such monies or the actual administration of the monies.
It is the father's submission that the failure of the mother to provide clear and cogent evidence as to her intention as to the administration and investment of funds in the USA raises a serious question as to whether the mother's proposal is in the paramount interest of the son.
According to the father:
given the issues of unknown factors that may affect the financial viability of [the mother's] proposal (tax liability, finds and variations in the Australian dollar, upfront costs) one would have concerns as to whether or not there will be sufficient funds in the future to be able to provide the high level of care needed for the son. Further, given that the evidence of family support could best be described as statements of good intentions, there would be concerns as to whether [there] would be sufficient..family support to supplement the professional assistance.
In relation to the ability of each parent to liaise appropriately with nursing staff and other carers, the father notes the complaints by Global workers in relation to his conduct towards them and queries why such complaints were not made by Drake carers or by carers as his own care service.
The father concedes that he suffers from Post-Traumatic Stress Disorder and that he has been hospitalised following incidents of self-harm. He notes the evidence that he has been on a new regime of medicine for the last 18 months and that this has assisted considerably in controlling his behaviour.
The father refers to conflicting evidence in relation to the 2008 meeting between Mr McDermott, the father, Mr Mallos and the elder cousin. While Mr McDermott told the Tribunal that he went to the meeting specifically to withdraw Global services from the son's care unless the father gave an undertaking he would not interfere with the staff, the evidence of the other parties to the meeting is that when the father expressed his concern about the care and quality of the Global carers for the son, Mr McDermott withdrew Global services, saying that 'it's all too hard.' The applicant submits that Mr McDermott is not a credible witness in light of the vagueness of his evidence, his lack of notes of the meeting and his lack of original documentation supporting his claim of the father's interference with staff.
[43]
The mother
The mother set out details of her care for her son during his childhood and her hopes for him in the future, including getting an online college degree. The mother highlighted the fact that her son had spent his childhood in the USA with members of his family there. It is her submission that 'a family should not be looked at as how many members there are in it but looked at more of what the members that there are can do for the individual.'
She queried the commitment of the son's extended family in Australia and the regularity of their visits to the son in his care facility. She noted that the cousin had come to the care facility on one occasion and that the uncle had visited a few occasions when she was there. She noted the lack of entries by family members in the visitor's book for the care facility and the cousin's evidence that he did not visit the son's care facility with his family because he didn't want the children to be scared by it.
According to the mother, her son
spent his entire life around his family in the United States compared to a short time here with his father's family following by this terrible accident resulting in [the son] not being able to spend time to get to know them better.
She agreed that the father was appointed financial manager at a time when the son had only a small sum of money. The father was appointed guardian because the mother was living in the USA. It was for this reason that she was appointed alternate guardian. She submits that the father was abusing the son's funds by withdrawing money for his personal use. It is the mother's view that neither she nor the father should be the son's financial manager.
She agreed that the father is a loving and caring parent and noted his agreement that she is as familiar with the son's care needs as he is.
She spoke of the intention of her son's brother to have a proper relationship with him and for his children to be part of the son's life. She submitted that the brother does not stand to financially benefit from his relationship with the son.
The mother states that:
I deserve the opportunity of taking [the son] home as he wishes. [The father's] plan does not include me and where it does, I am placed in the back and of no importance. I cannot understand why it is that even should [the father] not be able to care for [our son], he intends to hand this responsibility over to a brother. It is as if I do not exist. That is not fair to [our son] or me.
It is noted that the mother agreed to the concession made by the Public Guardian that, in light of the evidence given to the Tribunal by Ms Vass and Dr Browne, a submission would not be made to the Tribunal that the decision of the Public Guardian could be upheld on the basis of the son's wishes.
The mother denies an intention to become her son's financial manager. Instead, she envisages that Mr Pollan would work in conjunction with the NSWTAG to provide what would be best for the son in the USA. She denies having spoken to Ms Bateman about her son's funds.
According to the mother, Mr Pollan 'will be able to ensure [the son] takes advantage of all tax laws as they apply to disabled individuals in the United States. [The son] will also be entitled to Social Security Disability as well as Medicare which will help to offset any costs that he incurs.'
She described members of her own extended family who have nursing qualifications and submitted that her son should be given the chance to spend his life with the family he grew up with. She submitted that the father's family offers nothing more than 'good intentions.'
She confirmed that her relationship with the stepfather remains strong and that, to her knowledge, the relationship between the son and the stepfather was always a good one. She confirmed that the stepfather had helped the son to get a job and had given him money to buy a car. She stated that she had always had an open relationship with her son, was unaware of any problems between the stepfather and her son and was confident that her son would have informed her of any such problems. She stated that although the stepfather was Jewish, the family does not celebrate Jewish holidays with the exception of Hanukkah. She didn't agree that her son had a 'deep connection with Palestine interests.'
She stated that her husband's prosthetic leg is irrelevant to the Tribunal's decision and that he has had no loss of ability because of it.
She agreed that she had refused to pay for her son's return trip to Australia and had requested the stepfather not to provide the money. She wanted her son to make decisions about his work and schooling rather than keep flitting back and forward from Australia. If he wanted to return to Australia, it was the mother's view he should earn the money to do it.
The mother noted that Mr Yuhas would be employed as the son's rehabilitation consultant or life care planner. She supported his evidence that rather than reinventing the wheel, Mr Yuhas would be 'insuring that [the son] has an easy transition.' The intention is for the son's finances to continue to be managed by the NSWTAG. According to the mother:
Steve Yuhas, as case manager, will be able to work closely with NSWTAG to insure that the son's expenses are taken care of.
The mother confirmed the following plan for her son's proposed return to the USA:
the son would travel by air ambulance accompanied by her and by medical staff;
the son would be accommodated in a temporary rehabilitation centre to be examined and for the commencement of his care plan. The mother will stay with him at the centre;
pending construction of a new home, the son would live in a transitional living centre. According to the mother, the centre is aware that she would be staying there with her son;
The purpose built home to be built for the son will be built in accordance with advice from experts. It will be one storey and ranch style.
According to the mother
It is important for family to be involved in caring for a loved one. This is how I was brought up and how [the son] was brought up. This is how the [stepfather's] family is…You help each other out and your reward is in doing so and sharing times together. You aren't paid to do these things.
The mother expresses the following concerns in relation to the son remaining in Australia under the care of his father and the cousin:
[The father] is just not able to properly and safely care for [the son] any longer. Maybe it is age (69) or his mental health, but I am not comfortable leaving [our son] under his care. Family members that help care for [our son] will continue to be paid. [The cousin] feels he can run a care business and act as manager but he knows nothing about medical healthcare and [our son] is not a 9-5pm job. It is one of my biggest fears, that an unprepared, untrained person such as [the cousin] would be put in charge of [the son's] health and welfare. This is truly a job for professionals that have a thorough training and background in healthcare. When [the father] realises that [the cousin] is not capable of doing the job, [the father] will install himself.
The following is of concern to her with regard to the father's proposal that the son remain in Australia with him:
the fact that the father has no actual plan for the son's house or his future needs;
the evidence of the father's suicide attempts;
the father's aggressive behaviour towards Global carers including his niece;
the numerous complaints made against the father's partner;
her fear that the father would never allow a case manager to manage the son's care;
the interference of the father in the day to day care of the son.
She offered the following commentary in relation to the complaints made about her own behaviour towards Global staff:
The six employees that didn't want to return or that I asked not to return involved various health issues such as long nails or inappropriate attire.
The mother noted that Arabic is the first choice of language in the father's household and posed the question:
What will it be like for [our son] to live in an Arabic speaking household? I can say by experience when we came for a visit around 1985 that it is quite lonely when you don't know what anyone is saying around you.
