EB v GB

Supreme Court of NSW|2022-07-21|Before: Robb J

Solicitors: Macpherson Kelley (Plaintiff/Applicant) Bartier Perry (Defendants/Respondents) File Number(s): 2018/213582

Judgment

The primary issue addressed by the parties in this matter is whether the Court has jurisdiction to require a mother, against her wishes, to authorise a daughter to have personal access to her father who is almost entirely unable to communicate or perceive his circumstances by reason of advanced Alzheimer's disease. As will be seen, upon closer analysis, the issue becomes somewhat more complex than has just been stated.
Given the sensitive nature of the issues raised by the application, I will refer to the people involved as the daughter, the father, the mother and the two brothers.

Relevant instruments

As I have mentioned, the father is now 98 years of age and is suffering from Alzheimer's disease. I will outline the effect of the evidence concerning the father's cognitive and physical circumstances more fully below.
The father executed a document called Appointment of Enduring Guardian on 27 June 2016. Relevantly, the document provided: 1. I, [the father] appoint [the mother] to be my enduring guardian provided that, if [the mother] has died or is legally incapable of acting as my enduring guardian then I appoint my children [the brothers and the daughter] to be my enduring guardians. … 5. I authorise my enduring guardian(s) to exercise the following functions. (a) To decide where I live. (b) To decide what health care I receive. (c) To decide what other kinds of personal services I receive. (d) To consent to the carrying out of medical or dental treatment on me (in accordance with Part 5 of the Guardianship Act 1987). 6. The authority conferred on my enduring guardians under this Appointment of Enduring Guardian is given with the intention that it has effect only during such period of time during which I am partially or totally incapable of managing my person and will continue to have effect during those periods. … 9. The functions of my enduring guardians must be exercised in accordance with the following directions: (a) In the event of the need for emergency treatment and/or life saving surgery during loss of cerebral functioning, my enduring guardian has my permission to give or sign any necessary consent in accordance with these directions. (b) In the event that my life is being sustained only because of the use of artificial means of life support and, in the opinion of two independent medical practitioners, there is no reasonable likelihood of me recovering from that state then I direct my enduring guardian to cease all of those artificial means of life support and, with the assistance of palliative care, allow me to die in peace and with dignity.
In her submissions, the daughter relied upon the fact of her alternate appointment as the father's enduring guardian as evidence demonstrating the father's attachment to the daughter at the time the appointment was made.
Although clause 9(b) is concerned with the end-of-life circumstance where the father's life is sustained only because of the use of artificial means of life support, it is of some significance that the objective of the provision is to allow the father "to die in peace and with dignity."
The father also executed an Enduring Power of Attorney on 8 May 2017 in which he appointed the mother and the brothers jointly and severally to be his attorneys with the following powers, as stated in clause 2: My attorney/s may exercise the authority conferred by Part 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do. I give this power of attorney with the intention that it will continue to be effective if I lack capacity through loss of mental capacity after its execution.
This grant of power was preceded by a preamble that provided: An enduring power of attorney is a legal document that allows you (the principal) to nominate one or more persons (referred to as attorneys) to act on your behalf. An enduring power of attorney gives the attorney the authority to manage your legal and financial affairs, including buying and selling real estate, shares and other assets, operating your bank accounts and spending money on your behalf. The attorney's power continues even if for any reason you lose your mental capacity to manage your own affairs. Once you lose your mental capacity you cannot revoke this power of attorney. If you want the power of attorney to cease if you lose your mental capacity, use the General Power of Attorney form. An attorney under an enduring power of attorney cannot make decisions about your lifestyle or health. These decisions can only be made by a guardian (whether an enduring guardian appointed by you or a guardian appointed by the Civil and Administrative Tribunal or the Supreme Court). …
These clauses have been taken from the prescribed form of enduring power of attorney: see Powers of Attorney Regulation 2016 (NSW), Sch 2. This instrument created an enduring power of attorney for the purposes of the Powers of Attorney Act 2003 (NSW) as it was expressed to be given with the intention that it will continue to be effective even if the principal lacks capacity through loss of mental capacity after execution of the instrument: see s 19(1)(a). Section 21(1) provides that an act done by an attorney that is within the scope of the power conferred by an enduring power of attorney is effective even if the act is of such a nature that it is beyond the understanding of the principal through mental incapacity at the time of the act.
On 27 June February 2019, the father entered into an agreement called 'Residential Agreement for Residential Care' with the aged care provider in respect of his residence at the aged care home (Resident Agreement). The Resident Agreement was signed on the father's behalf by the mother under the Enduring Power of Attorney.
In the Summary of Key Terms, the mother was identified as the father's 'resident representative'.
Clause 4 of the Resident Agreement contained the following provisions concerning the position of the resident representative: 4.1 Resident representative If You have nominated a resident representative in the Summary of Key Terms, then in undertaking that role or signing this agreement on your behalf, the resident representative: (a) acknowledges and agrees that their rights are defined and set out in the Act and this agreement but otherwise, any decisions as to Your health and financial affairs may be determined by Your enduring attorney or enduring guardian; … (h) will assist the Care Facility where necessary in connection with the provision of care to You; …
In relation to the rights of visitors and guests having access to the father at the aged care home, the Resident Agreement provided: 5.3 Visitors and guests You agree and acknowledge all visitors and guests entering the Care Facility to visit You are subject to the Care Facility Rules and must abide by all reasonable requests and directions issued by Us. You agree and acknowledge We may refuse entry to the Care Facility to any visitor or guest or Your resident representative if they fail to comply with all reasonable directions issued by Us or the Care Facility Rules.
The Act referred to in clause 4.1(a) is defined in clause 20.1 as the Aged Care Act 1997. No term of that Act is material for the purposes of these reasons.
The only relevant Care Facility Rule as stated in Schedule 10 is: 5. Visitors can only visit You during reasonable hours. Your visitors must follow any directions given by the Care Facility.
Under clause 12.1 of the Resident Agreement, the aged care provider agreed to provide to the father the 'Care Services' which were described in detail in Schedules 6 to 9.

Earlier proceedings

The present application is the distant derivative of a number of proceedings commenced in this Court by the daughter against the other members of her family, and a number of companies controlled by the family. The claims made by the daughter were complex and contentious and it is not necessary to describe the nature of those claims in any detail. It appears that the proceedings were commenced in 2018 and included a claim by the daughter for an order that the other members of her family acquire the daughter's shares in a family company for fair value and a claim by the daughter that the sale by the two brothers of shares in a family trust company was unauthorised and an order that a new trustee be appointed. It appears that the mother and the two brothers obtained an order in the NSW Civil and Administrative Tribunal - Guardianship Division (the Tribunal) that the daughter was incapable of managing her affairs, and by separate proceedings in this Court commenced in 2018 the daughter sought to appeal from the Tribunal's orders and requested that the Court inquire into and determine the capacity of the daughter to manage her financial affairs.
After substantial forensic effort had been expended and considerable legal costs incurred, on 18 March 2020 I am made orders including a declaration that the daughter is incapable of managing her affairs and an order that the estate of the daughter be subject to management under the NSW Trustee and Guardian Act 2009 (NSW).
The Court was advised that the parties had reached an agreement in principle to settle their dispute, and I made a notation that senior counsel for the daughter would provide to the Court a confidential opinion as to the appropriateness of the settlement.
On 7 May 2020, I made orders by consent that had the effect of determining the disputes between the parties. I appointed a new manager of the estate of the daughter and made orders that approved the terms of heads of agreement executed by or on behalf of the parties on 8 and 9 March 2020.

