BTK v The Public Guardian

Statutory framework

1. The Tribunal may make a guardianship order for a person under s 14(1) of the Guardianship Act 1987 (NSW) (the Guardianship Act) if it is satisfied that the person is a "person in need of a guardian". Section 3 defines a "person in need of a guardian" as a "person who, because of a disability, is totally or partially incapable of managing his or her person."
2. The power to make an order is discretionary but in considering whether or not an order should be made, the Tribunal must have regard to the matters set out in s 14(2) which provides as follows: (2) In considering whether or not to make a guar dianship order in respect of a person, the Tr ibunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spo use, if any, if the relationship between the person and the spo use is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
3. The Tribunal must also have regard to the principles set out in section 4 of the Guardianship Act. At the forefront of those principles is the duty of the Tribunal to give paramount consideration to the welfare and interests of persons with disabilities.
4. The Tribunal may also make a financial management order committing the estate of a person to another for financial management but only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied: 1. that the person is not capable of managing those affairs, and 2. there is a need for another to manage those affairs on the person's behalf, and 3. it is in the person's best interests that the order be made. 4. (refer s 25G of the Guardianship Act)
5. Section 80 (1) of the Civil And Administrative Tribunal Act 2013 (NSW) (the CAT Act) provides that a party may make an internal appeal to the Appeal Panel in respect of decisions made by the Tribunal in proceedings for a "general decision." The decision made by the Guardianship Division was made pursuant to functions allocated to the Division under the legislation referred to in Schedule 6 of the CAT Act and, as such, was a general decision within the meaning of s 29 of the CAT Act. An internal appeal may be made as of right in respect of a final or ancillary decision on any question of law but with the leave of the Appeal Panel on any other grounds (s 80(2)(b).
6. There is no contest that the Appeal Panel has jurisdiction to determine this internal appeal. The key issues are whether an error of law was made by the Tribunal below in dismissing the appellant's applications and, if there was no error of law, whether the Tribunal should give leave to appeal on the merits.

The Tribunal decision at first instance

1. The Tribunal provided a written statement of its reasons setting out a number of issues in relation to the conduct of the hearing, the evidence given by the parties and the Tribunal's reasons for dismissing the appellant's applications.
2. The appellant and respondents attended the hearing in person. However, because there was an interim apprehended domestic violence order in place, the Tribunal did not allow the appellant to participate in person and required him to participate by telephone from a nearby conference room in the Tribunal premises. This was explained in the Tribunal's reasons as follows: [Mrs BTL] and her family, other than [Mr BTK], attended the hearing in Hearing Room 2 at the hearing rooms of NCAT at Balmain. As there was an interim AVO in place, [Mr BTK] was prohibited from being in the hearing room with his family. [Mr BTK] and [Mr LDM] therefore participated by telephone from a conference room in the waiting area of the Balmain premises.
3. The Tribunal identified the issues it needed to determine in relation to the guardianship application. Relevantly, the Tribunal identified the threshold issue as being as being "whether Mrs BTL was someone for whom it could make an order because she has a disability which prevents her from being able to make important life decisions" [emphasis added]. The Tribunal further identified the issue of whether the Tribunal "should make a guardianship order and if so, what order should be made" [emphasis added].
4. In respect of the threshold issue, the Tribunal noted it was provided with two health professional reports from Mrs BTL's general practitioner dated 9 July 2014 and 15 August 2014. It was noted that the first report stated that Mrs BTL had "mild dementia" but her dementia had "not been formally assessed or diagnosed." It was further noted that the second report "did not identify any disabilities." It is apparent from the reasons that the general practitioner did not give evidence at the hearing.
5. The Tribunal dealt with the threshold issue of disability as follows: Having decided the application should be dismissed on the basis that [Mrs BTL] is not a person for whom the Tribunal should make a guardianship order, there was no need to address the other questions set out above. [emphasis added]
6. The Tribunal then went on to determine the question of whether a guardianship order should be made. In the reasons for decision it is noted as follows: [Mrs BTL] gave evidence through an interpreter. It appeared to the Tribunal that at times [Mrs BTL] had difficulty understanding the questions put to her and her answers were at times incoherent. [Mrs BTL] was asked if she wanted to see [Mr BTK], to which her response was a very emphatic "no."
7. The Tribunal further noted as follows: With the above background, the Tribunal considered whether, if [Mrs BTL] was a person in need of a guardian, whether the Tribunal would make a guardianship order under section 14 of the Act. In considering this issue, the Tribunal had regard to the matters set out in section 14(2) of the Act. The evidence was clear that of all the family, only [Mr BTK] was of the view that a guardianship order should be made. The evidence was also clear that a guardianship order would only result in upsetting the relationship of [Mrs BTL] with [Mrs BTN] and [Mr BTM]. It would have no effect on [Mrs BTL]'s relationship with [Mr BTK], as that relationship is already at a dysfunctional level. In regard to section 14(2)(d), the Tribunal noted that [Mrs BTL] had on 9 February 2012 appointed [Mrs BTN] as her enduring guardian. If [Mrs BTL] was a person in need of a guardian, all of the decisions required to be made on behalf of [Mrs BTL] could have been made by [Mrs BTN] as her enduring guardian. The Tribunal concluded that even if [Mrs BTL] was a person for whom a guardianship order could be made, then it should not exercise its discretion under section 14(2) to make a guardianship order because any decisions which needed to be made for [Mrs BTL] could be made by [Mrs BTN] as the enduring guardian.
8. The Tribunal identified the issues it needed to determine in respect of the application for financial management as being:

• Is Mrs BTL incapable of managing her affairs?
• Is there a need for another person to manage Mrs BTL's affairs and is it in her best interests for a financial management order to be made?
• If so, who should be appointed financial manager?

1. When dealing with the first question, the Tribunal stated: As set out above in relation to the guardianship order, there was considerable conflicting evidence as to whether [Mrs BTL] was incapable of managing her financial affairs for the purposes of section 25G of the Act. For the reasons set out below, the Tribunal did not need to determine this matter.
2. The Tribunal then went on to consider whether the other grounds set out in s 25G of the Guardianship Act were satisfied and stated as follows: The Tribunal concluded that even if [Mrs BTL] was not capable of managing her affairs for the purposes of section 25G of the Act, then it should not exercise its discretion under section 25G to make a financial management order because [Mrs BTN] was able to manage those affairs as [Mrs BTL]'s attorney. In reaching this conclusion, the Tribunal noted that there was no evidence before the Tribunal as to whether [Mrs BTN] was exercising her powers as an attorney in relation to any of [Mrs BTL]'s financial affairs. If [Mrs BTN] was acting for [Mrs BTL] under the power of attorney, there was no evidence before the Tribunal that [Mrs BTN] was not acting in the best interests of [Mrs BTL] in relation to her financial affairs. The application for financial management should be dismissed.
3. It is apparent, therefore, that the Tribunal below took the view it was unnecessary to determine the threshold issue of capacity in dealing with the application for guardianship because of the view it had formed as to the exercise of its discretion to make a guardianship order. The Tribunal took a similar approach to the assessment of capacity in relation to the application for financial management. As we explain below, in the circumstances of this case, we think that approach was mistaken and that the Tribunal ought first to have made a decision about Mrs BTL's cognitive capacity. .