The mother had the following concerns in relation to the behaviour of the Guardian Ad Litem, Ms Ramjan, during her visit to the son on 3 June 2014:
that although the mother was Skyping with the son at the time, Ms Ramjan had not advised her of her presence;
that Ms Ramjan's use of blinking to communicate with the son was inappropriate;
as part of her investigations, Ms Ramjan had failed to interview the mother about her relationship with her son;
the one-sided nature of her questions.
She submitted that no weight should be given to Ms Ramjan's interview.
She agreed that the younger cousin had been paid to care for the son but had quit 'because [the father] would not let him do his job.'
According to the mother:
It is unclear as to whether [our son] would have remained permanently in Australia. If this was true at that time, this was a young man with a long, healthy life ahead of himself thinking anything and everything was possible. Circumstances are not the same any longer and what he wanted is not necessarily what is best for his current medical needs. I have the ability and resources to make anything and everything possible for [our son] in the United States. If I don't know how to do it, I know who to call to help me.
She stated that she does not rely upon the support of her family to care for the son because he will have a case manager and paid nurses to manage his day-to-day care. She submits that no weight should be given to the fact that none of her family have come to visit the son in Australia given the distance and expense of such a trip.
In relation to the son's tax liability, she noted that as a US citizen, the son is required to report income earned overseas.
In relation to the possibility of the son entering into an irrevocable special needs trust, the mother submitted that
If [he] enters into an irrevocable special needs trust he would have to reimburse the State of Georgia up to the amount of medical assistance paid on his behalf for the period of the trust. Here in Australia, [he] will never be entitled to receive Centrelink benefits and any medical cost that get paid to Medicare during the year has to be reimbursed to Medicare at the end of the year. This sounds very much like a 'special needs trust.'
The mother submitted that there are 254 doctors relevant to her son's needs in her hometown in Georgia who accept Medicaid.
The mother made the following submission to the Tribunal:
Please don't allow [the son] to return to the environment that he was in living with [the father] and his partner. For whatever reason, they always had to cause such chaos and upset and [our son] has never lived like that in his lifetime. As mentioned in emails by carers, while I was there things ran smoothly for the most part and it was a good environment and then when [the father] would return it went back to chaos, people being afraid and not wanting to work…I've shown my dedication and love for my son not only by my actions but by the many trips that I have made to be with him. I am far from perfect but overall, I am very capable of making sure [our son] has the proper plan and professionals involved to make sure he has the best quality of life that he can have…This is big undertaking and if I could not do it, I would not have put a proposal through. I feel that my proposal is very solid and that the Public Guardian made the right choice.
It is the mother's submission that the son should not have to fund the costs of the Guardian Ad Litem in this case.
[44]
Guardian Ad Litem
The Guardian Ad Litem submitted that the Tribunal should set aside the Public Guardian's decision that the son be accommodated in the USA with his mother.
The Guardian Ad Litem submits that although no party bears the burden of proof in this matter, the Public Guardian has a practical or forensic onus to establish its decision was correct. Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1
In this case, the Guardian Ad Litem submitted that because the Public Guardian was in possession of information used to assess the father's behaviour towards carers and subsequently the viability of his proposal, it is the Public Guardian who bears a forensic or practical burden to show why reliance should be placed on this information.
The Guardian Ad Litem pointed to the following as evidence of the son's intention to reside in Australia on a permanent basis:
letters contained in the s58 documents, purportedly written by the son prior to his accident stating his intention to live in Australia permanently;
the son's application for permanent residency which was lodged prior to his accident;
the son's responses to questions by the Guardian Ad Litem in relation to which country he would like to live in. The Guardian Ad Litem concedes that it is unclear whether the son understands the consequences of living in each of the countries.
The Guardian Ad Litem submitted that Dr Browne's evidence in relation to the son's ability to communicate a choice is not reliable in light of:
the lack of primary evidence surrounding the circumstances of Dr Browne's questioning of the son;
the lack of evidence about the meaning attributed by the son to particular words such as 'live' and 'remain';
the inability to determine the son's cognitive functioning;
evidence that the son's mood is a variable that affects the reliability of his responses; and
the influence of the questioner.
The Guardian Ad Litem submitted that the variables of the son's mood and the conduct of the questioner would also affect the reliability of answers given by use of the assessment tool developed by Ms Vass.
The Guardian Ad Litem questioned the financial viability of the mother's proposal in light of the financial risks associated with the proposal.
According to the Guardian Ad Litem, these include the son's tax liability in the United States, where he may be deemed a US Person Designation for US Federal Income Tax Purposes. As a consequence of this, he would:
be liable to pay outstanding taxes on his income since he last paid tax (likely in 2002);
have a (federal) tax liability to a maximum of 39.6% should his annual earnings exceed $406 970 per annum, with a deduction for allowable off-sets, medical expenses and any applicable Foreign Tax Credit (although as the son has not paid tax in Australia on his settlement monies he would not appear to be entitled to a Foreign Tax Credit); and
be liable to a further 6% personal state tax excluding medical expense deductions.
In referencing the advice of Mr Pound in his reports dated 27 January 2015 and 2 February 2015, the Guardian Ad Litem highlighted the risks to financial viability of the mother's proposals in light of the uncertainty of future exchange rates between the Australian dollar and the US dollar.
The Guardian Ad Litem submitted that the son's eligibility for Medicare need not be resolved as it would not provide long term health insurance benefits but would be instead limited to 100 days rehabilitation.
The Guardian Ad Litem highlighted the requirements to be met by the son to enable him to be eligible for Medicaid. As highlighted by Mr Pollan, these include the following:
as the son's gross monthly income would exceed $2163, the balance of the son's income above this amount would be paid into a Qualified Income Trust. The trustee and beneficiary of the trust are unknown as is the process by which the trust could be terminated;
the son would be required to enter into a Patient Liability and Medicaid cost-share agreement;
the son would be required to enter into an irrevocable special needs trust which would result in any monies left in the trust on death being reimbursed to the state government of George, up to the amount of medical assistance paid on the son's behalf for the period of the trust;
if in receipt of Medicaid, the son would only be able to seek treatment from a list of certain medical specialists and would not therefore have freedom of choice as to who will be his practitioner;
The Guardian Ad Litem highlighted the following problems with the accommodation proposed by the mother:
uncertainty in relation to the availability and cost of accommodation for the mother at the evaluation centre;
lack of evidence of accommodation for families of patients at either of the transitional rehabilitation centre proposed for the son during construction of a purpose built home for him; and
lack of evidence of purchase and construction costs for the purpose-built home proposed for the son.
The Guardian Ad Litem expressed the following concerns in relation to the mother's alleged comment to Ms Bateman at the Guardianship Tribunal hearing in July 2012 of her intention to apply to have the son's funds transferred to her control:
the fact that the mother denies this in her statement of evidence, dated 22 June 2014, reflects badly on her credibility; and
the fact that the mother is a discharged bankrupt would suggest that she is not equipped to be her son's financial manager.
In relation to the son's family ties, the Guardian Ad Litem makes the following observations:
although the son has not lived with his mother since 2000, she has continued to care for him in a caring and consistent manner and is in frequent contact with him;
the son's brother has no existing relationship with him. The son's brother and family do not visit the mother in the United States;
the son's maternal grandmother is 80 years old and lives over four hours away from the mother. There is no evidence from the aunt in relation to her relationship with the son;
the son's maternal aunt and a named family friend both live four hours away from the mother. There is no evidence from the aunt or the family friend in relation to their relationship with the son;
the stepfather's family first met the son in 1999. There is no evidence from them in relation to their relationship with the son;
the stepfather lived with the son in 1999 and 2000. The stepfather has a lack of knowledge about the son including his date of birth and his interests. He has visited the son in Australia on four occasions;
there is no dispute that a paternal uncle worked with the son from 2000 to 2002 and spent weekends together with the extended family;
there is no dispute that the son stayed with the uncle and his family for weeks at a time in 2000 to 2002; that he was the son's carer for a six month period in 2009; that he visited weekly between 2009 and 2012 and that after 2012 he would visit the son in the care facility once a month as permitted;
the mother does not dispute the size of the father's family, each member's proximity to the son, and the extent to which the family utilised its opportunity to enjoy contact with the son.