Daughter's requests to visit the father

The prosecution of those proceedings by the daughter was capable of causing an alienation of the daughter from the other members of her family, and it is evident from the following extract from a letter dated 17 June 2020 by the solicitor for the respondents to the notice of motion to the solicitor for the daughter that it did so: The "special relationship" to which you have referred previously, and [the father's] close and protective relationship asserted below, all predate your client commencing proceedings against him over 2 years ago. From that time on, [the daughter] decided that all communication was to be through lawyers. The family has accepted that requirement, and moved on. Moreover, [the father] was devastated that [the daughter] was suing him and the other family members. To him, it was unbelievable. Any special relationship ceased in March 2018.
That letter was in apparent response to a letter from the daughter's solicitor dated 15 June 2020. That was part of a series of communications between the respective solicitors that commenced on about 19 May 2020 when the daughter's new financial manager asked her solicitor to assist in arranging for the daughter to be able to visit her father. This request was apparently made after the daughter had unsuccessfully attempted to arrange to visit the father by her own efforts. The mother's response to the request made through her solicitor was initially that the mother was seeking medical advice from the father's general practitioner.
This chain of correspondence led to the daughter's solicitor's 15 June 2020 letter, which included the following: While we can respect your client's wishes to proceed advisedly in [the daughter's] access to [the father], absent an AVO or court order, there can be no reason at law, why [the daughter] can't seek access to [the father]. [The daughter] has spoken at length with representatives of dementia Australia who confirm this position. While neither [the mother nor the brothers] may wish to have contact with [the daughter], that cannot be the case with [the father] who as you and the family know only too well was very close to and supportive and protective of [the daughter] over many years. For your clients to deny or attempt to deny [the daughter] access to [the father] seems unnecessarily cruel, especially in circumstances where in correspondence between [the financial manager and a person not identified in the evidence] phrases such as moving away from confrontation; a common object of protecting [the daughter] to protect and financially support her have been used. In this context those phrases have a hollow ring. Surely if [the father] has a support person with him (such as his GP or nurse) and [the daughter] was accompanied by a support person (either [a representative of the financial manager] or me), the meeting could be facilitated. If the meeting goes well, there may be future access arrangements made. If the meeting does not go well, it can be terminated by [the father's] support person and or [the daughter]. At least in either event there may be some closure to this unhappy circumstance. If this request cannot be facilitated then [the daughter] must consider her options and the parties may incur further substantial legal fees, which surely neither want?
The continuing negotiations between the parties' solicitors did not bear fruit.
On 8 July 2020, the daughter's solicitor asserted to the solicitor for the respondents that: "Apart from the families (sic) determination to deny [the daughter] access to see [the father], there seems to be no legal or medical reason for that access to be denied." The daughter's solicitor asked to be advised of the name of the psychogeriatrician whom the respondents intended to appoint to advise on the suitability of the daughter visiting the father and when the assessment was likely to be completed. The daughter's solicitor's email continued: "Absent advice on these matters we expect instructions to make an application to Robb J when the matter next comes before him for appropriate orders and we will rely on this correspondence on the question of costs."
This communication was supported by an opinion expressed in the daughter's psychiatrist's letter to her solicitor dated 1 July 2020 that was provided to the solicitor for the respondents.
The respondents' solicitors responded by email dated 13 July 2020 that advised that: "it is [the mother], as [the father's] guardian, who is making the decision as to [the daughter's] request, not the family, as suggested in your email below."
On 6 August 2020, the proceedings came before me to make directions in relation to issues unrelated to the daughter's attempts to visit the father. Before the directions hearing, my Associate had received a draft notice of motion from the solicitor for the daughter that sought various orders to facilitate her having access to the father. I was advised by senior counsel for the respondents that the mother was still considering the request and certain information provided to her in its support. Senior counsel requested the Court to defer dealing with the issue and I complied with that request.
It did not become necessary for the Court to resolve the dispute, as on 18 August 2020 the solicitor for the respondents wrote to the solicitor for the daughter to confirm that the parties had agreed to a Zoom videoconference between the daughter and the father on certain terms, including that an employee of the aged care home be present throughout the meeting to monitor any impact on the father's well-being, and that the meeting would be terminated if the father showed any signs of distress or the daughter raised for discussion identified subjects related to the litigation between the parties.
The daughter's evidence was that she has not physically seen the father since 2017. She has had a 10-minute telephone conversation with him in August 2018, and the first Zoom meeting took place on 20 August 2020. The daughter gave evidence that she was greatly distressed to have received on 10 September 2020 an email from the COO of the aged care home stating that the window of opportunity for her to communicate with the father had passed, due to his deteriorating health, rare moments of lucidity, and his inability to communicate. The daughter gave evidence of unsuccessful attempts to communicate with the father for Father's Day in 2020. A second Zoom meeting occurred on 7 December 2020. The daughter's evidence was that during this meeting the father made a clear statement that he loved her. The daughter received a text message from her niece on 19 May 2022 about the father's ill-health. She said she is seriously concerned about her father's health and his apparent deteriorating condition. She said that she would be deeply upset if she missed an opportunity to say goodbye to her father. The daughter called the dementia ward of the aged care home on 24 May 2022 in an attempt to speak to the father. She was permitted to speak to him but understood there was a possibility he would not have the ability to speak. When she told the father who was speaking "he let out an almighty scream like he was trying so hard to speak, but couldn't. I told my Father that I loved him and missed him, I said I was sorry I could not see him and hug him in person, and he gave another almighty scream." The daughter had her third and final Zoom meeting to date with the father on 25 May 2022. The daughter's evidence was that she asked the father whether he would like her to visit and he made another almighty noise that the daughter believed was an affirmative response by the father.
Since that date the daughter has made a number of unsuccessful attempts to visit the father.
On 1 June 2022, the daughter's solicitor sent an email to the solicitor for the respondents that said: We refer to previous correspondence regarding our client [the daughter] visiting [the father] at the [aged care home]. We forward below an email from our client updating us on her recent contact with [the father] and her determination to have personal access to visit him before he dies. We appreciate your clients [the mother and one of the brothers]) have previously expressed their strong objections to [the daughter] visiting [the father], for a whole host of historic reasons (including, before Robb J in August 2020), but surely since the settlement of the several court cases (in May 2020) and the lapse of time those objections might be revisited. Please take instructions to allow [the daughter] to visit [the father]. In the event your clients refuse our clients request, as you will see, we have instructions to make an appropriate application to the Court with consequent costs. We trust this will not be necessary.
The respondents' solicitor responded on 20 June 2022 to advise that the mother was seriously unwell and the solicitor had not been able to obtain instructions on the issue. The response noted that the solicitor had instructions to accept service of the foreshadowed notice of motion.
For obvious reasons, the continuation of the COVID-19 pandemic prevented the daughter visiting the father in person, but those restrictions have now been relaxed, at least in their absolute form.
The daughter has provided evidence that she has been properly immunised against COVID-19.
The respondents' solicitor responded further on 5 July 2022 by advising the daughter's solicitor that the mother is the father's guardian, and that the brothers have not precluded and cannot preclude the daughter's access to the father.
By email dated 12 July 2022, the daughter's solicitor referred to a recent conversation with the respondent's solicitor in which he had been told that the respondents' solicitor had not been able to speak with the mother but that her current instructions were to defend the daughter's application. The daughter's solicitor urged the respondents to consent to the daughter having physical access to see her father, and for that purpose enclosed proposed draft short minutes of order.
The respondents' solicitor replied on 14 July 2022 to confirm that she had not been able to obtain instructions from the mother regarding the daughter's requests or with respect to defending the matter, because of the mother's ill-health. On that basis, the respondents were not in a position to enter into consent orders.
The daughter stated in her final affidavit sworn on 20 July 2022: 5. If I am permitted access to physically visit my father I undertake to the court that I will conduct myself as I always have with my father lovingly and respectfully and will in no way upset the staff at [the aged care home]. I will be accompanied by my carer [named]. 6. I am concerned that my father is almost in a state where palliative care is required and it is my earnest wish to visit him on what may be the last occasion I will see him physically.

