DYH v ZNT

The factual background

1. It is convenient at this stage to describe the factual circumstances against which the decisions under appeal were made. The following narration is based upon information contained in the decisions under appeal and a previous decision of this Tribunal published on 29 May 2019. Further information was extracted from material filed by the parties, predominantly by the appellant.
2. ZNU whose interests are at the centre of these proceedings is aged approximately 81 and resides in a home in a Sydney suburb with her son, ZNW. She migrated to Australia in 1967, and Greek is her first language. She previously owned her home jointly with her husband ZNT who has lived separately from her for many years in Cyprus, and who visits his family in Sydney on an occasional basis. The ownership of the home has been contentious, in that ZNT has seemingly transferred his half interest in it without consideration to the son of the appellant, his grandson, ZUJ. This has caused the sister of the appellant, ZNV to express concern about whether ZNU will have a secure right to continue to live in the home.
3. In a decision published on 29 May 2019 this Tribunal appointed the Public Guardian as a guardian for ZNU and the NSW Trustee and Guardian as the financial manager of her estate. In so deciding the Tribunal noted that 1. in a report dated 22 May 2019 Dr Nicolas Cordato assessed ZNU as having impaired capacity to make informed decisions about significant lifestyle matters and an impaired capacity to manage her financial affairs. These impairments were most consistent with Alzheimer's disease, and were permanent, irreversible and progressive in nature with likely further deterioration. She was diagnosed as having Alzheimer's type dementia and was assessed as being susceptible to influence from those in her immediate environment because she did not have the ability to critically analyse their behaviour. 2. An ACAT assessment conducted on 29 March 2019 approved ZNU for a level 3 Home Care package, permanent residential care and residential respite care at a high level. 3. ZNU informed the Tribunal that she lived in her own home with her son (ZNW), her health and memory were very good, and she relied on her family for support. 4. ZNT said he had been living overseas for 10 to 12 years and did not have much contact with his wife. When he came to visit her, his son ZNW would not allow him into the home. 5. The appellant said that ZNW was isolating her mother and had changed the locks to the home. 6. Both the appellant and ZNW accused each other of having mental health issues 7. ZNW had lived in his mother's home for 56 years and did not pay rent. He had withdrawn monies from his mother's account and loaned some monies to ZNV 8. both sisters accused ZNW of isolating their mother. ZNW worked night shift and for some years ZNV had slept in the home 6 nights a week to look after ZNU, but she had had an argument with ZNV who restricted her in attending the home 9. only ZNT and ZNW had sought to be appointed guardians. ZNT was unsuitable because he lived overseas, and the Tribunal was concerned about the capacity of ZNW to bring an independent and objective mind to the responsibilities of guardianship. The Tribunal appointed the Public Guardian as ZNU's guardian for a period of 12 months with the functions of accommodation, health care, legal services, medical and dental consent, services and access. 10. ZNU had appointed ZNW as her attorney under an enduring power of attorney on 22 October 2018. The Tribunal had considerable concerns about the management of her affairs by ZNW, determined to consider the application for review of the enduring power of attorney as an application for a financial management order, determined that ZNU was in need of the appointment of a financial manager and that in all the circumstances, including "the high degree of conflict within the family" the NSW Trustee and Guardian should be so appointed.
4. Subsequently, the appellant filed an application with this Tribunal to review the guardianship order. That application was dismissed. There were further interlocutory and other proceedings relating to ZNU. Those other proceedings included an application to the Tribunal brought jointly by the Public Guardian and the NSW Trustee and Guardian seeking orders that the names of the officers of those organisations dealing with the guardianship and financial management of the estate of ZNU not be disclosed, and in particular not be disclosed by the appellant. The basis of that application was the asserted scurrilous and abusive nature of email communications from the appellant to officers of both organisations. Orders to that effect were made by the Tribunal on 11 December 2020 and remain extant.

The review of guardianship decision under appeal

1. The decision under appeal is dated 15 December 2020 and dealt with an application brought jointly by the appellant and her son ZUJ on 13 July 2020 to review the then current guardianship order made on 18 June 2020. An application to review the financial management order was also brought.
2. The application to review the guardianship order alleged that a named officer of the Public Guardian had not acted appropriately and should be replaced "with a professional private guardian to conduct the administration of our mother in a more legal and fair process." The appellant named as proposed guardians two persons, one of whom was a family friend and retired engineer and the other a family friend and solicitor.
3. In the course of his reasons for decision, the Senior Member noted that 1. a written report from the Public Guardian recorded a decision that ZNU should continue to reside in the family home and not enter an aged care facility, that she should be reviewed by Dr Ho and that a home care funding package should be accepted on her behalf. 2. The appellant had made several proposals to enable her to have access to ZNU and that they were declined. Reasons for doing so included the "expressed desire" of ZNU not to speak to the appellant or to have her visit her in her home. 3. The Public Guardian wanted to defer consideration of access by the appellant until receipt of the report of Dr Ho, and "in the light of that report" to trial an arrangement for the appellant to meet with ZNU in a community setting with the support of a formal carer on a trial basis 4. ZNV said that ZNU was happy living at home and had a high standard of care, that the Public Guardian had been diligent and supportive, and that the complaints made by the appellant concerning the Public Guardian were motivated by monetary concerns, including a desire to obtain control of the home and dispose of it, rather than by concerns about ZNU's welfare. 5. Dr Ho was a medical specialist whose area of practice was "geriatric psychiatry and care." A report of Dr Ho had been provided to the Tribunal. It was prepared with the assistance of a Greek interpreter and was to the effect that ZNU appeared physically well, happy and settled and that there was no need to move her into high level care having regard to the support she received in her home. Furthermore, ZNU preferred to remain living in her home. The report noted that "Detail about family visits was difficult to gain today due to her memory deficits and inconsistent responses." 6. The report of Dr Ho was inconsistent with the allegations made by the appellant that ZNU's domestic circumstances were such that they warranted replacement of the Public Guardian. 7. The appellant did not provide any evidentiary material to corroborate her assertions that the best interests of ZNU were not being accommodated by the conduct of the Public Guardian. 8. There was however information provided by third parties which corroborated "intense hostility between certain family members which at least sometimes descends into the level of physical threats." 9. ZNU continued to be in need of the appointment of a guardian, and given the hostility between all of the children, that person should be independent of the family members. 10. Neither of the persons nominated by the appellant was suitable. Firstly, the retired civil engineer had first met ZNU 4 years previously, he had provided some handyman assistance then and on 3 subsequent brief occasions but had not seen her for about 3 years. There was no evidence that his personality was generally compatible with that of ZNU. Furthermore, a statement which he had made for the purpose of the proceedings indicated that he accepted the opinions of the appellant "without any reservation, qualification or scepticism." This impacted adversely on whether he possessed the appropriate degree of objectivity and independence in dealing with a bitterly divided family. The solicitor had worked for a period with the appellant and had maintained contact with her. She had visited the family home on a few occasions only, and initially said that she would only accept appointment as one of two co-guardians. Although she was able to converse in Greek the Senior Member was concerned about her long-standing acquaintanceship with the appellant which created a risk that she would not seek to perform the duties "diligently and appropriately, but rather that the tensions in balancing the individual family members' seemingly irreconcilable views would soon place her in an impossible position."
4. Having regard to all of these matters the Senior Member determined to dismiss the application.