For the following reasons, the Guardian Ad Litem disputes the validity of the Public Guardian's assessment of the father's ability to implement his proposal:
in making its assessment, the Public Guardian had no regard to any materials for the period 2004 to 2009;
it is difficult to scrutinize the validity of conclusions of fact by Global staff about the behaviour of the father in the absence of source material and where there is reliance on second hand narratives lacking in detail and/or a contextual setting against which the behaviour is said to have occurred. According to the Guardian Ad Litem, the extent to which source materials from Global support the conclusions about the father's behaviour is limited to one entry on 15/2/11 which states that 'staff feel intimidated…but it is difficult to pinpoint the exact comments or events';
in making its decision, the Public Guardian did not investigate the validity of the conclusions by Global;
in making its decision, the Public Guardian did not consider the evidence of the mother's role in disrupting the provision of care services to the son as contained in running sheet entries by Global staff in 2011. In oral evidence, Mr McDermott conceded that these entries did not support the conclusion that the staff problems with the mother were manageable and able to be resolved;
in making its decision, the Public Guardian should have considered the father's complaints about new staff and the cost of inducting those staff to be a legitimate complaint to temper the conclusions about the behaviour of the father as reported by Global staff to the Public Guardian; and
in relation to the apprehended violence order made in favour of Mrs Cohen, it is the submission of the Guardian Ad Litem that as the apprehended violence order was made by consent without admission, it should not form the basis for a finding of fact.
The Guardian Ad Litem submits that the Tribunal should:
overturn the decision of the Public Guardian of 23 November 2013;
make orders that the son reside in a purpose built house as recommended by the Supreme Court;
recommend that the family return to the Guardianship Tribunal to seek a variation of the order appointing a guardian, namely that the Public Guardian be removed as the guardian for the son;
recommend that the family be paid for the provision of care services to the son to provide accountability for their care to the son; and
make orders for the filing of evidence and written submissions in relation to the costs application by the Guardian Ad Litem in this matter.
[45]
findings and reasons
I have decided to set aside the decision of the Public Guardian that the son be accommodated in the USA under the care of his mother and his stepfather and to substitute a decision that the that the son be accommodated in Australia in a purpose built home to include self-contained quarters for the father, with a separate entrance, and self-contained quarters for the mother, with a separate entrance. Services for the son should be provided by an external care agency and include a care co-ordinator, who is unrelated to the son, to liaise with the mother and the father.
In reaching this decision, I have considered each of the issues agreed by the parties to be relevant to this matter. My findings in relation to each of these issues, which include a consideration of the principles under s4 of the Guardianship Act, are set out below.
[46]
The son's wishes - identification of and depth of the son's wishes; weight that should be given to the son's wishes
On 15 August 2013, the Public Guardian decided that the son should be accommodated in Georgia, USA under the care of his mother.
In making this decision, the Public Guardian found that although there may be limitations in the son's capacity to understand complex information in relation to the long term consequences and the advantages and disadvantages of different courses of action, the Public Guardian was satisfied that his views were generally reliable and should be taken into account in relation to where he wished to reside.
On 14 November 2013, the Public Guardian affirmed this decision on internal review and gave significant weight to the son's preferences to return to the USA with his mother.
At the hearing before the Tribunal, Ms Vass and Dr Browne gave evidence in relation to the son's ability to communicate his wishes.
The Guardian Ad Litem tendered in evidence a DVD of Ms Ramjan's interview with the son on 3 June 2014. Using an eye blinking method and thumb communication, Ms Ramjan asked questions of the son about where he would like to live and with whom.
Dr Browne expressed the opinion that the son's use of thumb signals to communicate was reliable for day-to-day issues provided he was not fatigued. By contrast, it was impossible to know if the son could understand the consequences of his answers or what he understood of the symbols in the communication tool developed by Ms Vass used to elicit his views on his accommodation and living arrangements. Dr Browne couldn't recall using an eye-blinking method to communication with the son and had doubts as to the reliability of that method.
Ms Vass had concerns with the practices used by Ms Ramjan to communicate with the son. This was because Ms Ramjan used non-specific questions asked in a tested rather than a supportive environment. Ms Vass does not use eye-blinking to communicate with the son and doubts the reliability of a method using a part of the body over which the son might not have voluntary control.
In the light of the evidence of Ms Vass and Dr Browne, all parties accept that the son's cognitive functioning is such that he could not appreciate the consequences of his decisions. For this reason, it is agreed that no submission would be made by any party that decision should or could be upheld on the basis of the son's wishes.
On the basis of the evidence of Ms Vass and Dr Browne, I find that it is impossible to know whether the son understands the consequences of answers he gives in relation to his accommodation and his residence. For this reason, I find that any apparent wishes expressed by the son in relation to where he lives and with whom he lives should not be taken into account in this decision.
In light of the evidence of Ms Vass and Dr Browne as to the unreliability of the eye-blinking method, the evidence of Ms Vass as to the testing rather than supportive environment used by Ms Ramjan to interview the son and the evidence of the son's fatigue and the effect this may have on his communication, I am giving no weight to the DVD and transcript of Ms Ramjan's interview with the son on 3 June 2014.
In 1998, the son applied to become a permanent resident of Australia. He was granted citizenship in 2009. I am satisfied that by lodging an application for permanent residence, the son wished to have the option to live in Australia. In doing so, he was not being forced to choose between being a resident of the USA and a resident of Australia: he could be both. Indeed, he is now both a citizen of the USA and a citizen of Australia.
I accept that, whilst in Australia, the son enrolled in a course. This is evidence, I find, that he wished to remain in Australia for the duration of this course. I accept the evidence that between 1998 and 2002, the son developed a relationship with his extended family in Australia and that he regularly socialised with them.
The son was, however, only a teenager when he came to Australia in 1998 and the fact that he returned to the USA in 1999 before then deciding to once more return to Australia is evidence that he was a young man struggling to decide not only where to live but what to do with his life. In reaching this conclusion, I accept the evidence of his mother that she wanted her son to focus on his future studies rather than simply flying back and forth to Australia. I accept the mother's evidence that this is why she was not prepared to fund his return trip to Australia in 2000.
On the evidence before me, I accept that in 2000, Australia offered much to the son: his father, his extended family, manual work to earn money and the chance to study. I accept that as a young man, just out of school, his intention was stay in Australia at least until the completion of the course and that his successful application for permanent residence in Australia meant that he would have the choice to live in either Australia or the USA. By choosing to be a permanent resident of Australia, he was not being forced to discard his citizenship of the USA. For this reason, I don't find that his application for permanent residency is proof that he intended to live in Australia for the rest of his life. I accept however that by enrolling in a course of study, he intended to stay in Australia for at least the duration of that course.
[47]
The financial viability of each parents' proposal, and the extent to which each financial plan accords with the son's best interests including sufficiently providing for the son's quality of life
[48]
The father's proposal
Although the mother noted that the father has no actual plan for the son's house or his future needs, no party has disputed the financial viability of the father's proposal.
I accept the evidence of Mr Pound, Acting Financial Director of the Trustee and Guardian Financial Planning Branch of NSWTAG, that the father's proposal, namely that the son live with him in Australia in either leased or purchased premises, remains financially viable.
