ELQ v Public Guardian

Background to the decision

1. 'L' is a young man with a lifelong diagnosis of autism and intellectual disability. 'L' is reported to present with challenging behaviours and in recent years has lived in supported accommodation for which he receives funding support through the National Disability Insurance Scheme (NDIS).
2. Prior to living in supported accommodation 'L' lived with his family. At various stages during his childhood 'L' was placed in voluntary out of home care (VOOHC) due to the impact of family conflict leading to the separation and eventual divorce of ELQ and DMO. At different times 'L' lived with his mother DMO, and later with his father ELQ on the Central Coast. Both parents utilised VOOHC at various times during 'L's childhood and adolescent years.
3. In 2013 ELQ, who at that time had care if 'L', relinquished care of 'L' to the then Department of Ageing Disability and Home Care (ADHC). This decision was made based on 'L's escalating challenging behaviours which could no longer be adequately managed in the home.
4. In 2013 when he was about to turn 18, the then Guardianship Tribunal received an application for Financial Management concerning 'L'. A number of decisions were subsequently made (from 2014 by the Guardianship Division of the Tribunal with the establishment of NCAT). These orders in the period following the 2013 matter until to 2020 were by way of applications and reviews of Guardianship Orders. The most recent order of the Guardianship Division was made on 20 January 2020 whereby on review, a further Guardianship Order was made appointing the Public Guardian for a period of two years conferring functions on the Guardian in the areas of: access, accommodation, health care, medical and dental consents, services and restrictive practices consents.
5. 'L' has lived in supported accommodation since August 2013, initially under ADHC and more recently under a non-government organisation (NGO) funded under the NDIS.
6. In 2020 as part of their functions under the 20 January 2020 reappointment of a Guardian, the Public Guardian began exploring the accommodation arrangements for 'L' as part of their obligations as his Guardian. The decision making process was initiated following a proposal from the Coordinator of Supports for 'L's NDIS plan. The Coordinator of Supports submitted that 'L's accommodation at that time was unsuitable for his needs. Specifically the accommodation model was determined to have multiple challenges in effectively managing 'L's behaviour particularly in the area of sensory input. 'L' shared the accommodation with four other men who each had different communication and support needs.
7. The Coordinator of Supports arranged for a comprehensive behavioural support plan (BSP) to be developed for 'L' by a clinician, whereby this could be used to assist in locating and planning for a new placement in different accommodation. The service provider identified by the Coordinator of Supports was considered the only suitable provider to emerge after some years of searching, which met all of 'L's necessary criteria as recommended by the BSP.
8. As part of the response to the accommodation and services decision of the Public Guardian on 28 August 2020, a statement of reasons was prepared on 21 September 2021 being five days after the application for Administrative Review was lodged with the Tribunal.

The Decision

1. It was determined that the new provider would be able to provide both the supported living and day programs for 'L' which was consistent with what was occurring at the placement on the Central Coast.
2. Specifically the areas of support identified for 'L' in the plan and the proposal focused on his disabilities. 'L' appears to have some difficulty modulating his responses to sensory input; particularly when he is heightened, anxious or agitated. These features of 'L's disability are the primary focus that determine the suitability of the proposed placement and the capacity of service staff to implement appropriate strategies to help 'L' balance the sensory and input and processing challenges in an environment dedicated to himself.
3. The reasons for decision goes on to outline how the current and proposed service providers were engaged with, to provide input on the best outcome for 'L'. The Coordinator of Support has facilitated a collaboration with (the proposed provider) and 'L's health professionals and other parties to assess placement offered in relation to the recommended model of care for 'L'. The views of all interested parties including the current service provider.. his parents and others familiar with 'L's needs were gathered over the next 3 months due to the impact of COVID-19 restrictions. There was a consensus of views from independent health professionals that 'L' would thrive and have more capacity to learn and develop as a young man in a new placement. There is a shortage of suitable placements that meet the necessary criteria for the support model recommended for 'L'.
4. On a more practical point and central to this review, as a result of the decision 'L' moved from a placement in the Central Coast where he was nearby to his father and some of that side of the family, to a placement in Western Sydney in late 2020. Transition planning had been in place since the decision and absence of any stays.
5. In balancing the needs of 'L' and the consequential impacts on the persons in the his life, the decision maker is required to have regard to the central principles from the Guardianship Act 1987, as are all decisions made by Guardians appointed under that Act where functions are exercised.
6. In making the decision the Public Guardian asserted that they gave paramount consideration to both the professional and independent views supporting the proposal and that any delay would impact on 'L's welfare and interests in the longer term. In addition the Public Guardian noted that 'L's disability limits his own ability to make decisions and he will require 1:1 support.
7. ELQ sought external review by the Tribunal of the Public Guardian access decision of 6 December 2019. That review was brought pursuant to s 80A of the Guardianship Act 1987.
8. These substantive proceedings concern this review of the decision of 28 August 2020. ELQ initially sought a stay when filing the application. The stay application was brought under s 60 (2) of the Administrative Decisions Review Act 1997 (the ADR Act). On 29 September 2020 the stay was refused and oral reasons given. A further application for a stay of the decision was brought by ELQ after the initial hearing date was unable to proceed on 13 November 2020 as set out at [5] above.
9. The stay application was heard and decided on 8 December 2020. The reasons for decision were provided to the parties on 8 December 2020 with the Tribunal deciding to refuse the stay. From the reasons it is clear that the Tribunal had significant regard to the evidence that 'L' was at an increased risk the longer he stayed in his initial placement. The Tribunal also noted that there was general agreement that 'L's then accommodation was not suitable so there was further reason not to prevent progress on the relocation. In addition the Tribunal was satisfied that the identified new provider had appropriate plans and arrangements in place to progress 'L's transition to new accommodation. The Tribunal also noted that the (scheduled) substantive hearing was quite proximate (two weeks time) and this was further reason to not create a different accommodation regime should the Tribunal hearing the matter make a decision which would result in further change for 'L'.

Jurisdiction

1. The decision under review is a reviewable decision in accordance with s 80A of the Guardianship Act.
2. The section provides: 80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian (1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) An application under this section may be made by: (a) the person to whom the decision relates, or (b) the spouse of the person, or (c) the person who has the care of the person to whom the decision relates, or (d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.