Grounds of appeal and submissions of the parties

1. The appellant's stated grounds of appeal can be summarised as follows: 1. The Tribunal's reasons for dismissing his application were based on "fabricated and groundless" statements by his sister. 2. His mother was under the influence of his brother and sister and his mother should have been questioned on her own. 3. The Tribunal had concluded that he and his mother had a dysfunctional relationship but this was not true. His sister and brother had set out to isolate him from Mrs BTL and he had been deprived of contact. 4. He presented evidence that demonstrated this influence but it was not taken into account. 5. He had to conduct his case while isolated in a room and not in the presence of the panel which put him at a disadvantage. 6. His sister submitted a response to his application to which he was not given the opportunity to respond. He brought evidence to the hearing to refute his sister's claims but it was not considered by the panel. In particular, the appellant submitted three statutory declarations on the day of the hearing that evidenced his sister's influence over his mother. 7. His sister had used the power of attorney to wrongly evict him from his mother's house but the Tribunal stated this was not relevant. 8. The Tribunal made no attempt to bring the parties to settlement even though the reasons stated that it must do so.
2. The appellant summarised the basis of his appeal as follows: To sum up, I feel that I have been deprived of a fair hearing and natural justice. It appeared that the panel made up their minds based on the information presented by my brother and sister. My mother needed to be questioned separately and I should have been able to attend the hearing in person as the applicant. When I sought legal advice when my brother and sister evicted me from the house and prevented me from having access to my mother, I was told that NCAT sort the outcome of my hearing does not reflect their expectations, all for that matter, the expectations of many members of the community to whom I have spoken.
3. The respondents filed and served replies to the notice of appeal together with submissions.
4. Mr BTM submitted that the decision was fair and equitable and all parties were given the opportunity to respond in writing and submit evidence prior to the hearing. The fact the appellant was not able to attend the hearing in person was because of the interim apprehended violence order.
5. Mrs BTN opposed the appeal. Her reply and written submissions can be summarised as follows: 1. Mrs BTL is capable of making her own decisions. She has difficulty in her speech due to her age but does not have dementia or cognitive impairment. 2. Mrs BTN has been caring for Mrs BTL for the past six years at her request. 3. Mrs BTN was arranging and overseeing her mother's medical and health services appointments and at her mother's direction. 4. Mrs BTN was assisting Mrs BTL in managing her financial affairs at her mother's direction. 5. Mrs BTN was her mother's enduring guardian and attorney and she was happy to take responsibility in the future if Mrs BTL becomes incapable of making her own decisions. 6. Mrs BTL does not need a guardian or financial manager and she is currently able to make her own decisions.
6. Mrs BTN requested that the appeal be heard on the papers because her mother was too ill to attend the hearing and Mrs BTN would be unable to attend the hearing she needed to provide care for her mother.
7. A reply was filed for Mrs BTL, purportedly signed by her, stating that she agreed with the Tribunal's decision and noting as follows: As I informed the Tribunal during the hearing (case 56723), I have evicted [Mr BTK] from my home and no longer wish to have any contact with him. I am a frail 91-year-old, wish to be left in peace. I have already arranged my care/financial matters, in the case that I become incapable. I am happy with these arrangements as I love and trust my daughter completely. For this reason I have granted my daughter Power of Attorney and Enduring Guardianship.
8. The reply document is in English. Her evidence to the Tribunal below was given through an interpreter. A tick has been placed in the section of the reply document directing that a box be ticked if an interpreter is needed for the hearing. We do not know anything about Mrs BTL's capacity to read or write English and, if she does not read or write English, how the document came to be prepared and the contents made clear to her.
9. The Tribunal was provided with written submissions said to be from Mrs BTL. The document purports to be signed by her. There were 21 separate points. The typed submissions were in English. Again, we do not know how they came to be prepared and, if necessary, how the contents were made clear to her. Those submissions including the following: 1. Mrs BTL was able to make her own decisions and she had been making her own decisions, including decisions concerning her lifestyle and financial affairs. 2. She did not have dementia or cognitive impairment and she referred the Appeal Panel to a number of health professional reports which were provided by her general practitioner to the Tribunal below. 3. Mrs BTL was very happy with the care and financial management arrangements that she had put in place and she wanted the appellant to respect her wishes and leave her in peace. It was her wish that her daughter provide her with the health and financial management assistance that she required. It was at her request that her daughter was living with her in her home and providing her with care. 4. Her daughter assisted her in managing her financial affairs at her direction. She had made arrangements for the future in the event that she became incapable of making her own decisions. 5. Mrs BTL referred to the hearing and in particular evidence she gave during the hearing when the Tribunal asked questions of her. She noted that when the Tribunal asked whether she wanted the appellant as her guardian and financial manager she said "no" and when she was asked who she trusted to look after her and her money and assets she said my daughter. This remains her position. 6. Her daughter had asked her on many occasions if she wanted to see the appellant and her answer was "no." She did not want to see the appellant and was very upset and disappointed by his behaviour. He was attempting to take advantage of her speech difficulty for his own self-interest and financial gain. 7. When she was in hospital in December 2013, her daughter assisted her in commencing legal proceedings to have the appellant leave her home and after she was discharged from hospital, she took over the conduct of that matter. 8. She agreed with the decision of the Tribunal to dismiss the appellant's applications and she did not want the appellant to look after her health or financial affairs. Making him guardian or financial manager would be against her wishes.
10. In these submissions, Mrs BTL requested that the Appeal Panel hear the appeal on the papers because she was unable to attend.