In the case of purchased premises, the NSWTAG estimated the annual expenses for the son to be $530 030.00 and the capital expenditure to be $900 000. In the cases of leased premises, the NSWTAG estimated the annual expenses for the son to be $572 630.00 with no capital expenditure. I accept the evidence of Mr Pound that depletion would not be a concern in either case.
[49]
The mother's proposal
In its advice dated 8 May 2013, the NSWTAG assessed the mother's proposal as affordable, subject to the risk factors highlighted. In oral evidence, Mr Pound confirmed that the mother's proposal remains financially viable.
The father and the Guardian Ad Litem dispute the financial viability of the mother's proposal for the following reasons:
if the son were to relocate to the USA and the Australian dollar were to fall to below USD0.70, the son's estate would deplete by the time he was 62 years old;
the uncertainly as to the son's liability for taxation in the USA including federal tax and personal state tax;
the uncertainty as to the son's eligibility for Medicaid and/or Medicare.
On the basis of the evidence provided by Mr Pollan, I accept that:
it is unlikely that the son would be insured for US Medicare and that any entitlement to Medicare would be limited to providing the son with 100 days of rehabilitation;
it is likely that the son will qualify for Medicaid provided he enters into a special needs trust if his gross income exceeds $2163 per month. I accept that a fee is payable for the administration of such a trust;
it is likely that the son would be eligible for private health insurance which, under the Affordable Care Act (US), prohibits health insurance companies from discriminating on the basis of pre-existing conditions. I accept the costs of hospitalisation for the son could be met by private insurance and Medicaid.
On the evidence before me, I have the following concerns:
whether the son will, in fact, be able to be enrolled to obtain private health insurance in the USA; and
the costs associated with the establishment of a Special Needs Trust to enable the son to access Medicaid.
A further uncertainty is the question of the son's tax liability as a US citizen living in the USA. In light of the evidence before me, I accept that as a resident of Georgia, the son would be subject to a tax imposed by the state of Georgia in the amount of 6%. I also accept that as a citizen of the USA, the son has an obligation to pay tax on his worldwide income. On this basis, I find that whilst his liability to pay state tax is contingent upon his residence in Georgia, his federal liability to pay tax is contingent upon his being a US citizen and applies whether he lives in Australia or in the USA.
In making an assessment for damages, the judge presiding over the Supreme Court proceedings allowed for a life expectancy of 54 years for the son. I accept that this figure was simply to allow an assessment to be made and that the son may well live beyond 54 years. It is therefore relevant to assess the financial viability of the mother's proposal in the expectation that the son will live for more than 54 years.
The evidence before me is that over the past twenty years, the AUD/USD exchange rate has traded in a range from $0.50 to $1.09. Mr Pound's evidence is that between July 2014 to January 2015, the Australian dollar fell from USD0.90 to USD0.79. According to Mr Pound, if the Australian dollar fell to USD0.70, the total annual expenses on the basis of the mother's budget would be AUD700 416 per annum with a total capital expenditure of AUD1 623 712. This would mean that the son's assets would deplete when he is aged 62. It would then follow that if the Australian dollar fell further - as it has previously - the son's assets would deplete more quickly.
Giving the large fluctuations that have previously occurred between the Australian dollar and the United States dollar, this is a dangerous risk to take and one that would impact upon the financial viability of the mother's proposal.
In light of the possible fluctuations in the exchange rate between the Australian dollar and the United States dollar, the uncertainty as to the son's eligibility for private insurance and the fees associated with the possible establishment of a special needs trust to enable the son to be eligible for Medicaid, I have concerns as to the financial viability of the mother's proposal. In particular, I am concerned that these factors may lead to a depletion of the son's financial assets prior to his death and thereby leave him without adequate care.
[50]
Whether the Public Guardian has the power to decide that the son be accommodated in a place outside of NSW
On 13 January 2011, the Guardianship Tribunal appointed the Public Guardian as guardian to the son with authority to make decisions for him about his accommodation. In making this decision, the Guardianship Tribunal was aware of the proposal for the son to live in the USA with his mother. In accordance with s21C of the Guardianship Act, as guardian to the son, the Public Guardian has the power to make any decision the son would make if he had the legal capacity to do so. Following the reasoning applied in Quinn v Minister of Young Community Services (1986) 5 NSWLR 716, this would include a decision that the son live outside of NSW.
[51]
How and by whom the son's funds would be managed if he lived in (Georgia) USA including whether that management will accord with the son's best interests and will provide for his quality of life;
Although the chronology agreed by the parties provides that the NSWTAG will remain the son's financial manager whether he is accommodated with the father or the mother, according Ms Bateman's statement, the mother advised her that once in the USA, she wishes to control the son's finances.
In her own oral evidence, the mother agreed that she had been subject to bankruptcy proceedings for failure to make credit card payments. She also agreed that she had sought advice in relation to the possible transfer of the son's money to the USA but stated that she does not want to manage the son's funds.
Any accommodation decision for the son would not disturb the financial management order currently in place for the son which appoints the NSWTAG as his financial manager. It is Mr Pound's evidence that the NSWTAG would continue to manage the son's funds from Australia even if the son resides in the USA. It was the evidence of Mr Pound that the NSWTAG manages the finances of other overseas residents who are subject to a financial management order.
A separate application would have to be made in order to review the decision to appoint a financial manager to the son. Any application by the mother to be appointed a conservator to her son would require the approval of the relevant court in Georgia.
On the evidence before me, I find that as a person subject to financial management order who is under the financial management of the NSWTAG, the son's finances would continue to be managed by the NSWTAG even if he were to be accommodated outside Australia.
I accept the mother's evidence that she does not wish to manage her son's finances.
[52]
The nature, quality and extent of the son's family relationships in Georgia and in the greater USA and Canada, including what support and companionship those family relationships might offer
Evidence of the son's family relationships in the USA was given by the mother, the stepfather and the brother. A statement of family support was provided by the stepfather's sister.
The mother gave detailed evidence in these proceedings. I found her evidence to be considered and detailed and truthful.
I accept that the mother was the primary carer of her son from his birth until he reached the age of eighteen years. I accept that from 1987, she was a single mother to her son. Since her son's accident, the mother has made regular trips to Australia to care for him. This has been both expensive and distressing, particularly in terms of having adequate accommodation. While the son was living in rental premises with the father, the mother was accommodated there. The evidence is that whilst this was convenient, it was difficult to share premises with the father. This was particularly the case when the stepfather accompanied the mother to Australia in 2011 but was denied access to the house by the father.
Through her daily Skype contact with her son, her regular contact with caregivers and her lengthy stays in Australia, the mother has demonstrated her continued devotion to her son despite the distance and despite a difficult relationship with the father and his partner.
There has been no dispute that the mother enjoys a close and loving relationship with her son and that he benefits greatly from his relationship with her. On the evidence before me, I am satisfied that this is a relationship of great value and importance to the son.
The stepfather has known the son since 1997 or 1998. For a year in 1999, the son and the stepfather lived together with the mother. I accept that during this time, the stepfather taught the son to drive a manual car and helped him find his first job. I also accept that the stepfather has travelled to Australia on four occasions to see the son.
I accept the evidence before me that following the amputation of his lower leg in 2012, the stepfather was fitted with a prosthetic leg that has enabled him to remain active and to continue to drive a car and perform household chores. I am satisfied that the amputation of his lower leg would not impede him from assisting the son with his daily requirements and taking him on excursions. Where lifting the son is required, carers would be available to do this.
There has been a suggestion that the son has a poor relationship with the stepfather. The evidence of this is as follows:
the father's statement that the stepfather and mother had refused to fund the son's ticket to return to Australia in 2000;
the cousin's recollection of conversations with the son about his dislike of his stepfather and his view that these problems were partly because the stepfather is Jewish and the son identified as a Muslim;
the stepfather's evidence that he and the son had argued about the son not making enough effort to find a job;
the fact that the son moved out of home and in with friends prior to returning to Australia in 2000;
confirmation by the son to Ms Ramjan that there had been a fight between the son and the stepfather prior to the son's return to Australia; and
the stepfather's lack of knowledge of the son including his birth date and his favourite sports and TV shows.