Administrative Review

1. The Tribunal's function on review under section 63 of the Administrative Decisions Review Act 1997 (the ADR Act) is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not constrained to have regard only to the material that was before the agency, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409.

The Issue to be decided

1. The issues before the Tribunal in this application are whether the Decision of the Public Guardian to relocate 'L' from his supported accommodation on the Central Coast, to supported accommodation provided by a new provider in Western Sydney (at Granville) is the correct and preferable decision.
2. In determining whether the Public Guardian made the decision in accordance with the evidence and the law the Tribunal (standing in the shoes of the Public Guardian, is guided by the principles as set out at s 4 of the Guardianship Act, which provided as follows: 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, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
3. As the Guardianship Division of the Tribunal had appointed the Public Guardians as Guardian for 'L', there is no dispute that the decision of 28 August 2020 involves the exercise of functions by the Public Guardian under the Guardianship Act. Nor is there any dispute that the application for administrative review has been received within time.
4. ELQ made the following grounds for review in their application: That I asked for a copy of the decision report on the 9th of September and till today I have not received it. We are anxious and terrified of the enormous move for our son ('L') who already suffers depression bi polar. We would like to have an opportunity to show NCAT that we have good reason to not want this move to go ahead. It is detrimental to our son's welfare and happiness.
5. It is clear from the application that ELQ at the time of completing the application had not received the detailed reasons for decision dated 21 September 2020. However the five-page notice of decision dated 28 August 2020 signed by the Principal Guardian was received at sometime prior to lodgement of the application as it was attached to the application lodged with the Tribunal. The other grounds and matters relating to the central issue were canvassed during the hearing of the review.

The hearing

1. The hearing on 22 December 2020 was conducted entirely by telephone due to COVID-19 restrictions. Due to the appointment of the GAL it had been decided on 13 November 2020 that there was neither a need nor any utility in having 'L' take any role in the proceedings. Subjecting 'L' to these proceedings was seen by all parties (including the GAL) as being contrary to his best interests, particularly in respect of his inability to make any positive contribution due to his disability. The appointment of the GAL as further grounds for this position.
2. All parties tendered a large amount of material at both days of hearing. At the hearing on 22 December 2020 the following material was relied upon and received without objection:

ELQ's Evidence

• Exhibit 'A-1' application for review
• Exhibit 'A-2' Tender Bundle comprising decision, Statement of Uncle of 'L' and letter of Dr Wurth.
• Exhibit 'A-3' Statement of spouse of ELQ 16 March 2021 - tendered 17 March 2021 hearing. Other material was relied upon by ELQ but not formally tendered.

Public Guardian's Evidence

• Exhibit 'R-1' Section 58 documents
• Exhibit 'R-2' Correspondence received from NGO of initial placement of 'L' Other material was relied upon by the Public Guardian but not formally tendered.

DMO's Evidence

• Exhibit 'R2-1' Statement by DMO filed 26 October 2021 Other material was relied upon by DMO but not formally tendered.

GAL's Evidence

• Exhibit 'GAL-1' Report of the GAL prepared for hearing received 22 December 2020 and 22 February 2021

1. Other material was relied upon by the GAL but not formally tendered.
2. All parties filed detailed written submissions. A number of witnesses gave evidence during the hearing. The first witness was ELQ.

ELQ's Evidence

1. In evidence in chief ELQ told the hearing that he resides in Terrigal and that he and DMO separated in October 2009. His son 'L' had lived with DMO for two years following the separation and from August 2011 'L' had lived with ELQ in Sydney and later on the Central Coast.
2. After two years with ELQ 'L' went to live with the first NGO in supported accommodation on the Central Coast. ELQ said that 'L' enjoyed a number of activities including disability surfing at Umina, Terrigal and North Entrance beaches. 'L' lived at Green Point on the Central Coast. Evolution Disability Services provided care for 'L' in the past. ELQ referred to possession of document that states that Evolution can provide services for 'L' on the Central Coast. In addition the agencies Aruma and Autism Central Coast have both said that they could provide ongoing / future support for 'L'.
3. Ms Suen was the consultant who provided the assessment of 'L's support needs. ELQ said that in creating the report Ms Suen did not want face-to-face meetings but wanted to gather the information over the phone.
4. ELQ said that he used to visit 'L' in the home two to three times per week. However he was advised that the frequency of visits was upsetting 'L' and 'unsettling' for him. ELQ's visits as a result went to one visit per week but occasionally he visited twice a week. In respect of his current situation ELQ told the hearing that his current spouse has three children two in their early- mid twenties and one 17 year old.
5. When asked if he would have concerns with visiting 'L' at Granville if his former wife (DMO) was present ELQ said that he would. ELQ gave evidence about an incident from January 2017 where he said that DMO was meant to collect 'L' and was meant to be collecting him from The Entrance. There was an incident of some sort where DMO was filming him with her phone and Police became involved. ELQ was charged with assault and at Court in late February 2017 ELQ was found guilty of 'touching DMO when trying to stop the phone filming'.
6. At the end of evidence in chief the Tribunal asked some questions of the witness consistent with s 38 of the NCAT Act. ELQ was asked what was his view on the current circumstances concerning 'L''s placement. ELQ said that he had 'every right to see his son in his own home whenever he wanted'. The Tribunal understood that that evidence relates to limitations on access to 'L's parents which was deemed necessary by the Public Guardian to avoid conflict. The Tribunal notes that the earlier access decision is not under appeal or in any way part of these review proceedings.