Conduct of the appeal hearing

1. The respondents did not attend the hearing. The Appeal Panel telephoned Mr BTM and asked him whether he wished to participate by telephone. He advised that he did not wish to do so. The Appeal Panel also telephoned Mrs BTN and asked her whether she wished to participate by telephone. Mrs BTN stated that she did not wish to participate as everything she wished to say was set out in her submissions. She also said that Mrs BTL was not well enough to participate by telephone.
2. During these telephone discussions, the Appeal Panel indicated to the parties that it was proposing to listen to the audio recording of the hearing. The parties did not object to this course.
3. In these circumstances, the appeal proceeded in the absence of the respondents at the request of the respondents. The appellant made oral submissions along the lines of the submissions made by him in his notice of appeal.
4. The Appeal Panel had regard to the written submissions provided by the parties and the audio recording of the hearing.

Consideration

1. The appellant is not legally qualified nor was he represented. The Tribunal is mindful that it may be difficult for self-represented appellants, like Mr BTK, to identify and properly articulate a question of law. The Tribunal must give effect to the guiding principle when exercising functions under the CAT Act is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit" and "without regard to technicalities."
2. Accordingly, it is appropriate to examine the appellant's notice of appeal and submissions and seek to identify any relevant question of law that may arise. We note that Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
3. Taking this approach, the Tribunal has discerned that three questions of law arise as follows: 1. whether in the exercise of its discretion not to appoint a guardian and not to make a financial management order, the Tribunal failed to take into account any relevant consideration, 2. whether there was a failure to provide reasons, 3. whether there was a denial of procedural fairness.

(a) Failure to take into account any relevant consideration

1. Given the proceedings involved the exercise of a discretionary power, it is relevant to note that the exercise of statutory discretion, being the discretion under s 14(1) and s 25E of the Guardianship Act and in this case the refusal to make the orders sought, can only be overturned in limited circumstances (refer BZE v NSW Public Guardian [2015] NSWCATAP 64 and the authorities cited, House v King (1936) 55 CLR 499 and Hannaford v Commonwealth Bank of Australia [2014] NSWCA 297). As noted in BZE at [15], any attack on a discretionary decision must fail unless it can be demonstrated the decision-maker made an error of legal principle, made a material error of fact, took into account an irrelevant matter, failed to take into account, or gave insufficient weight to some relevant matter or arrived at a result so unreasonable or unjust as to suggest on of the other errors occurred.
2. At the heart of the appellant's position in these proceedings was a contention that there was undue influence of his mother by his sister and brother, contrary to his mother's interests, and with a view to their gain. Inextricably connected with that contention was his contention that his mother was suffering from dementia and, hence, vulnerable to such influence. This contention was made in circumstances where his sister and brother were resistant to the making of a guardianship or financial management order on grounds that his sister had already been appointed as enduring guardian and been granted a power of attorney and, that in any event, his mother was capable of looking after her affairs.
3. In that regard, the appellant pointed to, at least, the following: 1. a change in his relationship with his mother to the point that he is now excluded from any contact with her - a situation which he said had been manipulated by his sister and brother, 2. in support of this, he relied upon three witnesses in the Tribunal below who provided statutory declarations to the effect that:

• they had known the appellant and Mrs BTL for a considerable length of time, namely 50 years, 25 years and 10 years.
• the appellant and Mrs BTL had a caring relationship and the appellant had lived with Mrs BTL for many years.
• tension had developed between the appellant and his siblings. Mrs BTL did not want to evict the appellant from her home and she told each of the witnesses this when they visited her in hospital.
• each expressed concerns that Mrs BTL was either not in agreement with the actions of Mrs BTN or she was under pressure or influence from her. 1. These witnesses were described as a welfare worker, a retired assistant principal and a family friend who had worked with Mrs BTL and her husband in a benevolent society to assist Greeks who had immigrated to Australia, 2. steps taken, at the instigation of his sister under her Power of Attorney, to evict the appellant from his mother's home, 3. the unexplained inconsistency between two reports from his mother's general practitioner, only one month apart, about her cognitive condition. In the first report dated 9 July 2014 it was noted that Mrs BTL had "mild dementia" which was "progressing slowly" but that her condition had not been fully assessed or diagnosed. This report also noted that Mrs BTL "may have reduced understanding due to cognitive impairment" in respect of her health and medical care and the management of her financial affairs. The second report of August 2014 recorded "Nil" against the question whether Mrs BTL had dementia and the boxes adjacent to the questions about whether Mrs BTL's disability affected her decision-making capacity were all ticked "no." On the other hand, it was noted that Mrs BTL was only capable of making a "limited" contribution to the hearing, 4. a report of a social worker dated 1 July 2014 which referred to Mrs BTL earlier admission to hospital. That report noted that, amongst other things, Mrs BTL had been recorded as suffering "dysphagia" and "cognitive impairment," 5. his own evidence about her condition on the last occasion he had seen her, three months before the hearing, to the effect that she was not herself, she was confused and upset and was being influenced by his siblings.