In light of the manner in which the questions were put to the son, namely in a tested rather than a supportive environment and without regard to the effect of mood and fatigue on his responses, I am giving no weight to the son's interview with Ms Ramjan.
I give little weight to the stepfather's inability to answer certain questions about the son. What I draw from this is that whilst the stepfather has regular contact with the son, the contact is secondary to the son's contact with the mother and that the stepfather continues to facilitate (and often fund) that contact.
I accept the evidence of the mother that she and the stepfather had not funded the plane ticket for the son's return to Australia because they wished him to focus on his future study and work. On the evidence, namely that the son had recently finished school, had travelled to Australia then returned to the USA before quickly wishing to travel back to Australia, I find that this was an understandable response by a mother and stepfather who wanted the son to make a decision about his future. I do not accept it as evidence of a poor relationship between the stepfather and the son.
Similarly, there is no evidence that the son moved out of the family home to live with friends because of a poor relationship with his stepfather. On this point, I accept the evidence of the mother that he moved out to live with friends but would return to the family home to do his washing. This, I find, is indicative of the son's ongoing relationship with his mother and stepfather during this time.
There is no reliable contemporaneous evidence before me to support the submission that prior to his accident, the son identified as a Muslim and that this caused a poor relationship with his stepfather who is Jewish. For this reason, I give little weight to that submission.
On the evidence before me, I do not accept that the son has a poor relationship with his stepfather. Rather, the evidence is that the stepfather is in regular contact with the son by Skype, has travelled to Australia to visit him on four occasions and financially and emotionally supports the mother's relationship with her son.
It is the mother's submission that should the son return to live in the USA, the brother would play a large part in the brother's life and would hopefully care for the son should the mother and stepfather predecease him. For the following reasons, I am not satisfied that this is likely:
the brother has no existing relationship with the son;
the brother had limited exposure to the son as a child and no contact with him from 1994 to 2002;
the brother visited the son in 2006 and 2008 but has had no other contact with him since then; and
the brother and his family live in Canada and do not visit the mother in Georgia.
The other members of the son's extended family in the USA are his grandmother, his two aunts and their families. I accept that the family has much goodwill towards the son but in light of the age of the grandmother, the fact that the family live at least four hours away from Georgia and have not visited the son in Australia since his accident, I am not satisfied that they would be able to regularly and substantially support the son were he to be accommodated in Georgia.
I accept the evidence of the mother and the stepfather that the stepfather's family are close-knit, live in Georgia and would support the mother and stepfather in their care of the son. There is, however, no evidence before me that the son himself enjoys a close relationship with the stepfather's family.
[53]
The nature, quality and extent of the son's family relationships in Australia, including what support and companionship those family relationships might offer
The son has the following family members in Australia: his father and his extended family including the cousin and the uncle.
The father lived with the son in rental premises between 2003 and 2011. There is no dispute between the parties that the father provided excellent care to the son from 2003 until 2011, when the Public Guardian became the son's guardian. There is no dispute that when the father established his own care service in 2009, the son received excellent care. In oral evidence and in his statement, the father revealed his thorough knowledge of his son's requirements and interests. There is no dispute that he continues to be a strong presence in his son's life.
On the evidence before me, I accept that the father has experienced the following health issues:
he attempted to commit suicide on two or possibly three occasions between 2009 and 2013;
he has been diagnosed with post-traumatic stress disorder;
he has attempted to self-harm on several occasions;
his consumption of alcohol has been high;
he currently takes antidepressants and mood stabiliser medication.
On the evidence before me, I accept that the father has had some fragility in terms of his mental health. I am satisfied that he has been taking steps to address his alcohol consumption and has sought medical advice in relation to his mental health. Despite his fragility, I find that he has a strong and committed relationship with his son who has previously thrived under his care. He appears younger than his 68 years and apart from a reference to an early back injury, there is no evidence before me to suggest he has problems with his physical health.
I accept that between 2000 and 2002, the son worked daily with one of his cousins and socialised with his family on weekends.
I accept that:
prior to his accident, the son would stay at the home of the uncle;
after his accident, the uncle was a carer for the son for a six month period in 2009;
between 2009 and 2012, the uncle visited the son once a week;
after 2012, the uncle visited the son in his care facility once a month.
I accept that the father has a large extended family who live close together and who, both before and after the son's accident, have provided support and companionship to him. On the evidence before me, I am satisfied that the father and his extended family, in particular the cousin and the uncle, will continue to provide ongoing support and companionship to the son.
[54]
The extent to which each parent has in the past and in recent times been able to liaise, in an appropriate manner, with nursing and other staff who care for the son.
[55]
What impact, if any, has each parent's behaviour with support staff had on past and current care arrangements?
[56]
What impact, if any, is each parent's behaviour anticipated to have on the care arrangements proposed, and is any risk to the son's future care arrangements acceptable?
Since the son's accident, both the mother and the father have liaised with staff who care for their son. On the evidence before me, I accept that both parents are committed to the care and well-being of their son. They have each recognised the excellence of the other's care to their son.
I accept that although the father's manner could be seen as rude and difficult to staff of the Lighthouse Group who cared for the son between 2006 and 2008, the evidence before me is that all issues were able to be resolved in a satisfactory manner.
In relation to the care provided to the son by Global between 2003 and 2008 when Global was caring for the son, I accept, in light of the written evidence of carers in the tender bundle that, on occasions, the father was rude and aggressive to staff, such that one staff member refused to work with the son and another complained of bullying behaviour.
In oral evidence, Mr McDermott thought that a care plan had been produced for the son but couldn't provide details of it. The fact that such a care plan was later compiled by Access Brain Injury Services in September 2011 supports the evidence of the father that Global had no such plan, hence the requirement for one.
In light of Mr McDermott's failure to recall substantial aspects of the care provided to the son by Global, I am not satisfied that he has an adequate recall of the substance of the meeting held in 2008 with the father, the cousin and the father's solicitor. For this reason, I prefer the evidence of the father that when he listed his problems with the care provided by Global, Mr McDermott replied by saying it was all too hard and foreshadowed his intention to terminate the services, which he did by letter on 6 February 2008.
This understanding of what took place at the meeting makes sense of Mr McDermott's subsequent willingness to provide further care for the son in 2009. If the father's behaviour had made the provision of services impossible the year before, it is difficult to understand why Mr McDermott would be prepared to resume services a year later.
There is no evidence of any disputes between staff and either the mother or the father during 2008 and 2009 when Drake provided care for the son.
There is no dispute that during the period of operation of the father's care services, namely from 2009 to 13 January 2011, that the care provided to the son was of a high quality. I am satisfied that, in all, there were no disputes between staff and either the mother and the father during this time. I accept that the father may have been seen as being hyper-vigilant of staff at times, however I am satisfied that during this time, the relationship between the staff and the mother and father was satisfactory.
There is no dispute between the parties that there was a deterioration in both the mother and father's relationship with staff between February 2011 and January 2012 when the Public Guardian appointed Global to once again care for the son. There is evidence of both parents having difficulties with Global carers.
On the basis of the Global running sheets, I accept that the mother had a series of disagreements with staff between 22 May 2011 and 16 November 2011 and that six staff members resigned due to the management behaviours of the mother.
On the evidence before me, I accept that the father's aggressive and intimidator behaviour towards staff resulted in an access order being made by the Public Guardian limiting the father's time with the son and the father's partner's time with the son. I accept on the evidence that the father's aggressive behaviour often arose after he had been drinking.