Respondents' evidence

The respondents served their evidence in defence of the daughter's application on 18 July 2022.
Notwithstanding the fact that the respondents have taken the position that it is the mother as the enduring guardian of the father who has the right to decide whether the daughter is permitted to visit the father in person and that the mother is too physically ill to give final instructions as to whether to resist the daughter's application, it is clear that the respondents have in fact resisted the application adamantly and for that purpose they retained the services of senior counsel.
It will be necessary now to outline the evidence relied upon by the respondents. I will deal with that evidence in the order in which it appears in the court book.
The respondents' solicitor swore an affidavit on 24 June 2022. The solicitor deposed that both the mother and the father reside in the same residential aged care facility, although in different wings of the facility due to their differing needs. The solicitor gave evidence on information and belief from one of the brothers to the effect that the mother had been caused considerable stress and distress as a result of being told that on about 31 May 2022 the daughter tried to visit the father in person.
The brother also advised the solicitor that on 22 June 2022 the mother made statements about wanting to end her life. The mother has been examined in hospital but has not yet received a diagnosis. The brother reported that doctors had said that stress was a contributing factor to the mother being unwell and that the mother had been referred to a geriatrician. The brother claimed that: "[The mother] knowing that [the daughter] is trying to get in to see [the father] using a false name has significantly heightened her stress."
The brother advised the solicitor that the issue of the daughter wanting access to the father had not been raised with the mother again because she is too unwell to deal with the additional stress.
The solicitor referred to her letter to the daughter's solicitor dated 20 October 2020 as "'setting out [the mother's] position regarding [the daughter's] request."
The solicitor also said that she had been instructed by the brothers that they do not oppose the daughter arranging a Zoom meeting with the father as that aligned with the mother's position as of late last year.
It thus appears that the mother may not presently be capable of giving up-to-date instructions to the solicitor and that the brothers have taken the view that they should instruct the solicitor to oppose the daughter's application on the basis that such opposition would be consistent with the stance adopted by the mother in 2021. I will refer below to additional evidence that suggests that the mother at a later time authorised one of the brothers to instruct the solicitor to oppose the daughter's application.
As the respondents do not oppose the daughter having a Zoom meeting with the father, the issue at the heart of this application has become whether the Court has power to make an order that the meeting between daughter and father should take place in person and if so whether that order should be made.
The effect of the solicitor's affidavit was to revive the statements in the solicitor's 20 October 2020 letter as being the grounds upon which the mother resists the Court making the orders sought by the daughter.
The essence of those reasons is contained in the following extract from the solicitor's letter: 9. With respect to the issue of whether [the daughter's] proposed visit would be to give care and support to [the father], we are instructed as follows: (a) Given [the daughter's] broken-down relationship with [the father], resulting from the Court proceedings as identified above, [the daughter] is incapable of providing care and support to [the father]. This is exacerbated by [the daughter's] cognitive impairment and as the medical reports reveal, an ongoing dependence on cannabis, opiates and benzodiazepines. (b) [The daughter] wishes to visit [the father] not to provide care and support to him, but to advance her own perceived interests. To date, [the daughter] has not identified any benefit [the father] would gain from the visit. (c) Whilst [the daughter] asserts she had a "special relationship" with [the father], this is rejected. [The daughter] may have perceived it as such, but it was a one-way relationship which [the daughter] used to her benefit to fulfil her own needs, such as money to purchase drugs, food (supplied by [the father] who would be sent to the local shops most days by [the daughter] in the years prior to the court proceedings being commenced to purchase a takeaway coffee, or other food items for her) and problem solving. [The daughter] was often abusive and disrespectful towards him. She was known to telephone him in the early hours of the morning if she'd had a fall, even when he was in his early 90s. The demands on him were relentless. (d) We note [the COO's] comment that [the daughter] "has not made care and support visits in recent months." It is [the mother's] position that, for the reasons identified above, [the daughter] has not provided care and support to [the father] for many, many years, and certainly not since she named him as a defendant in two sets of Supreme Court proceedings. We are of course speaking of the past, and regret having to repeat these issues, however, they respond directly to the allegations now raised and the concerns our client holds. Speaking of the present, it is plain that [the father] will derive no benefit from the proposed visit because he cannot recognise [the daughter] and she cannot offer care or support to him.
Given that there is an issue concerning the nature of the daughter's psychological disabilities, it is also worthwhile noting the following additional extract from the respondents' solicitor's 20 October 2020 letter (emphasis in original): 4. As to [4] of your letter, we are instructed: … (f) We note [the daughter's] denial of outbursts, however, we are instructed to note the medical evidence in this regard, for example [named doctor's] Report dated 22 May 2019 notes that "[named person] also documented that [the daughter]… had "been observed in conflict with others in public, with her behaviour quickly escalating to yelling and waving her crutches if she feels frightened, threatened or disrespected"… Further, we are instructed that each of [the mother and the brothers] recall that [the daughter's] outbursts at family functions were common, often directed towards [the father] and generally not accompanied by any objectively reasonable catalyst. In addition, [the daughter's] cognitive impairments are also well documented. To this end, our client notes the report of [named doctor], dated 12 December 2019 which provides: (i) "The results from the comprehensive neuropsychological assessment have revealed evidence of cognitive impairment, which I believe would likely interfere with [the daughter's] complex decision making ability."… (ii) "[The daughter's] insight is reduced. She did not agree with the extent her cognition was reported to be impaired when she was over-medicated… [The daughter] demonstrated limited insight into her cognitive limitations and behaviour, which would likely reduce her capacity to recognise, compensate for, and monitor any issues that may arise as a result of her own actions."… These issues are legitimate concerns for [the mother] considering [the father's] ill health.
Although there has been ample opportunity for the mother to say so if it were the case, she has not justified her prohibition of the daughter visiting the father in person by relating any statement made to her by the father that the father did not want to be visited by the daughter or to speak to her again.
The respondents tendered a report dated 18 July 2022 by the general practitioner who is the doctor for both the mother and the father.
The doctor said that the father was diagnosed in February 2018 as suffering from moderate to advanced Alzheimer's type dementia with a possible vascular component. The doctor said: [The father's] general condition has deteriorated substantially in the last few months. He is unable to recognise family, myself and staff. He requires assistance with all activities of daily living (ADL's). He is bed ridden and has lost the ability to chew solid food. His condition has deteriorated to the extent that on 5th of April 2022 Palliative Care was discussed with [the mother]. [The mother] elected to continue conservative management.
The doctor expressed the opinion that the father would be unaware of the visit by the daughter. That is, he is unable to recognise anyone, and though he may have very brief periods where he seems to acknowledge the presence of a person, he is incapable of verbally responding to the person present.
The doctor also gave evidence of the likely effect on the mother of the daughter being permitted to visit the father in person. The doctor gave evidence of the mother's medical condition, but it is not necessary to set out that evidence in detail. The doctor said: The impact on [the mother] of a visit by [the daughter] to [the father] would be multifactorial. It has already been established that the stress caused by the current legal family dispute is causing personal, social and physical effects on [the mother's] wellbeing. The physical consequences have resulted in two situations requiring transfer to hospital.
The doctor added: She seems to find it difficult to discuss any issues related to [the daughter]. I recently during a consultation mentioned [the daughter's] name and [the mother] was dismissive.
The doctor asserted that a visit by the daughter to the father "would severely impact [the mother's] wellbeing" and "[i]t appears that [the mother's] illness is directly related to ongoing family issues, in particular, [the mother's] unresolved conflicts with [the daughter]."
In a letter dated 15 July 2022 to the respondent's solicitor, the person who I have described in these reasons as the COO of the aged care home said that he has a Diploma of Applied Science (Nursing), a Bachelor of Health Administration and a Master of Public Health degree, together with certain legal qualifications.
The COO described the father's present physical and emotional circumstances, and made the following report concerning his participation in one of the Zoom meetings between the daughter and the father: I supported [the father] to participate in a Zoom call with [the daughter], several months ago. I was present during the call. During the call [the father] neither showed any recognition of his daughter, nor did he respond physically or verbally to the attempts at conversation by [the daughter]. During the Zoom interaction that was undertaken with [the daughter] and [the father] on several occasions during the communication [the father] went to sleep. Throughout the communication [the father] responded very little, either verbally or by facial expression, to the conversation with [the daughter]. [The daughter] repeatedly said words to the effect of "It is your [daughter]." [The daughter] raised the level of her voice and got louder and more emphatic each time she said it. The conversation was one-sided [the father] hardly spoke. I gave him a glass of water during the call and had to wake him up several times. [The father] did not respond to the change in the communication from [the daughter]. I concluded that [the daughter] neither understood, or accepted, her father's condition and function, and her verbal communication with him was both repeatedly persistent and escalatory in its emotional content, and this was exacerbated by the absence of any feedback or acknowledgement from [the father]. Should [the daughter] become upset or agitated in [the father's] presence, it may be that he could react to her emotional state himself then become emotionally agitated and upset without any understanding of the context or cause for that. Since the Zoom call, [the father's] vascular dementia has continued to advance, and more likely than not his ability to respond to her, either via a digital platform, or in person would have further declined since that time. I do not believe that [the father] would either be able to recognise [the daughter], or respond to her in any way. It is possible that if a face-to-face meeting were to occur with [the daughter], and she conducted herself in the same way as she had during the previous Zoom, that he may become upset and agitated. …
In a further letter to the solicitor for the respondents dated 15 July 2022, the COO of the aged care home gave evidence concerning his understanding of the current physical and mental state of the mother.
The COO said that he had observed a change in both the mother's appearance and demeanour in the last six months. He said that the mother's underlying medical conditions and the continued deterioration of her husband's health is contributing to her own health challenges. He suggested that her situation probably flows from a physiological cause and not a psychological one.
Asked to express an opinion as to whether the mother was mentally or physically unable to give evidence on the daughter's application, the COO gave a response that included: … [The mother's] recent physical ill-health and her unstable blood pressure would be significantly negatively impacted upon, in the event she was asked to give evidence in these proceedings. It is evident that [the mother] already is struggling mentally to deal with her experiences and the situation with [the daughter] before these proceedings were brought. The fact that her only daughter has now bought legal proceedings against her and her other children were present a significant challenge for [the mother]. To be asked to appear at the court proceedings may be enough, in and of itself, to cause her enough of an emotional and psychological challenge that it precipitates a significant physiological event". I do not believe, at this time, that [the mother] is sufficiently emotionally and psychologically stable enough to appear in these proceedings either in person or remotely via a digital platform. …
The COO was also asked to comment on the impact on the mother of a visit to the father by the daughter. The COO responded (emphasis in original): I am aware that some of the recent events in relation to [the daughter] may not be entirely known to [the mother]. A couple of months ago I had morning tea with [the mother] in the café at [suburb named] and we spoke about [the daughter]. It was a difficult conversation and it was evident to me that [the mother] struggled to talk about her, and her family's' relationship as it now is with [the daughter]. It was evident to me that [the mother] was both deeply hurt by the behaviour and conduct of [the daughter] over the last few years, and was deeply disappointed that her only daughter, who like her was a registered nurse, had turned out the way that did not conform to all with what [the mother] had hoped for. It was obvious that she was both deeply disappointed and hurt by how that relationship has developed. In view of that conversation, and others that I've had with [the mother], it is my view that a visit by [the daughter] to [the father] would be very emotionally and psychologically challenging for [the mother]. I think it likely that it would have a major negative impact on her personal and her physical well-being and would certainly contribute to further increased social isolation. I have arrived at this conclusion as I have observed, and had reported to me by staff and other relatives, a significant reduction in visiting of [the father] by [the mother]. [The mother] is very seldom seen outside of her apartment and does not visit the café or atrium lounge area as she once did. This current legal matter would I believe be interpreted by [the mother] as both hurtful and a challenge to her role as the matriarch of the family. The family order as [the mother] perceives it should be, is failing. That in itself for her is challenge enough, without the stress and impact that a visit by [the daughter] to her husband [the father] forced upon her by the court will have.
In an affidavit made on 18 July 2022, the Director of Nursing at the aged care home gave evidence about an attempt made by the daughter on 31 May 2022 to visit the father. The witness felt unable to permit the visit. The daughter was unable to provide proof of vaccination. The witness deposed to a conversation that included: Me: "A Zoom call is different to a visit in person. If you can give me a document showing your family is happy for you to visit you can see him." … Me: "I am in a difficult position. I need to see something to confirm you are able to see him."
The witness also provided the following opinion: 11. If [the daughter] were to visit [the father], I do not expect that he would recognise her as he has advanced dementia. He even struggles to recognise his wife [the mother]. 12. It is hard to say whether there would be any benefit to [the father] if [the daughter] were to visit him. Due to the dynamics in the [family] and past feuding, I would be concerned that any visit from [the daughter] would cause [the father] distress. He is prone to becoming agitated when there are loud noises or stressful situations. 13. In my observations, [the father] picks up on any loud noises and stressful situations but is unable to process it, or comprehend the situation. This means that he becomes agitated and there is a physical manifestation of that agitation and internal stress. In the past, this has meant he resists assistance, and he does not want to eat.
One of the brothers gave evidence in an affidavit made on 19 July 2022. The brother confirmed the other evidence concerning the mother's physical and mental condition. In particular, the brother gave the following evidence: 15. On 18 July 2022, I had a telephone call with [the mother] with respect to the notice of motion filed by [the daughter] in words to the following effect: [Brother] said: "Mum, [the daughter's] taken us back to court to gain access to see dad." [Mother] said: "Oh, you're kidding." [Brother] said: "We will continue to maintain your wishes." [The mother] sounded gobsmacked that [the daughter] was making a further application. I then read out an email for her to send to [the solicitor] instructing [the solicitor] about how to respond to the court case. [Brother] said: "Are you happy with that?" [Mother] said: "Yes. I'm too sick to worry or even think about it all at the moment."
The brother also echoed the other evidence concerning the possible effect of a visit by the daughter to the father on the mother. He added his own perception of the historical relationship of the daughter to the other members of the family. The brother finished by saying: 40. I am opposing the Notice of Motion for my parents' benefit, no one else's. I want to protect [the father] and [the mother] from situations that would have a detrimental impact on their already limited quality of life. This is one of those situations.