1. Undue influence of Mrs BTL was a relevant consideration to the exercise of the discretion that had to be addressed by the Tribunal below in respect of the applications for guardianship and financial management orders It was central to the appellant's submissions and, whilst we make no finding that it existed, there was sufficient material before the Tribunal to alert them to a risk of it. The Tribunal had a duty to give Mrs BTL's welfare and interests paramount consideration and to protect her from any such undue influence: see, BPY v BZQ [2015] NSWCATAP 33 at [37]-[38].
2. There is a legal standard to be met in order that a matter be considered or taken into account. It is not sufficient to simply advert to the matter: Anderson v Director-General of the Department of Environment and Climate Change (2008) 163 LGERA 400 at [58]; East Australian Pipeline Pty Ltd v Australian Competition and Consumer Commission (2007) 233 CLR 229 at 244 and 256. Consideration needs to involve an "active intellectual engagement" with the issue: Tickner v Chapman (1995) 57 FCR 451 at 462; Mentink v Minister for Home Affairs [2013] FCFC 113 at 114.
3. In order to meet the requirement to consider the undue influence issue in the circumstances of this case and in the context of the Tribunal's power to "inquire into" matters (s 38(2)) and its duty concerning disclosure of all relevant information (s 38(6)(a)), in our opinion the Tribunal needed to: 1. evaluate the significance of the three statutory declarations concerning the change in relations between the appellant and his mother and explore their import with relevant witnesses, 2. explore and evaluate the available evidence concerning the cognitive condition of Mrs BTL and make findings about that condition. In order to do that, the steps that the Tribunal needed to take included: 1. attempt to obtain oral evidence from Dr Z, the general practitioner who provided the two health professional reports and critically examine with him the inconsistency in his reports, 2. bring into consideration the Tribunal's own assessment of Mrs BTL's cognitive condition from the evidence she gave to the Tribunal ( as referred to at [19] above), 1. inquire into the rationality of Mrs BTL's evidence that she did not want to see the appellant.
4. It is clear from the reasons for decision and the audio recording of the hearing that none of these steps were taken. In our opinion, in these circumstances, there was a failure by the Tribunal below to consider a relevant matter, namely the undue influence issue.
5. Furthermore, independently of the undue influence issue, there needed to be, but there was not, consideration of Mrs BTL's cognitive condition, including making findings about that condition, at least, in order to properly assess: 1. the significance of Mrs BTL's views on the making of a guardianship order, and 2. the mandatory consideration in s 14(2)(d) of the Guardianship Act. We deal with this latter aspect in paragraphs 55 and 56 below.
6. The views of Mrs BTL on this subject, if any, were a mandatory consideration: s 14(2)(a)(i) of the Guardianship Act. The Tribunal seems to have obtained Mrs BTL's view against the making of any guardianship order, although that view is not referred to when it dealt with the topic of Mrs BTL's evidence (page 5, second paragraph). It seems implicit that it did so from its conclusion that "[t]he evidence is clear that of all the family, only Mr BTK was of the view that a guardianship order should be made (page 6, third paragraph).

(b) Failure to provide reasons

1. Under s 62(3) of the CAT Act, a written statement of reasons must set out the Tribunal's findings on material questions of fact, referring to the evidence on which those findings are based, the Tribunal's understanding of the law and the reasoning process that lead the Tribunal to the conclusions it made. There is also a common law duty on the Tribunal to provide reasons: Collins v Urban [2014] NSWCATAP 17 at [48]-[57]. It is not necessary for a decision-maker to make a finding on every fact that may be regarded as objectively material but the decision-maker must set out its findings on those questions of fact which it considered to be material to the decision it made and to the reasons it had for reaching that decision (P v Child Support Registrar [2015] FCA 116 at [77] citing Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68]).
2. The Tribunal properly identified and said it had regard to the mandatory considerations set out in s 14(2) of the Guardianship Act (page 6, second paragraph). As to s 14(2)(b), the Tribunal below concluded that a guardianship order would "only result in upsetting the relationship" between Mrs BTL and Mrs BTN and Mr BTM and would have no effect on the relationship with the appellant "as that relationship was already at a dysfunctional level."
3. No reasons are given explaining why a guardianship order would have upset Mrs BTL's relationship with Mrs BTN and Mr BTM. Nor is it clear why the Tribunal concluded that Mrs BTL's relationship with the appellant was dysfunctional. Again, in view of the appellant's contention, it was incumbent on the Tribunal to consider whether undue influence explained the apparent rift between the appellant and his mother. As we have mentioned, there was evidence from third parties, who were not questioned, about the close and long term relationship between the appellant and Mrs BTL. The only evidence referred to in the reasons, although not referred to as the basis for the conclusion that the relationship was dysfunctional, is the answer Mrs BTL gave to a question about whether she wanted to see the appellant. Her answer is recorded as an "emphatic no." A review of the audio recording of this evidence confirms that Mrs BTL responded "no" through an interpreter but it is not clear how this answer could be described as emphatic. It may be that the Tribunal was able to gauge Mrs BTL's reaction to the question through visual cues.
4. An important factor in the decision of the Tribunal below was the mandatory consideration in s 14(2)(d) of the Guardianship Act: "the practicability of services being provided to the person without the need for the making of such an order."
5. It seems that the Tribunal was satisfied as to such practicability. The reason it gave was that the appellant's sister could make all the decisions that needed to be given because of her appointment in February 2012 as an enduring guardian. However, in our opinion, this was not an adequate reason in the circumstances of this case. The question arose as to whether the services Mrs BTL needed were actually being supplied. Again, this required attention to Mrs BTL's cognitive condition, as well as her physical condition. If this question about the supply of services was not considered by the Tribunal then it needed to be.
6. In our opinion, in the above respects, the Tribunal below erred in law in failing to provide reasons.

(c) Denial of procedural fairness

1. In view of our conclusions of errors of law in failing to take account of relevant considerations and failing to give reasons it is unnecessary for the Appeal Panel to deal with the question of procedural fairness other than to say that we have serious reservations about the procedure that was followed.
2. The appellant was not allowed to participate in the hearing other than by telephone from a nearby room. The stated reason for this was the existence of the interim apprehended domestic violence order. This order included an order to the following effect: The defendant must not approach or contact the protected person(s) by any means whatsoever except through the defendant's legal representative.
3. Clearly enough the procedure had the potential to impair the appellant's ability to question witnesses and make submissions having regard to what had occurred before the Tribunal, including about the manner in which his mother gave evidence. The appellant states that he felt excluded from the proceedings and that it was difficult to hear all of the matters discussed. Furthermore, a sense of legitimate grievance may have been fostered by the fact that the other principal protagonists in the proceedings enjoyed all the advantages of an oral hearing.
4. On the other hand, the Tribunal was faced with a difficult set of circumstances given the background of acrimony and the existence of the interim court orders. Also, regard needs to be had to the nature of the Tribunal's jurisdiction in this field which is protective, with the focus upon the person who is the subject of the application. The Tribunal's role is not that of resolving a dispute between parties: BPY v BZQ at [34].
5. There were alternative approaches available to the Tribunal other than excluding the appellant from the hearing. One approach would have been to allow the appellant to attend the hearing in person but to separate him from his siblings and direct him not to approach his siblings or ask questions of his siblings other than through the presiding member. There was no order restraining the appellant from contact with Mrs BTL. However, the Appeal Panel is hampered in its ability to form a concluded view about what approach would have been acceptable or preferable because there is no record of this issue being discussed at the outset of the hearing, either in the audio recording or in the reasons.

Conclusion

1. The Appeal Panel identified a number of errors of law which, in the circumstances of this case, were significant. Accordingly, the appeal was allowed. The decisions were therefore set aside and the proceedings remitted to the Guardianship Division for reconsideration.

---

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: 12 May 2015