On the evidence before me, I accept that an access order was also made by the Public Guardian limiting the father's partner's time with the son and preventing her from having any contact with care staff.
There is no evidence of any access order being made to limit the mother's time with her son.
Whilst his evidence was inadequate in many respects, I accept Mr McDermott's statement that the mother was less aggressive in her behaviour towards care staff.
There are two questions that follow:
is there an explanation for the father's behaviour?
is there an explanation for the mother's behaviour?
In the absence of materials for the period 2004 to 2009, the Tribunal is forced to consider the father's behaviour on the basis of second hand narratives rather than source materials. It is the view of the Guardian Ad Litem that the source materials for Global in the period between 2011 and 2012 do not support the views of Mr McDermott that the mother's behaviour was manageable while the father's was not.
I accept that Global initially provided care for the son from his release from hospital in 2004 until February 2008, when the services were terminated by Mr McDermott.
Contained in the tender bundle is a statement dated 23 January 2007 by a Global carer complaining about the father's rude and aggressive behaviour towards him. A statement dated 10 January 2008 by the Global general manager, Ms Jones, describes an altercation with the father in relation to staff availability. In a letter dated 20 February 2009, Mr McDermott agrees to resume services for the son.
On the evidence before me, I find that the circumstances leading to the termination of Global services for the son involved a combination of difficulties in finding adequate staff for the son and in dealing with the father's outbursts. As set out above, this makes sense of Mr McDermott's comment 'It's all too hard.'
There were complaints from Global about the parents' over-involvement in their son's care which has made it difficult for the carers to perform their work. There are several explanations for this over- involvement:
the parents' concern about the adequacy of the care provided to their son;
the parents' frustration at their exclusion from their son's care;
the parents' frustration that their own expertise in caring for their son was being overlooked and unappreciated; and
the apparent lack of a care plan for the son to ensure his interest and stimulation.
On the evidence before me, the father's behaviour towards Global carers was unacceptable and indicative of a man who finds it difficult to control his temper. This does not mean that his complaints about his son's care were unfounded. Indeed, the fact that the mother shared his complaints is evidence of their validity. It is common ground between the mother and father, who have an otherwise difficult relationship, that inadequate care was provided to the son by Global carers. This included carers who did not have appropriate qualifications and who wore clothes that did not conform to safety standards.
By contrast, the mother agrees that much better programs were in place for the son when under the father's own care service and that the father's care service had provided excellent services for the son.
It is significant that when Drake provided care for the son from April 2008 to August 2009, there is no evidence before the Tribunal of conflict between the carers and the parents. The Public Guardian concedes that 'for the relatively short period of its involvement with [the son's] care, Drake provided a service without the sort of problems encountered by Global.'
Indeed, in his evidence Mr Polimonakis from Drake referred to case notes stating that the father had worked alongside and collaborated with staff. I was impressed by Mr Polimonakis' evidence during which he advised the Tribunal that Drake would be happy to provide further services for the son and that a worker previously known to the son could be appointed as clinical co-ordinator or case manager to act as a liaison between the various parties. He would require four to five weeks to recruit a team specifically chosen for the son. A care manual could be compiled and Mr Polimonakis advised that he would be would be able to work both with the Public Guardian and the NSWTAG.
The evidence before me is that the father has a propensity to become aggressive when frustrated by what he perceives to be inadequate care for his son and when he feels excluded from his son's care management.
When, however, he is satisfied with the care provided to his son, he is able to be of assistance to his son and to work collaboratively with staff. I accept the evidence that some staff have described him as 'breathing down their neck' but I am satisfied that where care services are provided to the son in a well-organised and well-prepared manner with an appropriate liaison officer to deal with any complaints, the father's tendency to become over-involved in his son's care can be appropriately managed.
Employing the father as a carer to the son would be an appropriate way to:
harness the father's expertise in caring for his son;
ensure that he has regular, continuing and meaningful contact with his son;
appropriately manage his involvement in his son's care;
ensure he feels part of his son's care regime; and
ensure that he also has respite time away from the care of his son.
According to evidence by the father, there are limitations as to the care he could provide to his son in light of an earlier back injury. The nature of these limitations and how they might be allowed for would be something to be determined by the care provider.
In light of the mother's concession that the son's care was excellent both under Drake and under the father's own care company, I am satisfied that with the return of a company like Drake to care for the son with an appropriate care co-ordinator who is aligned neither to the mother or the father but is instead able to deal with each of them impartially, the father would not jeopardise the quality of his son's care.
I have fewer concerns about the mother's behaviour towards carers. In the course of these proceedings, the mother was able to acquit herself with great poise and great dignity in very difficult circumstances. In representing herself, she managed to articulate her position clearly and logically. She managed to answer questions with consideration and, I find, with honesty. Despite the acrimonious relationship that exists between her and the father, she was thoughtful in her praise of the father's devotion to their son. I was impressed by the mother as a witness.
Having heard her in the proceedings and having observed her management of such a difficult and emotionally draining case, I am satisfied that she would be able to communicate with a case co-ordinator appointed to her son and that she would be able to communicate any complaints in a reasonable and non-aggressive manner.
She spoke of her perception of being excluded from her son's care. To remedy this, the mother should be included in the roster for her son's care to enable her to care for him on a regular and continuing basis and to take advantage of the expertise and experience she has with his care.
The mother does not believe that family members should be paid for caring for the son. I don't agree with this. Paying family members as carers for the son brings them under the umbrella of an organisation, enables them to be part of a clear roster and to be subject to direction and gives them an avenue to provide suggestions for improvements to the son's care. As paid carers, the father, the mother and the uncle would provide experience and expertise in the care. Being part of a roster would also enable them to take time out as respite before a subsequent shift.
In considering the parents' behaviour, consideration has to be given not only to their relationship with carers but also to their relationship with each other and with each other's partners.
It is clear that the enormity of their son's injuries has deeply affected both the mother and father, both of whom have suffered Post-Traumatic Stress Disorder in the aftermath of the son's accident. Two people who had been separated for many years have been forced together again solely as a result of their son's condition. Not only have they been forced to communicate together, they have also been forced to share accommodation, to prepare earlier court proceedings together and to work together in caring for their son.
a structured roster for the son to include regular care by and visits from each of his parents, at separate times;
housing that provides appropriate accommodation for the son with attached self-contained accommodations for each of the parents, preferably on either side of the son's area, and designed in such a way that neither the mother or the father can see into each other's accommodation. The self-contained accommodation should include a separate entrance, a kitchen area, sleeping area, bathroom, laundry and lounge room. Each area should be large enough to accommodate two people and to enable access for the son to each self-contained area;
the appointment of an external care provider such as Drake;
the appointment of an outside case co-ordinator (who is not a family member) with input from the father and mother to ensure the co-ordinator chosen is one that father and mother can relate to;
the creation of an updated care manual, a draft of which to be shown to the mother and father and their suggestions considered;
payment for care provided to the son by the mother and father to ensure they each have a defined role in their son's care. Where, due to visa restrictions, the mother may be unable to accept payment, consideration could be given to providing financial assistance for her trips to Australia;
consideration being given to a reactivation of the mother's application to become a permanent resident of Australia.
[57]
Whether the son is fit to travel to the USA.
The evidence of Dr Hosking is that an assessment as to whether the son would be fit to travel to the USA would be made immediately prior to repatriation. No evidence is therefore available to enable me to make a finding in relation to this issue.
[58]
The extent to which each parent's accommodation proposal is in the best interests of the son, with specific reference to each criterion set out in section 4 of the Guardianship Act 1997.
[59]
Application of principles
As set out above, I am required to observe the principles in s 4 of the Guardianship Act 1987 when making my decision, because I am exercising functions under that Act.