Some observations on the application

It is something of a tragedy that the daughter's attempt to visit her father in person has led to this impasse and an application for judicial intervention that could never have been the most suitable way to resolve the situation. It is a precept that must attain almost universal acceptance that a parent has a moral right to expect love and support from their children in their final days where it is possible for that to be given, and that a child has both a moral right and duty to give that love and support in person where that can be done.
Given that, on the evidence, the mother rarely visits the father these days, it should have been possible by arrangements with the aged care provider made between the solicitor for the daughter and the solicitor for the respondents to let the daughter see her father in person occasionally, subject to appropriate practical arrangements to ensure that the visits were not unduly burdensome on the father. It appears that the respondents and the aged care provider have taken the view that the authority to determine who has access to the father resided in the mother under the appointment of enduring guardian. In conformity with that view, the aged care provider became subject to a prohibition, made by the mother, of the daughter having access in person to the father. The relaxation of that prohibition was thought to require the approval of the mother. The mother maintains a level of antipathy against the daughter as a result of her long and short-term behaviour that the mother has not overcome sufficiently to permit the daughter to visit her father before he dies. A consequence of the understanding that the entitlement of the daughter to visit her father depends upon the mother's permission is that visits have not been able to be arranged in a way that would avoid the mother suffering stress and disappointment as a result of learning that visits had taken place.
Any access that the daughter is given to her father must take place at the aged care home, which is the property of the aged care provider. The aged care provider has general property rights which include the right to decide which strangers will be permitted to enter the aged care home. In the submissions made on her behalf, it was explicitly accepted by the daughter that no order made by this Court on her application will bind the aged care provider, who has not been made a party to the application.
That has the result that even if this Court were to decide that it has the jurisdiction to make an order directed at allowing the daughter personal access to her father, and that such an order should in principle be made, the Court must also consider whether the making of the order would be futile, as it cannot on this application require the aged care provider to facilitate the daughter's access to the father.