The review of the financial management order decision under appeal

1. In seeking a review of the financial management order the applicants complained that the NSW Trustee and Guardian had not been performing its duties in a competent manner. They complained of a failure to claim rent from ZNV and ZNW for their occupation of the property, given that ZUJ owned half of the property, a failure to pay outgoings and in allowing weekly drawings from the bank account of ZNU to be increased from $100 to $250 without explanation at the request of ZNU.
2. In his reasons for decision the Senior Member noted that there was no controversy concerning the lack of capacity of ZNU to manage her affairs.
3. The Senior Member summarised the case put forward by the applicants as follows 1. the applicants complained that the financial manager had not been diligent in investigating a number of large withdrawals from accounts of ZNU conducted in Australia and in Cyprus 2. the applicants complained that the financial manager had commenced family law proceedings on behalf of ZNU against ZNT claiming an interest in the family home, because he had transferred his one half interest to ZUJ 3. the applicants complained that the financial manager had in some way precluded ZNU and ZNT being reunited in a suitable aged care facility in Sydney 4. DYH said she wanted to supervise the management of her mother's financial affairs to protect her mother's interests and had been precluded from receiving information about her mother's financial affairs to ensure that her inheritance was not endangered
4. The Senior Member summarised the response of the financial manager as follows 1. its representative consulted regularly with ZNV who was the primary carer of ZNU concerning her financial needs 2. the weekly allowance had been increased at the request of ZNV to meet increased recurrent costs. 3. it was not appropriate overall to charge any rent or occupation fee to ZNV or ZNW because they both contributed to the welfare of ZNU by providing support and assistance to her 4. details of property outgoings, all of which had been paid, would be provided to ZUJ upon his request 5. having reviewed all of the withdrawals from accounts kept by ZNU in Australia it was satisfied that they were for proper purposes including acquiring household furniture or white goods and paying for renovation work 6. investigation of the accounts in Cyprus required it to seek appropriate authorisation to comply with Cypriot banking law, a process which was in train 7. the family law proceedings had been initiated to protect the one half interest of ZNU in the family home, especially in circumstances where her husband from whom she had been separated for about 14 years and was living in Cyprus had gifted his one half interest to his grandson, the son of the appellant.
5. In determining this application, the Senior Member noted that the financial manager had provided a comprehensive report concerning the financial affairs of ZNU as at 1 December, 2020. Having reviewed that report the Senior Member concluded that ZNU remained solvent, was living within her income and means and retained a substantial cash reserve to address unexpected contingencies, including legal expenses in the family Law application.
6. The Senior Member also obtained information from ZNV concerning her involvement as primary carer. She said that her mother was very sociable and invited friends to coffee or light meals, and the increased drawings enabled her to entertain her friends, from which she derived pleasure.
7. In the application DYH had nominated an accountant who was conversant in Greek as a suitable person to be appointed financial manager. However, in discussion with the Senior Manager this person said that he would only be prepared to carry out work without charge if his duties were restricted to receiving, holding and distributing pension income. He said he was not prepared to undertake work in connection with the wider financial management issues including the conduct of the family Law application. On this basis the Senior Member concluded that there was no one suitable to replace the current financial manager.
8. In his reasons for decision the Senior Member concluded that the criticisms of the applicants concerning the conduct of the financial manager had not been sustained. Without commenting in any way on the merits of the family Law application, the Senior Member concluded that it was in the best interests of ZNU to finalise it "in a way which best protects her interests and welfare."

The submissions of the appellant

1. The appellant provided many pages of written submissions, some of which she repeated orally in the hearing before us.
2. The appellant said that the Senior Member was biased. When asked to explain the basis for the submission she said that when taking appearances at the commencement of the telephone hearing the Senior Member appeared to be "familiar" with the solicitor appearing for the NSW Trustee and Guardian. The appellant deduced that the Senior Member knew her. The appellant was directed to provide a transcript of the proceedings taken from a recording which had been made available to her. She produced a document which purported to be a transcript, which contains running comments on the proceedings. The appellant informed us that she had typed up that transcript herself. This document discloses that the Senior Member conducted himself in an appropriate and courteous manner when introducing himself over the telephone to each of the participants, including that solicitor. There is no indication of any undue familiarity, which can only be based on the appellant's conjecture. There is no basis for this submission.
3. In essence, the appellant complained about the conduct of her siblings, and asserted that the Senior Member had erred in not taking into account the misconduct which she alleged they had engaged in. This submission lacks any substance. The Senior Member did not assess the relative conduct or misconduct of each of the siblings, other than to note that they were in conflict with each other. This is consistent with observations of the Tribunal in the earlier 2019 proceedings to which we have previously referred.
4. Having determined that ZNU had a disability as defined in the Guardianship Act and was in need of the appointment of a guardian, the principal function of the Senior Member was to determine who should be appointed guardian, and what functions should be given. It is well-established that great care must be taken in appointing a suitable guardian in circumstances where the person concerned has a dysfunctional family, as is clearly the case in these proceedings. This is not a case where any good purpose would be served in determining the relative merits of the positions taken by each of the warring siblings. The appellant complained that the Senior Member had failed to assist in preserving the family "and the love and closeness of a family." This is a task for the family members, not this Tribunal.
5. The appellant complained that the Senior Member relied upon the opinion of Dr Ho in accepting that it was appropriate that ZNU remain in her home with appropriate care. She said that Dr Ho was not competent to make this assessment. Prima facie Dr Ho was entitled and qualified to express this opinion. Prima facie the Senior Member was entitled to accept it, and in the absence of any other evidence made no error in doing so. Whilst we appreciate that the appellant might be restricted in obtaining contrary evidence, she must also appreciate that the Tribunal can only proceed on the information provided to it. The appellant has not produced any information which might give concern about the opinion of Dr Ho, other than the inherent dislike that DYH has for her siblings.
6. The appellant complained also that the Senior Member ignored or did not deal with evidentiary material but did not produce that material. In the same vein, the appellant made broad assertions but provided no corroborative material. For example, in written submissions the appellant said, in part, the lack of evidence and submissions from the Public Guardian and (ZNV) and financial manager were insufficient, no facts or evidence are provided to (the Senior Member) to make a biased decision on he say (sic) and verbal information (the Senior Member) failed to refer to speaking with ZNT to obtain his view on his wife and her situation, that they are still legally married and he has major concerns as a husband of her health that (the Senior Member) attended the hearing without any support of legal members to respond to the large submissions provided that the hearing on 15 December 2020 was given little attention to the evidence of (ZUJ) the grandson and owner of the house, no evidence was provided by the financial manager to address the reasons why he is not being given the documents he requests as a property owner that (the Senior Member) gave little regard for alternative private guardian to effect a better access and other more fundamental accessible issues which are continued concern for the applicants
7. The effect of these submissions is that the appellant is dissatisfied with the findings and overall decision of the Senior Member because they do not accord with her desired outcome of the proceedings.
8. Many of the matters raised by the appellants are irrelevant to the matters which were required to be determined by the Tribunal. We have already described in summary terms those that applied to the guardianship review. In terms of the financial management review, this was essentially confined to a consideration of the conduct of the financial manager and whether an alternative financial manager should be appointed. The appellant complained that the Senior Member accepted the information contained within the report of the financial manager but she did not provide any appropriate basis upon which the Senior Member should have rejected that information.

Consideration

1. Having regard to our understanding of the information which was put before the Senior Member as reflected in his extensive reasons, he was entitled to make the findings which he did, and express the conclusions which form the basis for his decisions concerning both guardianship and financial management. We can see no error in the reasoning of the Senior Member as contained in his comprehensive, and measured reasons for decision. We have not been taken to any evidence by the appellant which might arguably have indicated that the Senior Member erred in the findings and conclusions which he made. There is no basis upon which it could be said that the Senior Member failed to take into account evidence which was relevant, or that he took into account evidence which was not relevant. We conclude that there is no merit to the appeal, and it should be dismissed.
2. We have previously referred to the fact that ZNT has resided overseas for many years. We understand that ZNW did not wish to participate in the proceedings. There is no indication that ZUJ would be able to bring any information to bear on the outcome of the proceedings that was not available to his mother, the appellant. Having regard to the limited issues in the appeals we conclude that the nonappearance of these persons would not materially affect the outcome of the proceedings. In any event there is evidence in the Tribunal file that each of them was notified of the appeal hearing. ZNT and ZUJ chose to seek to be represented by a person who was not permitted to do so and should have been available to participate in those circumstances.
3. Arguably some of the matters raised by the appellant may involve matters of law and leave to appeal is not necessary. We have found no errors of law.
4. As to the other grounds of the appellant, we have applied the general principles as to the granting of leave outlined in Collins v Urban [2014] NSWCATAP 17 at [84]. We have not been persuaded by the appellant that the Tribunal made an error which would justify the grant of leave.
5. As we have determined, overall, that the appeal must be dismissed on its merits, we shall do so.

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: 18 May 2021