[60]
The views of persons who have disabilities should be taken into consideration (s 4(d))
In the light of the evidence of Ms Vass and Dr Browne and the concession by the Public Guardian that the son's cognitive functioning is such that he could not appreciate the consequences of his decisions, I am unable to take into account any views of the son as to where he should be accommodated.
[61]
(a) the welfare and interests of such persons should be given paramount consideration
I find that the welfare and interests of the son are best served by the son residing in a purpose built home in Australia with carers from an external care organisation such as Drake. The purpose built home should include quarters for the son, self-contained accommodation - including a separate entrance - for the father and self-contained accommodation - including a separate entrance - for the mother.
On the evidence before me, I find that the son's welfare and interests are best served by residing in Australia for several reasons:
The need for financial security
To ensure a high standard of care, the son needs to have sufficient financial resources to last him for the rest of his life. In calculating damages, the judge in the Supreme Court proceedings allowed for a life expectancy of 54 years for the son. In making this finding he noted at paragraph 466 of the judgment:
A deal of evidence was given as to [the son's] life expectancy, a matter about which there was substantial conflict. Although I will need to express a view, obviously it can be little more than speculation about an event unlikely to occur, on any view of the evidence, for at least 20 years and in an era where the state of medical knowledge may be vastly superior to that which pertains today.
Evidence was given to the Supreme Court that the son, who was 27 years old at the time of his accident, might survive over 50 years or may 'succumb at age 45.' Having considered all the evidence before him, the judge made calculations on the basis that the son would live for a further 27 years.
It is therefore clear that a life expectancy of 54 years is simply an assumption used to calculate damages. It remains possible that the son will live longer than this and will require the ongoing financial ability to meet his care expenses.
Were the son to move to the USA, his care expenses would be paid in US dollars. It is not disputed that over the past 20 years, the exchange rate between the US dollar and the Australian dollar has fluctuated between $0.50 and $1.09. Whilst this would not affect the viability of the father's proposal that the son be cared for at home in Australia, it would affect the mother's proposal.
I accept the evidence of Mr Pound that if the Australian dollar were to fall to USD0.70, the annual budget for the mother's proposal would be AUD700 416 with a total capital expenditure of AUD1 623 712.00 which would deplete the son's assets by the age of 62. A further fall of the Australian dollar will lead to an earlier depletion of the son's financial assets.
Should the son move to the USA, the possibility that his assets will deplete is therefore a real one. Such a risk to the son's financial security would not be in his welfare or interests.
The company of his father and extended family
I accept that the son and his father share a strong bond and that the father has been instrumental in the son's early progress following his accident. I also accept that the father's extended family has been involved in the son's post-accident care and that these family connections are beneficial to the son's welfare.
Whilst the father has previously behaved inappropriately towards Global carers, I am satisfied that the father would be able to collaborate with a better organised and better structured external care organisation, as he has previously done with Drake and with his own care service. Under these circumstances and with the assistance of an appropriate case co-ordinator, the proposal for the son to have in-home care in Australia is sustainable.
[62]
(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible
Although the son is unable to appreciate the consequences of decisions he makes, I accept that he is able to communicate his wishes in relation to day to day matters. Having heard from both the mother and the father, I am satisfied that they each have a strong bond with their son and that he is able to communicate his day-to-day needs to each of them, and that each of his parents are able to respond to him appropriately.
[63]
(c) such persons should be encouraged, as far as possible, to live a normal life in the community,
Both the father and the mother seek to enable the son to live in a home environment in the community and to benefit from community and social activities.
[64]
(d) the views of such persons in relation to the exercise of those functions should be taken into consideration
For the reasons provided above, I accept the evidence of Ms Vass and Dr Browne that the son is unable to understand the consequences of his decisions. For this reason, I find that the son is unable to provide a view as to where he should be accommodated.
While I accept that the son applied for permanent residence in Australia prior to his accident, I am not satisfied that this proves that he had decided to remain in Australia permanently. As he was not required to relinquish his right to reside in the USA, his grant of permanent residency in Australia simply provided him with a second option of residence. There is evidence that he wished to complete a course in Australia, but I am not satisfied he intended to live in Australia for the rest of his life.
[65]
(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised
Although the son has a non-Anglo cultural background, I am not satisfied that this cultural heritage requires preservation to the detriment of his American background.
[66]
(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,
Given the extent of his injuries and medical condition, the son is unable to be self-reliant in any of these respects.
[67]
(g) such persons should be protected from neglect, abuse and exploitation,
Both the mother and father are committed to their son's well-being and to his protection from neglect, abuse and exploitation.
[68]
(h) the community should be encouraged to apply and promote these principles.
Given that this is an accommodation decision only, this is not a relevant consideration in the present case.
[69]
CONCLUSION
This has been a very difficult and complex matter. In reaching my decision to set aside the decision of the Public Guardian that the son be accommodated in the USA under the care of his mother and his stepfather, I have considered all relevant issues as agreed by the parties, including those principles set out in s4 of the Guardianship Act. In doing so, I have given paramount consideration to the welfare and interests of the son, who was so tragically injured in 2002.
As I have set out above, I am satisfied that the welfare and interests of the son require him to have the financial stability to enable him to receive high quality care for the rest of his life and to have regular and ongoing contact with his parents as well as with members of his extended family.
None of the parties have submitted that it would be the correct and preferable decision for the son to remain in his current care facility. On the evidence before me, I find that the son's condition has deteriorated since he has been accommodated in the care facility and he has more limited access to programs designed to stimulate him. On this basis, I have decided that it would not be appropriate for the son to remain in his current care facility.
In considering the evidence before me, I find that the correct and preferable decision is that the son be accommodated in Australia in a purpose built home to include self-contained quarters for the father, with their own separate entrance, and self-contained quarters for the mother, with their own separate entrance. Services for the son should be provided by an external care agency and include a care co-ordinator, who is not related to the son, to liaise with the mother and the father.
In reaching this decision, I am satisfied that with the appointment of an external care organisation with appropriately qualified carers employed specifically to care for the son, the creation of an updated care manual and the appointment on an case co-ordinator who is able to liaise with both the mother and the father, the father will be able to collaborate with the son's carers.
I am satisfied that the son benefits from his relationship from his father and also from regular contact with his extended family on his father's side. I am similarly satisfied that the son benefits enormously from his relationship with his mother who, despite the distance between them, has managed to maintain a close relationship with him through regular visits and Skype.
To enable the mother to retain a close relationship with her son, her well-being in Australia needs to be considered. The relationship between the mother and the father is a poor one and to avoid its further deterioration, steps should be taken to ensure they can each maintain proximity to their son but distance from one another. The design of a purpose built home for the son is critical to this. The Supreme Court proceedings refer to suggestions by Mr Hardiman, architect, for such a house. To manage the relationship between the father and the mother and allow for their need to be close to their son, I would add the following suggestions to be included in the design of such a house:
attached self-contained accommodation for the mother, with a separate entrance; and
attached self-contained accommodation for the father, with a separate entrance.
The mother has lost trust in the father and his family and is particularly suspicious of the family's motives in controlling a care company managed by the father. She also feels that the re-establishment of such a company would lead to her being further alienated from her son, particularly as her relationship with the father's partner and with the cousin is now poor. Her sense of alienation is further increased by her need to leave her home and support networks each time she flies to Australia to visit her son. The relationship between the mother and father will not be able to be restored while the mother feels both alienated and suspicious of the father's motives. Because the son's welfare depends on a continued relationship with both his father and his mother, it is imperative that the relationship between the mother and father not deteriorate further. It is for this reason that services for the son should not be provided by a care service managed by the father or his family. Instead, an independent external care service should be used to provide services for the son.