Authority of the mother to control access to the father

During the course of the hearing, it became apparent to the Court that the parties were proceeding upon an unproven premise that one effect of the appointment of enduring guardian was to give the mother a unilateral and unfettered right to decide who had access to the father. That realisation led to an examination of the effect of the appointment of enduring guardian and the enduring power of attorney.
Those issues arose in a collateral way and were not the subject of any claim for relief in the notice of motion. The Court is not called upon to make any final or binding determination of the legal effect of either instrument. The issue has only arisen as a step in the process of determining whether the Court has jurisdiction to make the alternative orders sought by the daughter and whether those orders should be made.
The issue is nonetheless important because, in the practical manner that I have outlined above, the aged care provider appears to have taken the view that the mother has imposed an effective prohibition on the daughter being given access to the father and that that prohibition must be respected unless it is withdrawn or some paramount order is made so that the prohibition is superseded. The legal effect of the appointment of enduring guardian and the enduring power of attorney may therefore have some practical significance to the proper resolution of the present conflict.
It should be noted that clause 4.1(a) of the Resident Agreement, which is set out above at [18], only states that "any decisions as to Your health and financial affairs may be determined by Your enduring attorney or enduring guardian". There is thus a real question as to whether decisions as to access, divorced from genuine health considerations, are to be made by the mother as the enduring guardian or the mother and the brothers as the enduring attorneys.
It is clear from clause 5 of the appointment of enduring guardian that the mother has authority to decide where the father shall live and what health care the father should receive and to decide what other kinds of personal services he receives. There is an issue as to whether that authority extends to prescribing the circumstances in which other people will be entitled to have access to the father either generally or as an adjunct to procedures intended to maintain the father's health.
As this issue has given rise to unexpected complications, I will begin by summarising my conclusions. 1. First, the father could have included in the appointment of enduring guardian and authority to determine who could have access to him, but he did not do so. 2. Secondly, the authorities that were given to the mother by the appointment of enduring guardian do not extend to prohibiting the aged care provider from permitting any person to have access in person to the father. 3. Thirdly, even though the mother has the authority to decide what health care the father should receive, that authority probably does not extend to prescribing the circumstances in which the aged care provider allows access to the father. 4. Fourthly, in the absence of the requisite authority in the appointment of enduring guardian, that authority is not supplied by the enduring power of attorney. 5. Fifthly, the decision as to whether and if so in what circumstances the daughter should be given access in person to the father falls within the authority of the aged care provider under the Resident Agreement. The obligations of the aged care provider to the father under this agreement may be complex and do not arise for determination on this application. 6. Finally, as the father did not give the mother authority to determine who had access to him, that authority could only be vested in the mother or some other suitable person by order made by the Tribunal under s 16 of the Guardianship Act 1987 (NSW).
I will now briefly set out my reasons for reaching these conclusions.
Part 2 of the Guardianship Act governs the appointment of enduring guardians. Section 6 of the Guardianship Act provides that a person of or above the age of 18 years may, by instrument in writing, appoint a person as his or her guardian. A person so appointed is appointed as an enduring guardian: Guardianship Act, s 6A(2). The person appointing the enduring guardian is termed the 'appointor' and the enduring guardian is termed the 'appointee': Guardianship Act, s 5.
Sections 6E and 6F of the Guardianship Act explain the functions of enduring guardians. For relevant purposes, those sections provide: 6E Functions of enduring guardians (1) Subject to subsection (2), an instrument appointing a person as an enduring guardian authorises the appointee, while the appointment has effect, to exercise the following functions - (a) deciding the place (such as a specific nursing home, or the appointor's own home) in which the appointor is to live, (b) deciding the health care that the appointor is to receive, (c) deciding the other kinds of personal services that the appointor is to receive, (d) giving consent under Part 5 to the carrying out of medical or dental treatment on the appointor, (e) any other function relating to the appointor's person that is specified in the instrument. (2) The instrument of appointment may limit or exclude the authority it confers in relation to any one or more of the functions specified in subsection (1). … 6F Ancillary powers of enduring guardian An enduring guardian may, on behalf of the appointor, sign and do all such things as are necessary to give effect to any function of the enduring guardian.
Clause 5 of the appointment of enduring guardian gives the authority to the mother that is set out in s 6E(1)(a)-(d) of the Guardianship Act. It does not authorise any other function as is permitted by s 6E(1)(e). There are no exclusions from the authority given as is permitted by s 6E(2).
The plain meaning of the text of ss 6E and 6F of the Guardianship Act leads to the conclusion that these sections are exclusive as to the functions, and therefore the authority, of the enduring guardian in respect of the appointor. An enduring guardian has no power in respect of the appointor by virtue of the Guardianship Act unless authorised by those sections.
There is some utility in considering briefly the equivalent statutory provisions in the other States and Territories given the respondents' submission that a strict or narrow interpretation of the authority given by the father to the mother in the appointment of enduring guardian will leave a gap or lacuna in the mother's capacity to act as the father's guardian.
The statutes in respect of enduring guardianship and like arrangements of other States and Territories frame the functions of enduring guardians in a different manner to that of the Guardianship Act of this State. For example, the Guardianship and Administration Act 2000 (Qld) operates by classifying 'matters' of an appointor's life into categories of 'personal matters', 'special personal matters', 'special health matters', and 'financial matters': Guardianship and Administration Act 2000 (Qld), s 10. Section 33(1) of that Act, for example, then authorises the guardian to do, in accordance with the terms of the guardian's appointment, anything in relation to a personal matter that the adult could have done if the adult had capacity for the matter when the power is exercised. The Act then defines 'personal matter' in Sch 2, cl 2: A personal matter, for an adult, is a matter, other than a special personal matter or special health matter, relating to the adult's care, including the adult's health care, or welfare, including, for example, a matter relating to 1 or more of the following - … (l) who may have access visits to, or other contact with, the adult; …
The Northern Territory legislation, the Guardianship of Adults Act 2016 (NT), and the Victorian legislation, the Guardianship and Administration Act 2019 (Vic), use a similar scheme. The Northern Territory legislation includes as an example of its statutory concept of 'personal matters', "[r]elationships with other people, including decisions about who may or may not visit [the appointor]": Guardianship of Adults Act 2016 (NT), s 3, and see also s 21. The Victorian legislation includes as an example of its statutory concept of 'personal matters', "other persons with whom [the appointor] associates": Guardianship and Administration Act 2019 (Vic), s 3(1), and see also s 38(1)(a).
The Western Australian legislation, the Guardianship and Administration Act 1990 (WA), also uses the language of association. Under that Act, a 'plenary guardian' is given all the functions in respect of the appointor as would have a person in whose favour certain parenting orders have been made under that State's Family Court Act 1997 (WA), except to chastise or punish: Guardianship and Administration Act 1990 (WA), s 45(1). Section 45(2) then provides: (2) Without limiting subsection (1), a plenary guardian may do any of the following - … (f) decide with whom the represented person is to associate; …
The Tasmanian legislation, the Guardianship and Administration Act 1995 (Tas), achieves an apparently similar outcome in a more direct way. Section 25 of that Act relevantly provides: (1) A guardianship order appointing a full guardian confers on the full guardian in respect of the represented person all the powers and duties which the full guardian would have in Tasmania if he or she was a parent and the represented person his or her child. (2) Without limiting subsection (1), an order appointing a full guardian confers on the person named as full guardian the power - … (d) to restrict visits to a represented person to such extent as may be necessary in his or her best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person; …
The manner in which the Australian Capital Territory legislation, the Guardianship and Management of Property Act 1991 (ACT), grants functions to guardians involves the ACT Civil and Administrative Tribunal appointing the guardian with the powers that the ACAT is satisfied are necessary or desirable to make decisions for the person in accordance with the decision-making principles: Guardianship and Management of Property Act 1991 (ACT), s 7(2). That Act provides examples of such powers in s 7(3), which, like the New South Wales Act, do not include an express reference to association or visitation of the appointor. Section 7B of that Act provides the limits on the powers that the ACAT can grant a guardian, none of which point directly to those matters either.
I have undertaken this survey of other legislative schemes to highlight the apparent silence of the New South Wales Act on the subject of association and visitation of the appointor in the granting of functions to the enduring guardian. That silence seems to have the effect that it is up to the appointor to decide whether or not to authorise the appointee to determine who may have access to the appointor by exercising the right created by s 6E(1)(e) of the Guardianship Act to include any other function relating to the appointor's person that is specified in the instrument, being relevantly in this case the authority to control access to the appointor.
In relation to the authority granted to the mother by clause 5(b) of the appointment of enduring guardian to decide what health care the father receives, which is apposite to the function granted by s 6E(1)(b) of the Guardianship Act, the respondents submitted that a necessary incident of deciding what health care should be received by the father is deciding who should have access to the father, at least if there is concern that such access may affect the father's health. The respondents submitted that the guardian's decisions about the health care to be provided may be frustrated if extraneous circumstances (for example, visitors and care conditions) would otherwise impact on the efficacy of those decisions. Further, the respondents submitted in relation to the authority granted to the mother by clause 5(a) of the appointment of enduring guardian to decide where the father lives, which is apposite to the function granted by s 6E(1)(a) of the Guardianship Act, that authority not only authorises the guardian to select the aged care home in which the father lives, but also the terms of the agreement with the aged care provider, which would include rights regulating access.
The respondents submitted that in the present case, the mother would not need to form a view, before any particular visit, as to whether the proposed visitor would, more likely than not, inadvertently do something to discomfort or upset the father. For present purposes, they submitted, it suffices that there is a real possibility of that occurring, having regard to past events when the daughter has visited in person. The past events referred to in this submission were the occasions when the daughter became upset when she was refused access to her father, and when she raised her voice to try to communicate with the father during the Zoom meeting that has been referred to above.
I am prepared to accept that the authorities granted by an appointment of enduring guardian should be given a generous construction, having regard to the subject matter of the authority and to make the exercise of the authority as efficacious as possible.
However, there will always be a question of whether in fact the exercise of the grant of authority falls sufficiently within the authority actually granted for the exercise to be accepted as being valid. While proper exercise of the authority should be effective and the appointee should largely be left to decide the circumstances in which the authority should be exercised, it is necessary to remember that the authority involves the exercise of a personal right of the appointor, and it must be assumed that the appointor has made a careful determination of how the personal rights of the appointor should be exercised during times when the appointor is incapable of managing the appointor's person.
I do not accept the respondents' submission that upon the proper construction of clause 5 of the appointment of enduring guardian or s 6E of the Guardianship Act, either on their own terms or with the aid of the ancillary power in s 6F of the Guardianship Act, impliedly authorises the mother to decide who has access to the father or on what terms that access should take place. The authority to decide where a person lives does not naturally extend to who has access to that person at the place of residence. Nor does the right to decide what health care a person should receive extend to deciding when a particular person should be refused access to that person because of some concern that the person may be alarmed or discomfited. I have been assisted in reaching these conclusions by my reading of N O'Neill and C Peisah, Capacity and the Law (2011, Sydney University Press) (O'Neill and Peisah), which contains a review of the limited legal sources that are available relevant to this issue. In particular the authors discuss at [7.5.2], [7.5.3] and [7.5.6] the separate considerations that have been thought to arise in respect of the authorisation of a guardian to control the subject person's accommodation, health care and access to that person respectively. It will be helpful to extract the observations made by the authors on the subject of access at [7.5.6] (footnotes omitted): 7. 5. 6. Access Although it may have been borrowed from family law, it is accepted that making decisions as to who should have access to a person under guardianship and under what terms and conditions is a function or power that a guardian of an adult may need to exercise under a plenary guardianship order or may be given to a guardian in a limited guardianship order. Following principles developed in family law, the function or power must be exercised in the best interests of the person under guardianship and not as a right of others, including the parents of a person with a whole of life intellectual disability. In Queensland, access has been held to be a "personal matter" for the purposes of the Guardianship and Administration Act 2000 (Qld). In a 1984 case, Powell J of the Supreme Court of New South Wales relied on precedents going back to the 18th century dealing with court ordered access to an incapable person to appoint the Protective Commissioner as the committee of both the estate and person of a young woman who had a severe intellectual disability and to make access orders which gave the Protective Commissioner a small role in approving the necessary arrangements. In a 2006 case, WACAT appointed a guardian to deal with access and contact issues rather than leave dealing with these matters in the hands of the person's service providers. WACAT reappointed the Public Advocate as limited guardian for LA, a 29 year old woman with physical and intellectual disabilities. The Tribunal noted that LA was settled in her accommodation placement and received an excellent level of care but that there was no one available and appropriate from her family to decide personal matters on her behalf. The Tribunal considered that, in the particular circumstances of that case, it was not in LA's best interests that decisions about personal matters be made by the service providers or by her paid carer and that it was appropriate that an independent guardian with the formal authority to decide matters in relation to her person be reappointed, namely the Public Advocate. In that case a request had been made by LA's mother for LA to have contact with her sister who was currently in prison and with family members in a remote community. The Tribunal noted that family contact and visits to her community were critical to the maintenance of LA's family and cultural relationships and continued: The decisions which may be made in relation to contact are complex as they may include balancing the needs of the represented person for contact with her family, her cultural needs, the maintenance of her relationships, her wishes and the need to limit the restriction on her rights with the need to ensure the proper protection of her health and safety. Exercising this judgment goes beyond the role and proper authority of a paid carer or service provider. Decisions to allow or restrict contact the represented person has with others should be made by a guardian with formal authority having regard to the sometimes competing considerations in [section 51 of the Guardianship and Administration Act 1990 (WA)] which elaborates on the way in which a guardian acts in the best interests of [the person under guardianship]. The issue of facilitating access is also relevant to older people under guardianship. Older people with a disability, particularly those with dementia, are sometimes sequestered at home by those caring for them. This may occur as a result of family conflict, particularly when one family member who is living with the older person limits access to the older person, often to the older person's detriment. In such cases it may be useful to give an access function or power to a guardian in order to facilitate contact with friends or family members. Sometimes access functions are needed so that the guardian and those providing accommodation services to the person under guardianship can work out a roster or other arrangements to allow a range of visitors, who would otherwise clash with one another, to visit the person under guardianship. An access function may also be necessary where an elderly person with dementia is vulnerable to the influence of their spouse, other family members or significant others who, themselves, may have cognitive defects caused by dementia or other health problems. Sometimes access functions are needed to allow the guardian to stop another person having access to the person under their guardianship because that other person has indicated that they intend to remove the person under guardianship from their current accommodation against their best interests and contrary to the accommodation decision made by the guardian.
The manifestation of the possibility that the appointment of enduring guardian may not authorise the mother to impose a general prohibition on the daughter having personal access to the father led the respondents to make an alternative submission that the power to determine who has access to the father is vested in the mother as one of the attorneys of the father under the enduring power of attorney.
As noted above at [13], the enduring power of attorney granted by the father on 8 May 2017 authorised the mother, as one of the three joint and several attorneys, to "exercise the authority conferred by Part 2 of the Powers of Attorney Act 2003 to do anything on my behalf I may lawfully authorise an attorney to do." Relevantly, s 9 of the Powers of Attorney Act 2003 (NSW) provides: 9 Powers conferred by prescribed power of attorney (1) Subject to this Act, a prescribed power of attorney confers on the attorney the authority to do on behalf of the principal anything that the principal may lawfully authorise an attorney to do. (2) A prescribed power of attorney has effect subject to compliance with any conditions or limitations specified in the instrument creating the power.
The wording of s 9 of the Powers of Attorney Act and clause 2 of the enduring power of attorney begs the question of what the appointor may lawfully authorise an attorney to do.
But the wording of clause 2 of the enduring power of attorney must be construed in that context of the whole instrument, which includes the preamble extracted above at [14] which includes an express statement that an attorney under an enduring power of attorney cannot make decisions about the father's lifestyle or health. Decisions on those issues can only be made by a guardian, whether appointed by the father or the Tribunal. The Court cannot construe the enduring power of attorney as vesting authority in the mother and the brothers when that authority is expressly excluded by its wording.
In any event, the better view is that at common law a principal may not confer on an attorney, under a power of attorney, authority to bind the principal in the determination of such a personal matter as who may have access to the principal or the terms upon which access may be had. As was observed in B Collier and S Lindsay, Powers of Attorney in Australia and New Zealand (1992, Federation Press) at 42 (footnotes omitted): It is entirely unclear to what extent and attorney can be authorised to make decisions about the personal life of his donor, rather than his property or business dealings. … The problem of to what extent an attorney can make "lifestyle" decisions on behalf of his donor is unlikely to have arisen before the introduction of statutory enduring powers, as a donor who did not contemplate future incapacity would be unlikely to grant authority to an attorney to make them, and even if he or she did grant such authority, would presumably continue to make such decisions until incapacitated, and at common law mental incapacity revoked the power. However, the distinguishing feature of an enduring power of attorney is that it survives the incapacity of the donor. In several jurisdictions, legislation now clarifies whether an attorney can make personal decisions on behalf of the donor. …
In G E Dal Pont, Powers of Attorney (3rd ed, 2020, LexisNexis Butterworths), the learned author says at [1.23] (footnotes omitted): [1.23] The general law further restricts the potential authority of an attorney, despite the terms of the power, by restricting the extent to which principals can delegate authority to others in respect of matters personal to the principal. Statute has intervened in this regard; it recognises the ability of a principle to delegate aspects of personal decision making - for instance, relating to health or medical treatment - but generally sets parameters to the scope of delegation. The upshot is that, whether at general law or under statute, there is arguably no true 'general', unbounded, power of attorney.
The learned author further observed at [5.26] (footnotes omitted): [5.26] Whereas the general law has found little difficulty in recognising a person's right to delegate financial, business or transactional tasks to an attorney, it has shown less enthusiasm in giving effect to a delegation of decision making over what could be described as 'personal' or 'health' matters. These are, the law expects, domains over which a person should exercise their own discretion rather than delegating decision making to a third party. However, acknowledging a need for persons to be able to make provision for decisions relating to their personal and health wellbeing in advance of any later mental incapacity, statute supplies a vehicle to achieve this outcome in place of the appointment of a guardian by a court or tribunal.
Dal Pont relied upon the extract from Collier and Lindsay set out above for these propositions.
In G A Schindler and S E Sherry, Aldridge: Powers of Attorney (11th ed, 2016, Sweet & Maxwell), the learned the editors appear to reach a similar conclusion at [1-01], [1-18] and [2-05].
These considerations do not have the result that there is a lacuna in the authority of an appropriate guardian of the father to make decisions about access to him. The Tribunal has power under s 14 of the Guardianship Act to appoint the mother or some other appropriate person as the father's guardian, and s 16(1)(c) provides that the guardianship order may be expressed to be plenary or limited, and in the latter case may specify the functions conferred on the guardian.
The result is that, as matters stand, the issue of whether the daughter should be given access in person to the father is a matter to be decided by the aged care provider under the Resident Agreement and any provisions of the general law that may be applicable.

Factual findings

On the evidence tendered on this application, the daughter's claim should be determined on the basis of the following findings of fact. 1. The daughter has a genuine and intense desire to see her father in person at least once before he dies, and, if possible, on as many reasonably spaced occasions as the remaining number of his days permits. 2. It will cause the daughter significant grief if she is refused the right to see her father while he still lives, to hold his hand and hug him and tell him in person that she loves him, and to make whatever peace with him that she can, even if the reality is that the father's present circumstances almost totally impair the father's capacity to understand or respond in any meaningful way. 3. The evidence on the present application did not venture in any detail at all into the issue of the daughter's physical and psychological disabilities. It will be remembered that extracts from the respondents' solicitor's 20 October 2020 letter, which are set out above at [57] and [58], convey some information concerning the mother's understanding of the daughter's circumstances. The evidence in the earlier proceedings satisfied the Court that a financial management order ought to be made in respect of the daughter's estate. 4. The evidence justifies a conclusion that there is an enhanced risk that, as compared with the capacity for self-restraint of persons generally with ordinary emotional stability, the daughter will find it difficult to control her emotions when faced with the reality of the father's present circumstances during a visit in person. However, I do not accept that that risk is excessive or that it cannot be ameliorated by appropriate arrangements to ensure that any visit is properly supervised and can be terminated, if that course is warranted. 5. I have recorded that the daughter has offered an undertaking to the Court that she will conduct herself lovingly and respectfully with her father and will in no way upset the staff at the aged care home. 6. I do not accept that the evidence, such as it is, of the daughter's responses to being denied personal access to her father when she made impromptu attempts to do so demonstrate that there is any unacceptable risk that the daughter will misbehave during any personal access to her father, particularly if the daughter is appropriately supported during the visit. It is perfectly natural for a daughter to become emotionally upset when denied personal access to her dying father, and I do not accept that this relatively inconsequential conduct proves that the daughter will not behave properly during a visit with her father. Furthermore, I do not accept that the evidence of the daughter's conduct during the Zoom meeting demonstrates an unacceptable proclivity to become emotional or behave improperly. The thought of what is involved in a psychologically challenged daughter trying to conduct a Zoom meeting with an unresponsive father who may be near death is more than a little bizarre. One aspect of the Zoom meeting is that the daughter could only attempt to communicate orally, so it may be understood why, in attempting to do so, she may have raised her voice in an inappropriate way. 7. The evidence does not support a conclusion that a meeting between the daughter and the father will per se be damaging to the father's health. That follows from the fact that Zoom meetings were permitted. The only question can be whether it will make a difference if the meeting is in person. Given that one of the strongest lines of the respondents' argument was that the father is likely to be unresponsive during the meeting, it should follow that the personal presence of the daughter will have no ill effect on the father's health. The only issue can be whether the father may suffer as a result of inappropriate conduct on the part of the daughter, and whether the circumstances in which the meeting in person takes place will not permit that risk to be managed satisfactorily. 8. On the evidence, the father is not yet moribund and insensate. The mother has decided that the father's future should be managed conservatively, and he should not be transferred to palliative care. I have outlined the evidence above that the father occasionally makes limited responses to stimuli. In fact, the evidence is entirely incomplete concerning the real capacity of the father, notwithstanding that he is in extremis, to appreciate stimuli such as a hug, or his hand being held, or the presence of a daughter. 9. The evidence does not support a finding that the mother has decided to prohibit the daughter having access to her father in order to preserve the father's health. The best explanation of the mother's reasons is as set out above at [57] and [58], in the extracts from the solicitor's 20 October. 2020 letter. 10. I accept that, even though the evidence does not show that the reason why the mother will permit the daughter having a Zoom meeting with the father but has prohibited her having a visit in person is that there is a real risk that a personal meeting will be injurious to his health, it is possible in fact that, if the daughter did not conduct herself properly, that could cause the father to suffer discomfort and alarm. That is a relevant circumstance to the consideration of the basis upon which the daughter might be permitted to visit the father in person.

Relevant legal principles

As I have recorded above, the daughter has put her claim for orders that will facilitate her having access to her father in person on the basis of the Court's parens patriae jurisdiction. Because of the obvious need for these reasons to be completed promptly, I have not had an opportunity to give proper consideration to the intersection of the parens patriae jurisdiction and the general inherent protective jurisdiction of the Supreme Court.
I cannot do better in the circumstances than to repeat part of the extract from the comprehensive judgment of Lindsay J in Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 that I set out in my judgment in Re Anita (No 3) [2016] NSWSC 1959 at [46], in which his Honour explained the process of convergence of the different historical strands in the Court's protective jurisdiction, which has preserved the Court's inherent jurisdiction in order to deal with unforeseen or extraordinary problems. As was the case in my earlier judgment, I have respectfully edited his Honour's comprehensive explanation of the protective jurisdiction by omitting the commentary that is more relevant to the making of protected estate management orders. Lindsay J said: [17] The various orders made by the Court and NCAT, with the important incidental involvement of the NSW Trustee, demonstrate the integrated character of present procedures for performance of the protective functions of the State (historically, the Crown) through different arms of government. [18] An appreciation of how, and why, the protective jurisdiction of the Court operates as it does (in conjunction with statutory tribunals and agencies of executive government) is assisted by an understanding of the character of the Court's jurisdiction and the historical antecedents of that jurisdiction. [19] The jurisdiction conferred upon the Court by the NSW Trustee and Guardian Act, and that conferred on NCAT by the Guardianship Act 1987, are modelled upon, or at least analogous to, the Court's inherent jurisdiction. The jurisprudence of the Court, for its part, has been enriched by observance of, and engagement with, specialised decision-makers wrestling with the sometimes intractable, inter-disciplinary problems found, in search of principled, workable solutions, in the protective jurisdiction. [20] The protective jurisdiction of the Court, both inherent and statutory, exists for the protection of an individual in need of protection because of an incapacity for self-management. [21] Historically, the "inherent" protective jurisdiction of the Court (as it is routinely called) is grounded upon section 9 of the "New South Wales Act" of 1823, 4 Geo IV chapter 96 (Imp), and clause 18 of the Third Charter of Justice (Letters Patent of 13 October 1823 issued pursuant to the New South Wales Act), the operation of which has been preserved, inter alia, by: (a) the Australian Courts Act 1828 (Imp), 9 Geo IV chapter 83, which prescribed the date for reception of English law in New South Wales; and (b) section 22 of the Supreme Court Act 1970 NSW. [22] Since the commencement of the Supreme Court Act 1970, section 23 of that Act (which provides that the Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales") has also been seen as a general source of "inherent" jurisdiction: Re Q (Young J, 29 May 1985, unreported), extracted in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [75]-[77]; Re C [2012] NSWSC 1097 at [64]-[65]; IR v AR [2015] NSWSC 1187 at [102]; Fountain v Alexander (1982) 150 CLR 615 at 633. Strictly, the section is an independent grant of power: Re W and L [2014] NSWSC 1106 at [79]-[82]. [23] There is a subtle, but potentially important shift in use of the word "inherent" here which recognises the existence of jurisdiction in the Court untrammelled by perceptions of historical constraints of 19th century English practice and procedure: Sutton v Warringah Shire Council (1985) 4 NSWLR 124 at 131G-132C. [24] That this was an intended consequence of SCA section 23 can be inferred from the antecedents of the section, opaque as they are on the face of the Reports of the NSW Law Reform Commission and parliamentary debates leading to enactment of the section. … [27] The current "inherent" jurisdiction of the Court is thus informed by English legal history associated with establishment of the Court by reference to English institutions, and the formal reception of English law in NSW, in the 1820s; but it is not constrained by the procedural norms and jurisdictional demarcations that characterised the fragmented English court system of that time. … [29] In Secretary, Dept of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258-259 the High Court of Australia grounded "parens patriae jurisdiction" (of the type exercised by this Court as "protective jurisdiction") in the following extract from the judgment of Lord Eldon LC in Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243: "[The jurisdiction] belongs to the King [the Crown], as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them". … [33] The protective jurisdiction of the Court extends to the making of orders for protection of "the person" (that is, the body) and "the estate" (that is, property) of the person in need of protection. … [39] The Court's inherent jurisdiction is generally preserved in order to deal with unforeseen or extraordinary problems (Re Eve [1986] 2 SCR 388at 411; 31 DLR (4th) 1 at 17; Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40]; Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608), and as a means of aiding statutory decision-makers in due performance of their functions (P v NSW Trustee and Guardian [2015] NSWSC 579 at [116]). … [48] The Court's inherent jurisdiction exists to do what is for the benefit of a person incapable of managing his or her own affairs. Its limits (or scope) have not been, and cannot be, defined save by reference to the purpose governing an exercise of the jurisdiction: Marion's Case (1992) 175 CLR 218 at 258; Re Eve [1986] 2 SCR 388 at 413-414 and 427; 31 DLR (4th) 1 at 19 and 29). [49] This purposive approach to an exercise of protective jurisdiction requires that close attention be given to the personal circumstances of each individual whose capacity for self-management comes under scrutiny. Whatever its historical origins, or the present form of administrative machinery aiding its operation, the protective jurisdiction of the Court is plenary and seamless. It is unconstrained by procedural categories that attended the English Lord Chancellor's exercise of similar jurisdiction over lunatics and children in the 1820s. Nevertheless, according to its purpose, it is conditioned upon an examination of the particular circumstances of each person subject to it, paying due regard to the legal significance of a person's attainment of majority.
As I have earlier said in Re Anita (No 3) concerning the nature and ambit of the Court's parens patriae jurisdiction: [43] Recently, in Re Application of Local Health District; Patient Fay [2016] NSWSC 624, Sackar J described the court's parens patriae jurisdiction in the following terms: [21] It is appropriate that I observe that the parens patriae jurisdiction is ancient, wide-ranging and far-reaching. It extends as far as necessary for the protection of children and those persons who from their legal disability cannot look after themselves and are in need of protection: Marion's Case (1992) 175 CLR 218 258-9 (Mason CJ, Dawson, Toohey and Gaudron JJ) 278-80 (Brennan J). The jurisdiction requires and obliges the Court to act in the manner of a wise, affectionate and careful parent for the welfare of the person: R v Gyngall (1893) 2 QB 232 at 241 (Lord Esher MR); Marion's Case at 280 (Brennan J). [22] The jurisdiction's focus is essentially protective in nature. In exercising the jurisdiction the Court's concern is predominantly the welfare of the person involved: Re Frances and Benny [2005] NSWSC 1207 at [17] per Young CJ in Eq [23] The jurisdiction is not encumbered with technicalities. No jurisdictional limits have been described and, subject to the requisite nexus to the child or incapable person, it is seemingly unlimited. The situations in which the jurisdictions can be invoked are myriad. Whilst broad, it is generally to be exercised only in exceptional cases and with considerable caution. In the case of an adult, this caution is especially important because care should always be taken to ensure that there is no interference unlawfully in the free will of a capable individual.
Fagan J in Chapman v South Eastern Sydney Local Health District (2018) 98 NSWLR 208; [2018] NSWSC 1231 (Chapman) added: The court's parens patriae jurisdiction [22] The origins and history of the parens patriae jurisdiction were traced by the Supreme Court of Canada in Re Eve (1986) 31 DLR (4th) 1 at 13-22. The way in which the jurisdiction devolved to this court was explained by O'Keefe J in MAW v Western Sydney Area Health Service (2000) 49 NSWLR 231; [2000] NSWSC 358. Essentially it is a jurisdiction to make orders for the care, protection and benefit of subjects who lack legal capacity to make decisions in their own interests, including persons of unsound mind and children. In Re Eve at 27-29 La Forest J, speaking for the Supreme Court of Canada, cited ample authority for the proposition that the jurisdiction is at large and undefined. It is open to exercise in new situations where it has not previously been invoked. [23] La Forest J said (at 19) the limits of the parens patriae jurisdiction are fixed not by a closed category of instances but by "its informing principles" which were identified as follows. First, the jurisdiction is (at 28): "founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the 'best interest' of the protected person, or again, for his or her 'benefit' or 'welfare'." [24] Secondly, the jurisdiction may be exercised in anticipation (at 28): "[A] court may act not only on the ground that injury to person or property has occurred, but also on the ground that such injury is apprehended." [25] Thirdly, the parens patriae jurisdiction may only be exercised for the benefit of the incapable person and not in the interests of another party (at 29): "Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised … . The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be redoubled as the seriousness of the matter increases. This is particularly so in cases where a court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual."
In Chapman, Fagan J held that the Court could not make an order in exercise of the parens patriae jurisdiction authorising the removal of sperm from an unconscious patient who had died by the time the order was required to be made because the jurisdiction could only be exercised for the benefit and well-being of the person upon whom the procedure was to be performed. The application for the order was made by the wife of the patient who wanted to conceive a child with his sperm. The interests of any child that might be conceived as a result of the extraction procedure were irrelevant. So were the interests of the wife. His Honour said: [37] In my view the authorities show that this court's parens patriae jurisdiction cannot be exercised to approve a surgical procedure for extraction of sperm from an unconscious and moribund patient. Such an operation could not be for his benefit, welfare or protection in any sense. In such a case there may be, as here, evidence that the relationship between the patient and his spouse was strong. That evidence may support an inference that, if the patient should have recovered consciousness, he would have been gratified to know that the procedure had been performed and that his spouse would potentially be able to conceive his children. But the situation under consideration is one in which the patient would not recover consciousness and such gratification would never be experienced. In a case such as this the patient is beyond being benefited in any sense, physical or emotional, by the extraction of his sperm. The procedure could only be for the benefit of another party, the surviving spouse. Firmly established principles are against the court authorising an invasive procedure for the sole purpose of benefiting another.
The respondents relied upon this passage as authority for the proposition that the Court could not make the orders sought by the daughter based upon her interest in being able to visit her dying father in person. The daughter responded by submitting that it also supports the Court declining to uphold the mother's decision to prohibit the daughter visiting her father insofar as that decision was based on the mother's personal attitude and antipathy to the daughter. However, the obvious point of distinction between the present case and Chapman is that the father remains alive, although in a much-diminished state, and may have his own interests in meeting and being comforted by his daughter in his remaining time.
In The Hospital v S (a minor) [2019] NSWSC 642, I made declarations to the effect that the plaintiff may lawfully discontinue all life-sustaining treatment and medical support measures designed to keep the child who was the first defendant alive in his current state. I said: [21] The Hospital, represented by a substantial number of highly qualified medical professionals, who have been providing various forms of medical treatment to S since the date of his accident, and who have made every attempt to achieve the best medical outcome possible, have reached a firm consensus that S has no conscious awareness at all; that it is most unlikely that he will ever achieve any awareness; that his injuries are terminal without artificial, mechanical life-sustaining treatment; and that all further treatment will be futile. Furthermore, although there is division of medical opinion about whether S is capable of perceiving any pain or discomfort, some doctors believe that the repeated physical treatment and manipulation of S that is necessary to prolong his life does cause him some pain and discomfort, which he may be capable of feeling. There is a medical consensus that the prolongation of S's life is inconsistent with his personal dignity, and that the further continuation of the life-sustaining treatment that is being given to S would be medically unethical.
I refer to this decision in order to illustrate the proposition that the exercise of the Court's protective jurisdiction is not circumscribed in any way by the capacity of the person in need of protection having the sentience necessary to understand and appreciate the benefit of the order. The Court may protect the person to his or her very last breath even if the only real consequence of the order is to preserve the person's right to dignity in death.

Consideration

If I had reached the conclusion that the appointment of enduring guardian had authorised the mother to issue to the aged care provider the prohibition of the daughter having any visit with the father in person that she has apparently issued, I would have considered that the Court's parens patriae jurisdiction empowered the Court to make an order countermanding that prohibition on appropriate conditions concerning the circumstances in which the daughter would be permitted to make personal visits to her father in the aged care home. The order would have been made in the father's interest in having an opportunity to spend time with his daughter before he dies. That, in my view, is of sufficient value, even to a father in extremis as the evidence shows the father in this case is. Even the small comforts that may still be available to a person in the position of the father have sufficient value to call for the Court's protection.
It follows that I would not have accepted the respondents' argument that it would not be in the interests of the father for the Court to make orders that facilitated a visit in person by the daughter because the father's state of consciousness is not sufficient for him to appreciate in a truly sentient way the possible benefits of the visit.
I hope the stage has not been reached where it is required of a Supreme Court judge to express solemn reasons why a Zoom meeting between a daughter and a father in the state of consciousness of the father in this case is an absolutely inadequate replacement for a visit in person by the daughter to the father.
Had I concluded that orders should be made against the mother to facilitate visits in person by the daughter to the father, I would have formulated those orders, in principle, but would not have made final orders until the aged care provider had been given an opportunity to consider the proposed orders and to make any representations to the Court that were thought by the aged care provider to be appropriate concerning any possible unsatisfactory consequences of the orders.
In formulating the orders, I would have had regard to the following general principles as stated in s 4 of the Guardianship Act: 4 General principles 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, … (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, … (h) the community should be encouraged to apply and promote these principles.
I would also have had regard to the considerations concerning the maintenance of family access to older people with a disability contained in the extract from O'Neill and Peisah that is set out above.
However, for the reasons given above, I have found that the appointment of enduring guardian in this case did not vest authority in the mother to regulate access to the father.
A consequence of my conclusion that the appointment of enduring guardian did not authorise the mother to control access to the father is that any prohibition that she has conveyed to the aged care provider was outside her authority and does not bind the aged care provider. The Court cannot sensibly order that the respondents be restrained from precluding access by the daughter to the father, or alternatively direct the mother to provide written consent for the daughter to visit the father at the aged care home, if none of the respondents have any authority to control access to the father.
As it has happened, the decision whether or not the daughter's request to visit her father in person should be approved is a matter to be decided by the aged care provider. There may be legal constraints on the basis upon which the aged care provider should exercise its right to approve or deny the daughter's request, but that is not a matter that should be addressed in the absence of the aged care provider.
I note that Schedule 11 of the Resident Agreement contains what is called a "Charter Care of Recipient's Rights and Responsibilities - Residential Care". Some of those rights may be relevant to how the aged care provider should respond to a request by the daughter to be permitted to visit her father in person.
The aged care provider would be entitled to canvass the opinions of the father's family members, which would include the daughter.
There could be no legal impediment to the respondents expressing opinions to the aged care provider to persuade it not to approve the daughter's request, or to do so on particular conditions. The Court could not properly in the exercise of its parens patriae jurisdiction deny the respondents' right to express their own opinions on a family matter concerning the welfare of the father.
The only course that is now available to the Court is to publish these reasons to the parties without making any orders at this stage. The parties have leave to relist the notice of motion for a further directions hearing by arrangement with my Associate, or alternatively they may agree to provide supplementary written submissions to my Associate. That must be done very promptly.
I would respectfully recommend that these reasons be brought to the attention of the aged care provider and its views solicited as to how it would react to a request by the daughter for permission to visit her father in person, given my finding that it is not bound by any prohibition of the daughter's access to the father that has been issued by the mother. I would hear representations from the aged care provider if, of its own volition, it wished to involve itself in the application.
It follows from my consideration of the Court's parens patriae jurisdiction that it would be within the Court's power to make an appropriate order against the aged care provider, but that is plainly not an issue that should be considered in the absence of the aged care provider.
In due course, it will be necessary for me to receive submissions on the issue of costs, but that is a question that must abide the final practical outcome of the application.

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: 27 July 2022

Aged Care Act 1997(NSW)

Trustee and Guardian Act 2009(NSW)

Powers of Attorney Regulation 2016(NSW)

State's Family Court Act 1997(WA)

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