Evidence of ELQ's spouse

1. ELQ's current spouse gave evidence at hearing. In evidence in chief she told the hearing that ELQ and her were married in March 2013. The witness was asked about 'L's weekday activities and reference was made to surfing and being part of a diverse group with activities including dancing and soccer. The witness said that 'L' takes many walks along the beaches with his family and visited them for barbeques.
2. When asked how often these visits occurred the witness said that pre COVID it was about twice a week but post COVID about only one visit per week.
3. The witness was asked about Ms Suen's report and the process around it. The witness said that they were given no real chance to talk and were given an email with some questions which the witness answered.
4. The witness said that the NGO Evolution had been involved with 'L' since 2018 but that other agencies (Aruma and Autism Central Coast) were also available and had some involvement. The witness made a reference to DMO coming to the home and upsetting her husband (ELQ).
5. Then Tribunal inquired of this witness about her knowledge of the visits at the residence at Green Point. The witness said that DMO never attended the home there, so as a result she said there was no anxiety with 'L'. When asked about whether 'L' could visit his father the witness advised that they do not have a spare room and that both she and ELQ work long hours. The Tribunal in seeking to unpack the true import of the impact of the decision to relocate 'L' pressed further on the issue. The witness was asked whether the main issue was mainly around the (understandable) inconvenience caused to them by the decision, in that both the witness and ELQ had busy lives (from her statement) on the Central Coast. The witness said that they instigated the visits in the past and sometimes picked 'L' up on a regular day.
6. The witness referred to a number of emails from the week prior to the hearing concerning inquiries that arm of the family had made with support services on the Central Coast. Emails of 15 December 2020 concerning Evolution, an email of 17 December 2020 concerning another provider and an email from R Trigg of 20 December 2020 from Central Coast Autism were all referred to as instances where inquiries had been made about practical support to keep 'L' on the Central Cost.

Evidence of brother of ELQ

1. The witness adopted his signed statement of 21 December 2020 (which forms part of 'A-2') in evidence in chief. The statement refers to the author as an advocate for 'L' and that he has attended many of the Guardianship hearings and reviews for 'L' on behalf of the family.
2. As the witness was cross-examined on his statement it is necessary to summarise the statement, as adopted.
3. The statement refers to the author's background and experience in property leasing and placement and that with this knowledge he has tried to facilitate inquires in respect of placements for 'L'. The statement refers to the identification of suitable properties (having regard to the matters raised in Ms Suen's report) and refers to attempts to engage in a dialog with the Public Guardian. The statement refers to providers such as House with No steps, Hume Housing and Uniting Church which: …most importantly offer alternatives that are less disruptive to that of relocating 'L' to Greater Western Sydney.
4. The statement refers to these alternatives being 'immediately available'. The statement goes on to refer to the view that there has been a lack of due process, and references to alleged lack of due care by the Public Guardian in how the relocation process was undertaken and arrived at by them. The statement focuses on the impact of the decision on ELQ and matters relating to conflict between ELQ and DMO. Fundamental to my statement is the relationship between Father and son, the decision to move has resulted in a vulnerable person ('L') who has every right to see his father, and a father to see his son, without the fear of a potential AVO by (DMO) who had a track record of aligning the domestic violence where possible to disparage (ELQ) ..
5. The statement goes on to say that as a family they will not support ELQ to have to go to Granville to visit 'L' because they are gravely concerned about past experiences and that based on the last Court hearing, if a further AVO breach was reported by DMO then ELQ would be facing a custodial sentence. The statement addressed the principles under s 4 of the Guardianship Act. The grounds put forth being that it is important to 'L' that his father not go to prison, so that he can see him. The family's views hade not been included, the Public Guardian did not adhere to the report they commissioned and have breached various NDIS principles, that the Public Guardian is seeking to extinguish a paramount relationship between father and son, and a compliant that an independent lawyer was not appointed for 'L' as part of the decision assessment and making process.
6. In cross examination by the Public Guardian the witness was asked about whether Anala on the Central Coast was the preferred 'package' put forth by that arm of the family for 'L'. The witness agreed that it was the preferred option. The witness was asked the meaning of the term 'robust' in respect of the process, as referred to in the statement. The witness said the term referred to robust equating to taking those matters raised by the family into account.
7. The witness elaborated and said that he wanted to illustrate that there exists in the market suitable alternatives to the one decided by the Public Guardian.
8. The witness was asked whether either referenced provider was able to offer a Unit to 'L' himself. The witness said that his understanding was that at least one provider could. He said that Anala day programs and one on one support funded under the NDIS would be available. He said that they have made attempts to match 'L' with those services. The witness conceded when questioned that no clinicians had been involved in the process instigated by him at present.
9. The Tribunal asked question of the witness. When asked the witness said that he was not consulted about matters. He said that he was not aware of what all of the reports that the Public Guardian and the reasons referred to were.
10. In re-examination the witness was asked whether he was aware that DMO visited 'L' at Green Pont. The witness understood that staff took 'L' to another location on the Central Coast when DMO collected him for family visits in Sydney.

Evidence of A Giminez

1. Ms A Giminez who is the Director of Anala Disability Services and Support gave evidence at the hearing. The witness advised that the organisation had provided support coordination for 'L' since September 2020. Mr J Thompson is the actual Support Coordinator for 'L'. The witness advised that they have been liaising with the providers: Evolution and Aruma.
2. Ms Giminez advised that the development of 'L''s support model needs to go through the NDIA (National Disability Insurance Agency) mechanism. When Anala were asked to take on the support role on 6 September 2020 the transition arrangements were already in play. Kelmax was the previous NDIS Support Coordination provider for 'L'.
3. The witness advised that 'L' has settled in well with his new placement with his current provider at Granville. The Transition Planning meetings were completed well and the family had been invited to attend. The witness advised that the family was provided with minutes of the meeting and the spouse of ELQ had been invited to the meeting that took place on 11 November 2020.
4. Ms Giminez advised that the NDIS Support Coordinator would liaise with the Public Guardian about matters first as they held the decision making functions for 'L'. The hearing was told that 'l' has one on one support or a one to one ratio supported independent living model in his current placement (SIL). The witness said that her understanding was that 'L' should live on his own (in his Unit with supports) as her understanding was that from a clinical perspective 'L' could not live in a group with other residents in practice.
5. Ms Giminez said that the Support Coordinator would submit all of the reports for 'L' then they would be considered by the SIL Team at the NDIA. When the supports and the funding mix was right (and approved) then they could proceed with further proposals.
6. When asked about the family's role and whether they should be involved in recommending proposals for 'L', the witness said that she does not support such an approach or recommendation. In her opinion whilst the family could view matters on the MyGov site, with the advent of the NDIS and for someone with 'L' s complex needs, in her opinion arrangements and coordination of supports was really a matter that should sit with the professionals rather than the family.
7. Ms Giminez said that 'L' has his own Villa at his new placement and that they were looking to part transition him into the Group Home after Christmas. At the moment their priority was on keeping 'L' safe and settled. The witness referred to 25 years experience with Autism and that in her experience Autism requires structure and routine. Unpredictability is a significant issue. The witness said that they are currently still engaged in a process of bringing matters together, and this included the family's role in contributing to the NDIS plans for 'L'.
8. The witness was asked about what plans needed to be in place around access for 'L' for visitors (mainly family members). The Tribunal was told that there is an issue if people just show up, for example 'L's mother DMO. Because of the nature of Autism such events could upset 'L' especially if it interrupted something that he was looking forward to such as going to the pool.
9. In cross-examination the witness was asked whether she could offer an opinion that the transition had gone well. The witness said that in her opinion it had gone well (having regard to 'L's complex needs). When asked whether this was her opinion or Mr Thompson's Ms Giminez said that Mr Thompson had given her the information for which she based that opinion.
10. The witness was asked whether any family members had visited 'L' in the last week. Ms Giminez said that since 14 December 2020 no one had visited. When asked why the Director was giving evidence at the hearing Ms Giminez said that Mr Thompson was not available to give evidence today so she attended by telephone to give evidence instead.
11. Ms Johnson the GAL asked some questions of the witness. The GAL asked whether the disruption of routine was something that was an important consideration for 'L'. The witness advised that it was of importance in considering 'L's overall needs with his diagnosis.

Evidence of the GAL

1. Ms Johnson the GAL appointed for 'L' gave evidence to supplement her report emailed on the day of the hearing. The GAL told the hearing that her role since her recent appointment had involved talking to 12 individuals for over one hour each.
2. The GAL said that 'L' has a good relationship with all of his family but particularly so in respect of his father. The GAL said that she believes that this relationship is special to 'L'. The GAL said that the aim for 'L's well-being was to develop a plan for him which takes into account to the extent possible all of the family wishes.
3. The GAL told the hearing that any plan for 'L' needs to develop as his needs change. She said that there was evidence of differing communication styles from both sides of the family and that meeting 'L's well-being and needs would be a lifelong process. The GAL advised that from her inquires it was clear that 'L' loved both of his parents.
4. The GAL stressed in her evidence that there was an issue not just about how communication with the family was sent but also that they were not received in the same way by the parties.
5. The GAL's report which became available at 3:51pm after her evidence to the Tribunal makes the following observations, and was formally received as 'GAL- 1' without objection. 2. My conclusion as 'L's voice, is that he has a very good relationship with both families - his mother's and his father's - in particular he seems to have a very special relationship with his father because that relationship seems to have very personal approach which seems somewhat physical in nature in relation to hugs and touch. (ELQ) gave evidence today with words to the effect that 'L knows my face and knows I am always there'. I believe that (ELQ)'s) relationship constitutes a very positive impact on 'L's well being and it would be a shame for 'L' if that special rapport is somehow unable to continue. 3. I also believe that everyone involved with 'L' has done what they believe is in 'L's best interests and that each believes that their version is the correct version for 'L'. What is required us the ability to recognise that each version is correct from that person's perspective and what is then required is some understanding of the reasons behind each other's versions based on the responsibilities that each party has. …. The aim for 'L's well-being would be to devise a plan for 'L's daily care that accommodates as much as possible the needs of all parties concerned being aware of the enormity of this task which is in my opinion what the Public Guardian has attempted to achieve, to her credit. 4… the evidence given today by (ELQ) demonstrates the very personal approach that (ELQ) prefers if he is to be involved in communication. Yet such an approach cannot always be readily implemented to the degree that (ELQ) considers appropriate for his involvement. This does not mean however that the Public Guardian did not take (ELQ's) opinions into consideration. 5. It is obvious that it will be 'L' that misses out if (ELQ) and (spouse) cannot visit him at his accommodation, should it be Granville. Yet it is imperative that any plan for 'L' needs to evolve as circumstances change and that although the best plans may be made for 'L' they may not be able to be implemented as hoped by his various specialists. …. 6. In addition to the difficulties the father (ELQ) stated that he had with the mother (DMO) in his evidence today as a reason for not visiting 'L' at Granville, I also note from (the spouse's) evidence today that she somewhat confirmed the question asked by the Senior Member that the circumstances of her life and (ELQ's) life are also major factors in their consideration whether to visit 'L' should his accommodation not be on the Central Coast.
6. In examination by ELQ's Counsel the GAL was asked about her observations about the detriment to 'L' if his father could not visit. The GAL confirmed that this was the case as set out and discussed in paragraphs 2 and 5 of her report. The GAL advised that a video conference for (ELQ and 'L') was arranged but the video conference did not go as well as had been hoped.
7. In a further question the GAL was asked whether she had a chance to examine or inquire into any of the other service providers on the Central Coast. The GAL confirmed that she had not looked into this aspect of 'L's needs for the hearing, in part as that was not her role.
8. In examination by the Solicitor for the Public Guardian the GAL was asked some questions about the video meeting. The GAL advised that it only went okay and seemed to be well accepted by ELQ's spouse.
9. DMO asked some questions of the GAL through her son who the Tribunal allowed to speak as her Agent (without objection) under s 45 of the NCAT Act. The question related to whether the GAL held any view that all the parties should have appropriate plans in place in respect of contacting and engaging with 'L'. The GAL agreed that this was very important and that she had referred to this in her written report.

Further hearing / directions

1. On the second day of hearing there was some discussion about the receipt of further material. Following the first full day of hearing directions had been made for the parties to file and serve material. An order giving liberty to apply was made and the parties acted on this and the matter was listed for directions on 3 February 2021. By consent at those directions the Public Guardian was willing to explore whether a further accommodation decision could be made in respect of 'L'.
2. The matter was set down for a brief hearing on 17 March 2021 to consider the receipt of further evidence with a view to any objections being dealt with and the matter thereafter proceeding to determination on the papers.
3. In respect of the fresh decision consideration there was significant agreement and adoption by the parties of the Tribunal's approach to see if the outstanding issues were capable of resolution between the parties.
4. The Public Guardian made a further decision in respect of the central accommodation issues concerning 'L' on 23 February 2021 following the directions of 3 February 2021. The 23 February 2021 (second decision) was to the effect that they had been unable to make a further (or alternative) accommodation decision for 'L'. The parties agreed before the Tribunal that the jurisdiction of the current administrative review proceedings was maintained in respect of the August 2020 (initial) decision as an administratively reviewable decision irrespective of the Public Guardian making or attempting a further decision by agreement. There was no remittal under the ADR Act. In the absence of any resolution of the dispute the review of the August 2020 decision persists.
5. On 17 March 2021 ELQ's Counsel submitted that all orders for which they were responsible had been complied with.
6. At hearing reference was made to the tender of Exhibit 'A-3' which comprised a Statement of ELQ's spouse dated 16 March 2021. That statement refers to the new decision by the Public Guardian (of 23 February 2021) to in effect make no new decision to move 'L' from his current accommodation.
7. ELQ's spouse stated that they had been advised by the Public Guardian that this further decision was not internally reviewable. As a result they advised the hearing that they reserved their position in respect of administrative review.
8. The statement tendered on 17 March 2021 sets out the enquiries and steps that ELQ's brother had taken to identify appropriate accommodation on the Central Coast. It was said in the statement that returning 'L' to the Central Coast would enable him to take up the same activities that he had experienced during his 10 years on the Central Coast previously.
9. The statement referred to Central Coast Autism finalising a transition plan for 'L' which would be ready for finalisation and a move the following day. Both ELQ and his spouse have only seen 'L' once since the move to Sydney, with contact for one hour on 13 January 2021. Other branches of the family had contact with 'L' at his paternal grandparents' home on 28 January 2021.
10. The statement asserts that 'L's behaviour has regressed significantly since some time prior, and that some (adverse) behaviour which had occurred in Sydney had only occurred once when 'L' was on the Central Coast.
11. The statement also referred to Central Coast Autism advising that they can provide social services on the Central Coast and day programs for 'L' immediately.
12. The statement identified as 'A-5' was received with some very slight modification correcting dates and acknowledging that the Guardian does not have access to financial information of the detail sought by ELQ. The author of the statement was not available at the hearing on 17 March 2021.

The subsequent decision

1. Whilst not subject of this review, for the reasons that the further proposal was considered and consideration of a subsequent decision made (as outlined above) I believe it is relevant to summarise some of the points as to why the Public Guardian did not make a further decision to relocate 'L' back to the Central Coast at this time.
2. In essence the proposal to place 'L' with new providers on the Central Coast could not be accommodated due to funding issues, whereby a new and equivalent assessment of the property and staffing capability of Autism Central Coast would be required. All of 'L's disability support needs are funded under the NDIS for both home and community engagement. No funds were available in the current NDIS Plan for additional assessments over and above his ongoing daily support expenses.
3. The Coordinator of Supports had sought further more detailed advice from Autism Central Coast Inc in respect of their demonstrated experience with and capacity to manage high support participants such as 'L'. No advice was forthcoming prior to the decision timing.
4. At the conclusion of the hearing on 17 March 2021 orders were made for all parties (including the GAL) to file and serve any further submissions by 3 May 2021 after which time the matter was reserved.

Party's submissions

1. ELQ agreed that the totality of the proceedings relate to the 28 August 2020 decision. ELQ submitted that contrary to assertions of the Public Guardian they had provided all information and been available at all times (including their proposed providers) to provide immediate responses to any queries about suitable placements for 'L'. ELQ submitted that the version of timelines and some facts in the negotiation and planning processes with service providers was in direct conflict with their own evidence on these points. Essentially ELQ did not accept some of the Public Guardian's assertions as set out in their material.
2. Reference was made to the report of Dr Wurth which was received as part of Exhibit 'A-2'. That report is dated 29 September 2020. The first third of the report covers 'L's sleep issues and medication management. The second third deals with the accommodation issue. The report goes on to state: Efforts have been made to find him more suitable accommodation for a long time, and there is now a plan for him to move to a cluster housing model in Granville run by (X) given that he is much higher functioning than his current housemates. I had a fax from his father in June stating that 'L' was being 'kicked out of his home' when this is not the case. He believes that alternating Risperdal and Seroquel is significantly helpful in maintaining 'L' in a clam state, and wanted this implemented. He did not provide any specifics about the intervals for each treatment nor the doses used when he was following this plan. I must say I am sceptical that it would be helpful, but if he cares to provide details I will consider it in future. The final portion of the report provides the following evidence: The date of the move has not been determined and currently efforts are being made to work out a transition plan. I have made no changes today given the major environmental change that will occur with this move, but the cluster model should suit him well and enable a significant reduction in the impact of his behaviour on others. ….
3. ELQ submitted that 'L' still associates himself with being on the Central Coast and is resistant to any move. Reference was made to a statement said to be made by 'L' on the topic 'no new home, no new home' as evidence of this matter. It is unclear of the exact context of this statement noting that there have been ongoing discussions and these very proceedings focusing on making 'L' undergo a further move. In making this observation I also observe that both sides of the family have had direct unsupervised contact with 'L' during the months since his move to Granville. This is further reason why those reported comments (particularly noting that a GAL has ben appointed for 'L') should carry little weight.
4. ELQ submitted what was essentially his main point being that because 'L' was no longer on the Central Coast, then his side of the family would have limited contact with 'L'. Reference was made to the special bond identified by the GAL and confirmed by ELQ.
5. ELQ made various submissions throughout the proceedings that they were either not consulted, or kept out of critical aspects of the assessment and decision making process.
6. A significant contention of ELQ was that when Ms Suen prepared her comprehensive behavioural assessment report, there were discussions between Ms Suen and DMO but only an email and interview with ELQ and his spouse.
7. A further submission was made about 'L's history since the parental separation. ELQ submitted that 'L' lived with DMO and his siblings from the separation in 2009 until 2011after which time he lived with ELQ and his spouse and her children on the Central Coast until 2013. From 2013 'L' had lived in group homes on the Central Coast. The submission of ELQ as that 'L' had lived on the Central Coast from 2011 to 2020 a period of approximately 10 years, and that this time period was indicative (noting 'L's disability) as to why he should stay based on the Central Coast.
8. Further submissions were made concerning the inquiries and arrangements that had ben made by ELQ's family to secure suitable accommodation local to them.
9. Significant emphasis was placed on one of the s 4 principles form the Guardianship Act, being 'the welfare and interests of ('L') should be given the paramount consideration and the importance of preserving ('L's) family relationships and his cultural and linguistic environments (on the Central Coast) in ELQ's submissions. ELQ submitted that for these reasons the decision should be set aside.
10. Reference was made to the case of DGR v Public Guardian [2018] NSWCATAD 267 and ECV v Public Guardian (2020) NSWCATAD 86 as authority for the decision being set aside and remitted to the first respondent to determine afresh.
11. The Public Guardian made written submissions after hearing and focused on the complexities of the decision making and assessment process, and 'L's needs.
12. The Public Guardian submitted that the decision to move 'L' was correct because: 1. The model of support was unsuitable for the previous five years; 2. The one on one supports brokered through the existing provider to another Service were unsuitable; 3. Options to cease that (b) arrangement through changes to staff rostering did not proceed for a number of reasons; 4. The Guardian considered eight alternative support (SIL) vacancies on the Central Coast and two in Sydney and all were deemed unsuitable due to 'L's complex needs; 5. The current provider and engaged Service had experienced staffing issues in their management of 'L'; 6. There was a limited number of skilled staff and availability at short notice in the existing arrangement.
13. The Public Guardian reiterated their central submission being that the decision to move 'L' was based on: 1. The identification of a suitable placement, living in a single villa with a SIL model of care; 2. Alignment with 'L's NDIS goals; 3. The placement met 'L's assessed needs for support to promote his independence and potential to live as normal life as possible in the community; 4. 'L's behaviour at the residence required significant medication as well as approved restrictive practices and these often arose in the context of the incompatibility with other residents in his earlier placement and limitations on the support staff; 5. 'L' challenging behaviours escalate when routines are unpredictable and this is exacerbated due to interactions with other residents; 6. The new provider offered accommodation in a single unit/villa which was identified as an opportunity to reduce challenging behaviours; 7. Expert assessments were obtained which supported the proposal; 8. There are limited other suitable placements of this type; 9. The decision to move 'L' was seen as being a benefit to him now and in the future.
14. On the central issue of access and family visitation, whilst holding an access function the Public Guardian had not made any access decision concerning 'L'. In effect family and friends were free to liaise with support staff about visiting 'L' or making arrangements for outings by agreement. The Public Guardian's preference is for all access matters to be arranged informally.
15. It was submitted that the informal arrangements should be done in a manner that puts 'L's needs ahead of the needs of all others. In the current situation the Public Guardian submitted that the family should indicate clear and reasonable expectations about requests for advice and contact can be made both from and to the parents to build relationship and promote trust and confidence with 'L's support service.
16. The Public Guardians refuted (in submissions) the assertions that 'L's behaviour had regressed or somewhat deteriorated since his move to his new placement. The Tribunal has not referred to the evidence that the Public Guardian referred to in submissions, nor has it examined that evidence as ELQ's Solicitor noted that it had not been received during the two hearing dates and objected to its late submission.
17. The Public Guardian submitted that the NDIA supported the current placement for 'L' and noted that any move at the moment would not be reasonable or necessary.
18. DMO provided submissions which were in support of the decision. DMO noted that the previous service provider conceded that they were unable to provide appropriate support and referred to his placement at that time as being 'unsuitable' for 'L'.
19. DMO noted that he new placement at Granville was approximately equidistant between the residences of both parents and neither favoured one over the other. In addition the Granville accommodation was particularly close to the residence of the paternal Grandparents (being ELQ's parents).
20. DMO's final submission sought in part to provide evidence of matters transpiring in recent months in respect of 'L'. Whilst the applicant (and other parties) have not had the opportunity to test that material, the Tribunal has noted the material. In doing this the Tribunal notes that the rules of evidence do not apply to these proceedings, but to give the material any significant weight would be unfair in the absence of any ability to test the material.
21. The material provides DMO's observations and opinions which go to her support of the current placement (and the decision). Of relevance is an opinion that the NDIS funding has enabled the continuation of close family relationships with both his non Central Coast members of his extended family and to support maintaining those family relationships with those on the Central Coast.
22. DMO submitted that ELQ had not made any meaningful submission which challenged the decision of the Public Guardian of 28 August 2021 in accordance with the principles of administrative law. DMO submitted that the case had focused on other issues, and this included exploring alternative options.
23. DMO submitted that in respect of the correct and preferable decision, based on the totality of the evidence before the Tribunal there was simply no other option available that was as suitable for her son 'L'.
24. DMO supported the decision to dismiss the later proposal for Autism Central Coast to place 'L' , mainly because the NDIA determined that it was inappropriate to allocate further funding to investigate the suitability of this proposal given 'L's current positive placement.
25. In closing DMO made the following submission: It is my submission that 'L' is more than adequately supported in this current placement. I perceive no issues to access that cannot be addressed by a willingness to engage with service providers. I note transport for family members can be implemented almost immediately by utilising finding allocated under the NDIS Plan. Ultimately 'L' requires time and monitoring to ascertain how well his accommodation works for him, and this is a process that requires a significant period of coordination and effort to meaningfully assess. I believe the Public Guardian is more than capable to make this assessment, and to raise the issue of whether 'L' should consider alternative placement.
26. Ms Johnson the GAL's evidence and submissions at hearing are set out above. In written submissions dated 17 March 2021 the GAL submitted that the preferable approach would be for a way to be found for 'L' to maintain relationship with both arms of his biological family. In order for this to occur and to allow 'L' to develop some autonomy the GAL submitted that education is needed for the parties so that parental contact can be as predictable as possible and an enjoyable experience for 'L'.
27. The GAL submitted that for this to occur others needed to be willing to make sacrifices to maintain their relationships with 'L'. The GAL submitted as part of their role that maintaining those good relationships would be in 'L's best interests and that her observations were that 'L' very much wanted to maintain those relationships.

Consideration

1. This administrative review application has been brought under s 80A of the Guardianship Act.
2. In note that the Guardianship Act provides (in effect) that the subject person is the paramount consideration in a matter. The long title provides that it is an Act with respect to the guardianship of persons who have disabilities. Section 4 provides the general principles relating to Guardianship. The section provides: 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, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

Possible outcomes following administrative review

1. Section 63 (3) of the ADR Act sets out the range of possible outcomes of an administrative review by this Tribunal. Having determined an application the Tribunal may decide: (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
2. As noted above much of the contest in these proceedings concerns the decisions to relocate 'L' to a different locality to receive his supported accommodation (SIL) and how that decision had been made without proper regard to the section 4 principles under the Guardianship Act. In essence that is ELQ's legal case. Whilst a large amount of their case focused on counter claims and inconsistencies in the Public Guardian's evidence about consultation and the provision and receipt of information, the central focus appeared to be to achieve an outcome from the Guardian that recognised a need for 'L' to live on the Central Coast. Little evidence and submissions were put forward as to why this option would be of greater benefit to 'L' other than he obvious one, being that ELQ would have a closer and positively maintained relationship with 'L' to a greater extent if 'L ' was located on the Central Coast.
3. There was no real attempt to illustrate any detriments to 'L' staying on the Central Coast. There was limited engagement on the evidence of Dr Wurth and the previous provider which I give significant weight in support of the decision and I note was tendered by EMQ.
4. I note that the Tribunal has recently revisited the application by a Guardian of the s 4 principles to a lifestyle decision. The Tribunal in the case of DYH v Public Guardian [2021] NSWCATAD 136 examined this issue in some detail and noted the previous guidance of the Tribunal from the case of WL v NSW Trustee and Guardian [2011] NSWADTAP 22. At [72]-[78] of DYH the Tribunal observed: Relevant authorities on the section 4 Principles and their application 72. The principles set out in section 4 of the Guardianship Act are clearly of substantial importance in determining the two present applications. It is therefore appropriate to deal with the leading authorities as to how those principles should be applied. 73. In WL v NSW Trustee and Guardian [2011] NSWADTAP 22 ("the WL Case"), the Administrative Decisions Tribunal Appeal Panel, on which Deputy President Hennessy presided, undertook a detailed analysis of the principles set out in section 4 of the Guardianship Act and observed, at [71], as follows: "Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 9064 0127, 14 August 1996). The "principles clause" in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles" 74. The Deputy President's analysis was cited with approval in a more recent consideration of section 4 by the Appeal Panel of this Tribunal in ZDU v ZDV [2017] NSWCATAP 197, where the presiding member was Deputy President Schyvens, the Divisional Head of the Guardianship Division of this Tribunal. 75. Four important aspects of the operation of the section 4 principles emerge from the WL Case and the leading Supreme Court case of P v NSW Trustee and Guardian [2015] NSWSC 579 ("P v NSW Trustee"). (1) In the WL Case the Tribunal noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4. That must apply with equal force to the Public Guardian in this case. (2) In the WL Case at [76] the Tribunal observed that the section 4 principles are not expressed in absolute terms and that phrases such as "as little as possible" and "as far as possible" make it clear that observing a particular principle does not mean that, where a discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although internally the section 4 principles are not expressed in absolute terms, it is clear that the principle in paragraph (a) is in a special category: the decision-make it is required to give consideration to the welfare and interests of subject person and that consideration must be the decision maker's paramount consideration. To put it another way, paragraph (a) is always "relevant". (3) In the WL Case at [75], the Tribunal confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and may demonstrate observation of those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. (4) In P v NSW Trustee Justice Lindsay, relying on the earlier case of Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at 543 [167], confirmed that: "… the Guardianship Act should be construed beneficially, having regard to its protective character. Paragraph (a): "paramount consideration" 76. Paragraph (a) of section 4 requires everyone exercising functions under that Act with respect to people who have disabilities to observe the principle that the welfare and interests of such persons should be given paramount consideration. The Concise Oxford Dictionary of Current English (6th edition) defines "paramount" in the following terms: "Adj. of the greatest importance or significance". 77. I draw the following conclusions as to the scope of section 4: (1) As noted at 75 above the need for the decision maker to consider the welfare and interests of the subject person is mandatory. (2) The word "paramount" sets paragraph (a) apart from the other principles in section 4. It is the factor which is required to be given the greatest importance and significance in every case. Put another way, (perhaps in a more contemporary but practical way), the 'welfare and interests' principle "trumps" all the other section 4 principles. (3) It follows that any decision maker should expressly refer to paragraph (a) or provide reasons for decision which demonstrate clearly that that paramount principle has been observed and has been given the greatest importance and significance, then the decision may not have been made properly in accordance with the Guardianship Act. 78. It is also clear, on the basis of the authoritative analysis by Deputy President Hennessy in the WL Case, that if I am satisfied that the Public Guardian has in the present case provided reasons for its decision which demonstrate clearly that all relevant principles have been observed, then the decision will have been made in accordance with the Guardianship Act. It will, absent some overriding fact or legislative provision which impacts on the relevant facts, also be the correct decision.
5. As noted above at [75] (2) of DYH, the s 4 principles are not observed as absolutes. At [76] of WHL the Appeal Panel of the Administrative Decisions Tribunal (ADT) observed the following: 76. However, the principles are not expressed in absolute terms. Phrases such as "as little as possible" and "as far as possible" make it clear that observing a principle does not mean that, where a discretion exists, a decision maker must make a particular decision. For example, observing the principle in s 4(b) does not necessarily mean that every person must be given complete freedom in relation to their personal, domestic and financial affairs.
6. In the current case the accommodation decision must pass through what Senior Member Currie refers to in DYH the "final filter" of 4(1)(a). If a decision does not (on balance) result in the overall welfare and best interests of the person (in this case 'L'), then it does not have regard to the paramount interests of the person. Expressed another way, any decision which might have benefits, but when weighed up against other criteria provides a greater detriment to the overall welfare and best interests of the person - as opposed to making no decision at all, will not have had regard to the paramount consideration and will on balance be contrary to the s 4 principles.
7. Any decision cannot be the correct decision unless it ultimately has passed through the matrix or filter of s 4(1). It cannot be the correct decision unless it is made as the result of the decision-maker having given paramount consideration to the welfare and interests of the person with a disability.
8. The Public Guardian weighed up all of the s 4 criteria. Whilst ELQ asserts that s 4(1)(e) has been overlooked in the decision making process, on balance the impact of the geographic relocation of 'L' was of greater importance (at present) when having regard to the positive impact the s 4(1)(b) and (c) principles.
9. There is nothing that I can discern from the decision or the decision making process based on the evidence and material before me that indicates that the decision has not had regard to all of the criteria, even if the preservation of the family, cultural and linguistic matters might be diminished in some way. The section does not (as identified in DYH) require that a decision must result in a positive score or benefit on every criteria.
10. Clearly some decisions whilst having positive impacts will have some impacts that are less desirable. The statutory language 'as little as possible' lifted from s 4 and commented on in the cases referred to above is relevant here.
11. In my view the decision of the Public Guardian took into account the overall need (accepted by his then care providers and treating psychiatrist) that the care and support model was not well suited to 'L's needs. Various measures and steps were undertaken over a 12 month (or longer) period to make the necessary assessments, plans and inquiries.
12. NDIS funding needed to be secured to enable these matters by way of Plan Reviews. The evidence indicates that the ultimate changes deemed necessary for 'L' were also consistent with his NDIS Goals which themselves mirror many of the s 4 principles in their objectives to limit restrictions and allow persons with disabilities to live as normal a life as possible, having regard to their overall well being and best interests.
13. The s 4 Principles themselves mirror in many aspects the General Principles of the United Nations Convention on the Rights of Persons with Disabilities. Article 3 - General principles The principles of the present Convention shall be: Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons; Non-discrimination; Full and effective participation and inclusion in society; Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity; Equality of opportunity; Accessibility; Equality between men and women; Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
14. This Convention is referred to by the legislatures of Australia (including New South Wales) when introducing and debating legislation by way of second reading speeches concerning Bills that have an impact on persons with disabilities.
15. Whilst ELQ gave evidence that the change to 'L's accommodation would have a negative impact on his ability to maintain the same level of relationship with 'L', no specific evidence was provided to illustrate why ELQ or indeed that branch of the family could not adapt for 'L's benefit. Whilst there was evidence that both ELQ and his spouse were busy people with busy lives based on the Central Coast, the only real practical reason given was a concern of coming into contact with DMO and that this might lead to some further escalation in conflict which might result in adverse legal matters.
16. The evidence was silent in respect of whether ELQ was prepared to make adjustments and arrangements. His evidence that it 'was his right to see his son', was not contested by any witness. However it was given in the context that the decision of the Public Guardian had (in ELQ's opinion) removed his 'right' to see his son. As the GAL submitted it is very important for ELQ to see his son and for 'L' to maintain his close an ongoing relationship with his father ELQ.
17. There was evidence given by 'L's Uncle that the maternal grandparents were now closer to 'L's residence and that as a result there had been visits (either by way of incursions or excursions). These matters were confirmed by DMO who talked positively about how 'L' was closer to those that previously he had been some distance away from.
18. The Public Guardian's evidence which was supported by DMO's evidence is that 'L' is now located equidistant (approximately) between both of his parents. Whilst the submission of the Uncle was that some of 'L's behaviours had regressed since the move, other evidence and submissions indicated that the overall improvements were greater.
19. I observe that much of the submissions and evidence at hearing focused on the adverse impact of the decision directly on some members of the family and indirectly on 'L'. As was made clear by the Tribunal during the course of the lengthy proceedings, the focus of these proceedings, and any decisions exercised under the Guardianship Act, is the person 'L'. Whilst it would be unfortunate that a specific decision would have a significant adverse result in respect of one of the s 4 principles for some of the relevant parties, the overall determinative matter rests with s 4(1)(a).
20. In that regard these proceedings are primarily concerned with 'L' and 'L's interests, and the Legislature has picked up the relevant matters in the other provisions (b)-(g).
21. Not all decisions of a Guardian will provide the same level of positive outcomes for a person under Guardianship. Sometimes these decisions will result in restrictions on the person's lifestyle which can limit the relationships referred to under s 4(1)(e) for some persons. (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,
22. In my view the Public Guardian has correctly applied the provision by considering all of the s 4 criteria and determining on balance whether the decision is the best decision having regard to the welfare and interests of 'L'.
23. The Public Guardian took professional specialist advice, advice which the previous provider submitted could lead to a better overall lifestyle outcome for 'L'.

Conclusion as to the accommodation decision

1. In my view the Public Guardian undertook the decision-making process in relation to the accommodation decision in accordance with the Section 4 principles. The evidence and submissions overwhelmingly supports a finding that the previous accommodation should change and that at the period August - December 2020 there was only one appropriate provider available that met 'L's complex support needs.
2. I have outlined the reasons for this in the evidence and submissions and consideration above. I am not satisfied that ELQ has provided sufficient evidence to tamper with that decision, or to cast doubt on it in any way to establish that it was made contrary to the s 4 principles.
3. The Public Guardian provided reasons for the decision at the time and more detailed reasons for decision approximately four weeks after the decision. In their submissions to the Tribunal they have further outlined the basis for the decision. In addition the Public Guardian has examined (post decision) whether in the short term viable alternatives to the current arrangement exist (as put forth on behalf of ELQ). I observe that whilst ELQ's desire to have 'L' relocated back closer to him, I note that there has been very little evidence (other than the understandable importance of their relationship) put forth by ELQ to establish how this can override the overwhelming weight of evidence as to the need for a change which resulted in the August 2020 decision. It appears that ELQ is either not able or not prepared to communicate in the manner suggested by the GAL that all the family should engage in order to provide the greatest benefit to 'L' in his current circumstances.
4. I make this observation with some caution because there has been limited other basis given to the strong impetus to return 'L' to the Central Coast. I envisage that ELQ genuinely holds 'L's interests as of great significance, especially concerning his decade living in the area, and only wishes to maintain his positive relationship with 'L'. These are admirable and important qualities for a parent to hold in relation to a child.
5. However based on the evidence before me upon which the decision to move 'L' was based, and noting it's adherence to the process required under s 4 of the Guardianship Act, I find that the correct and preferable decision is to affirm the decision of the respondent.

Orders 1. The decision of the first respondent dated 28 August 2020 is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2021