Both the mother and the father like to be involved in the son's care. They each have expertise in his care, enjoy being with the son and feel frustrated when they are not allowed to care for him. The son would benefit by the regular contact if his mother and father were placed on the care roster, at separate times; the care agency would benefit by the certainty of knowing when the parents would be involved with their son and the roster could be drafted to avoid contact between the mother and the father. To enable this to work properly, the father and the mother should be paid for their care. If the mother were unable to be paid due to work restrictions, consideration might be given to instead assist with her travel and living expenses, as appropriate. This would assist her financially and enable her to feel appreciated.
The mother was forced to withdraw her application for permanent residence when the son was place into care. This was another unfortunate consequence of the decision to place the son into care, apparently without first informing the mother. On the evidence before me, I understand that once the son is living in a house that can also accommodate the mother, she will be in a position to re-submit her application for permanent residence.
[70]
recommendations
I have had the opportunity to hear from witnesses and from the parties at length. The son's care will be ongoing and require ongoing decisions. Whilst my decision is one of accommodation generally, I have also formulated recommendations that, in light of the wealth of evidence before me, might assist in the ongoing care of the son and the management of any further conflict within the family:
The son requires self-contained accommodation from which each of his parents can be included and excluded as required.
Each of the parents needs to have separate self-contained accommodation at close proximity to the son. The accommodation needs to be designed so that the mother and father need never have contact with each other unless this is what they both wish. The accommodation for the parents needs to be large enough to accommodate the father's partner and the stepfather.
The mother and the father are both retired. They are both experts in the care of their son. This expertise should be used to the son's advantage. The manager of the external carer organisation should liaise with each of the parents to determine the extent of the care they can each provide to the son and they should be included in the care roster accordingly. The father's partner also has expertise in caring for the son and thought could be given to the appropriateness of rostering the husband and his partner on together. Similar thought could be given to including the stepfather on a roster during his visits to Australia.
Allowances should be made for the inconvenience and difficulties occasioned to the mother in having to travel from the USA to Australia, pending any grant of a permanent or more long-term stay visa.
The accommodation set aside for the mother during her visits to Australia should be designated as such, to make it clear that she has a place to stay in Australia for the duration of her son's life.
The father should be renumerated for any rostered work to care for his son.
Should the mother's visa - whether for permanent or temporary stay - provide her with working rights, the mother should also be renumerated for any rostered work to care for her son. Should the mother's visa not provide her with working rights, consideration should be given to providing her with assistance for her travel and living costs, as appropriate and in accordance with her visa requirements.
[71]
ORDERS
The decision of the Public Guardian that the son be accommodated in the USA under the care of his mother and his stepfather is set aside.
In substitution for this decision, the Tribunal orders that the son be accommodated in Australia in a purpose built home to include self-contained quarters for the father, with a separate entrance, and self-contained quarters for the mother, with a separate entrance. The Tribunal further orders that services for the son be provided by an external care agency and include a care co-ordinator, who is unrelated to the son, to liaise with the mother and the father.
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: 17 July 2015
He confirmed that he had met with the head of Global to discuss his son's care. He agreed that the statement by Mr Mallos was an accurate description of the meeting.
The father told the Tribunal that when the mother visited in 2009, things became stressful. This was because the mother wished to
do everything differently [which was] confusing for everyone.. because you can't have two bosses.
He agreed that there was a role for the mother in the son's care and that they needed to 'sit down and talk about the issues rationally.' He told the Tribunal that even though it is hard to put people together in a tragedy, good thinking should prevail and that they both need to put their issues aside and work together.
He told the Tribunal that his problems with the mother coincided with the appointment of the Public Guardian as the son's guardian. He had suggested that the uncle be appointed as guardian to the son but the mother had not agreed to this. It is the father's view that the mother doesn't want any of his family involved in the son's care.
He described the care facility as a disturbing place, where 'life stagnates and my son is being warehoused away.'
He told the Tribunal that he would accept the outcome of these proceedings and if given the opportunity, he would do things differently now. He wouldn't micro-manage his son's care, he would take a regular breaks and he would work to help his son maintain his current capacity.
He spoke highly of Drake as a care provider, describing it as an 'immaculate company with great staff.' In contrast to Global, which he found to be chaotic, disorganised and expensive, he found Drake, as an organisation, to be particular and professional with an immaculate roster. When his own care service was providing care for the son, he felt that he had some control of the situation, that he knew what was going on and that it was working well financially. The father told the Tribunal that he and the mother had co-operated well when Drake was in charge of the son's care but that the mother became suspicious when the father started his own care service for the son. It is his view that together, he and the mother could manage their son's care much better.
He agreed that an apprehended violence order had been made against him in 2011 for the protection of the mother, but denied assaulting his niece while she worked as a carer for the son.
He told the Tribunal that were the son to be accommodated with him, he would provide similar accommodation for the mother to the accommodation she had allowed for him in her own proposal, that is, a separate entrance to the house, a private bathroom and a small kitchen. He agreed that the plans drawn up for earlier accommodation proposed for the son in Sydney provided only a bedroom for the mother with a bathroom for her use that doubled as a laundry and that no allowance had been made for a separate entrance for her.
The Public Guardian opposes any order for costs in this matter.
The father notes the mother's evidence that the services provided by his own care service were of a high quality and her recommendation that four of the workers from his care service be employed by Global when Global resumed its care of the son in 2011.
The father further notes that the material from Global contained in the tender bundle makes reference to difficulties both between Global staff and him, and between Global staff and the mother. This material discloses that in July 2011, six workers from Global informed management that they were resigning because of difficulties with the mother. Mr McDermott was unaware of this material. Furthermore, there is an absence of primary material before the Tribunal as to the details of the complaints and how they were considered.
It is the father's submission that the complaints to Global focused on the lack of professionalism of the company including problems with the care provided by staff and the lack of a care plan. Although Mr McDermott claimed that such a care plan existed, no such plan was produced by Global. According to the father, the fact that a care plan was subsequently produced by Access Brain Injury Services in late 2011 supports the submission that Global did not already have such a care plan in place for the son.
It is the father's submission that the intention to have the cousin as an intermediary between the father and the carers would give the Tribunal confidence in the father's proposal.
To their credit, the evidence is that for many years, they managed to collaborate together. The father was the son's guardian, with the mother in the alternative. Each of them has spoken of the other's devotion to their son and expertise and commitment to his care. For the earlier years, the evidence is that there was a trust and co-operation between the two.
Sometime later, this trust and co-operation evaporated. On the evidence before me, a rupture occurred in around 2009. By 2009, the son's financial settlement had been finalised, the father had started his own care service and he had a new partner who he had met when she was employed as a carer for the son. From this point, the relationship between the mother and father disintegrated, culminating in an apprehended violence order being made against the father for the protection of the mother.
On the evidence, the mother was suspicious of the father's financial handling of his care service and she expressed her concerns that he had not made financial decisions in the son's best interests. She felt excluded from the father's care service and suspicious of the motives of the father's family members who were employed by the service.
She also described a difficult relationship with the father's partner who, she said, made her feel very unwelcome when she came to Australia. It made sharing the rental premises very stressful. Her treatment at the hands of the father's partner made the mother feel excluded from her son and from his care. The father's abusive treatment of the stepfather and his refusal to allow the stepfather to share the rental premises when he accompanied the mother to Australia explains the stepfather's hasty departure to Australia.
The behaviour of the father and his partner towards the mother is both disappointing and inappropriate. The mother has undertaken many trips to Australia to visit the son and to be made to feel unwelcome and subject to abuse is unacceptable. It is clear that the mother and the father should have nothing to do with each other. It is also clear that the son benefits from regular contact with each of his parents. How can this be managed?
To enable the son to have continuing, regular contact with each of his parents while ensuring that the parents do not need to have contact with each other the following is important: