LON [2017] NSWCATGD 26

NCAT Guardianship|2017-10-27|Before: Windeyer J

ited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG [2004] NSWADTAP 3 Jumbunna Coal Mine v Victorian Coal Miners' Association (1908) HCA 95 Ms A v Public Guardian & Ors [2006] NSWADTAP 55 NGM [2011] NSWGT 7 (11 March 2011) P v D1 & Ors [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 Re B [2011] NSWSC 1075 Texts Cited: Nil Category: Principal judgment Parties: Ms LON (the person) Ms BIQ (applicant, carer) The NSW Trustee and Guardian The NSW Public Guardian Representation: Nil File Number(s): NCAT 2016/00392193 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

Background

Ms LON is 19 years old. The Tribunal understands that she is diagnosed with moderate intellectual disability. Until recently, Ms LON resided with her mother, Ms BIQ, at a residence in Western Sydney, New South Wales (NSW).
On 25 November 2016, the Tribunal made a guardianship order for a period of 12 months, appointing the Public Guardian as Ms LON's guardian with the functions of accommodation (authorise others), advocacy, health care, and medical and dental treatment. On the same day, the Tribunal dismissed an application for financial management in relation to Ms LON.

Evidence

In her applications for guardianship and financial management, Ms BIQ stated that the Public Guardian's 'hands are tied' in exercising their function. She said Ms LON is 'missing', she has refused to come home and she has had no contact with her. Ms LON is currently visiting her boyfriend in Brisbane and his mother is 'trying to exploit [her and] take over her money'. Ms LON's boyfriend's mother had also threatened to 'hit' her.
Ms BIQ stated that Ms LON has made 'unsafe choices' since turning 18 years old and she has now been put in situations involving 'acts of violence sexual/non-sexual'. She said Ms LON is nine weeks pregnant and alleged that her boyfriend has a 'drug habit'. She expressed concern regarding Ms LON's capacity to look after her child, as well as the child's welfare.
On 25 October 2017, Ms BIQ informed a Tribunal Officer that she still cannot locate Ms LON in Brisbane and does not have a contact number for her. She advised that Ms LON is now 12 weeks pregnant and continues to give money to her boyfriend.
In a letter dated 17 October 2017, Ms X, Registered Psychologist, stated that she has known Ms LON since 2010 and has worked with her for a number of years in a behaviour support function, as well as providing a therapeutic psychological service. Ms X stated that she has been informed by Ms BIQ that Ms LON is currently living in 'an unsafe environment', having absconded from her mother's home to go and live with her boyfriend and his mother in Western Brisbane, Queensland. This environment is considered unsafe due to 'ongoing verbal and physical abuse'. Ms X stated: [Ms LON] was diagnosed with Moderate Intellectual Disability (intellectual functioning of around age 12), ADHD (combined type) and Sensory Processing Disorder and Auditory Processing Delay… I am unsure whether she continues to take her medication as she is either no longer being supported or has refused support…[Ms LON]'s environment needs to be more appropriate for her disability and she is then also more likely to be kept safe.

Jurisdiction

In view of the evidence before it, the Tribunal initially had some concerns in relation to whether Ms LON was still a resident of NSW and whether she had been able to be served.
The Guardianship Act 1987 (NSW) (the Act) does not specify that the subject person must be in NSW at the time the application is made or that the subject person must be a resident in or domiciled in NSW. However, there is a common law presumption against the extraterritorial operation of statutes enacted by State parliament (see Jumbunna Coal Mine v Victorian Coal Miners' Association (1908) HCA 95). The presumption is that the provisions of a NSW Act of Parliament will apply only to a given person, thing or act where there is some clear connection or nexus between that person, thing or act and the State of NSW.
Whilst the presumption can be rebutted, the Tribunal generally only has jurisdiction to make a guardianship order for someone who is a resident of NSW or physically present in NSW at the time of the hearing, even if not actually a resident (see, for example, EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501; and Ms A v Public Guardian & Ors [2006] NSWADTAP 55).
In her oral evidence to the Tribunal, Ms BIQ clarified that Ms LON had left her home in NSW to stay with her father overnight. However, she had subsequently joined Mr FAC and, together, they had travelled to Queensland. Ms LON had returned home two weeks ago. However, she had travelled to Queensland again to see Mr FAC. Ms BIQ told the Tribunal that she had spoken to Ms LON on the day before the hearing and her daughter had indicated that she wished to return home. She added that Mr FAC's mother does not wish Ms LON to remain with her in Queensland due to her pregnancy.
The Tribunal accepted Ms BIQ's evidence. On the basis of this evidence, the Tribunal was satisfied that, whilst Ms LON had recently travelled to and stayed in Queensland for short periods of time, she had not 'moved' to Queensland. The Tribunal was satisfied that she continues to be a resident of NSW.
Moreover, in relation to the statutory review of the guardianship order made by the Tribunal on 25 November 2016, the original application was served on all parties, including Ms LON, while she was in NSW. The matter before the Tribunal was in the nature of re-consideration of that application to either continue, vary or discharge the orders made.
Section 18 of the Act provides as follows: 18 Term of guardianship orders (1) A continuing guardianship order has effect: (a) in the case of an initial order for such period (not exceeding 1 year from the date when it was made) as the Tribunal may specify in the order, or (b) in the case of an order that is renewed for such period (not exceeding 3 years from the date when it was renewed) as the Tribunal may specify in the order. …
It is arguable that the application which is before the Tribunal now is the original application for a guardianship order. Sections 25 and 25C of the Act further support this view (see NGM [2011] NSWGT 7 (11 March 2011). The Tribunal was of the view that the relevant application was the application which led to the order made on 25 November 2016. That order was made in respect of a person resident in and domiciled in NSW, and appointed the Public Guardian to make decisions on her behalf in NSW. Therefore, the Tribunal had jurisdiction both to make the order and to review it.
In relation to the application for financial management, the Tribunal has jurisdiction to make a financial management order for a person who lives in NSW or has assets in NSW. The Tribunal found that Ms LON is a resident of NSW and continues to live in this state, albeit intermittently. The Tribunal, therefore, had jurisdiction to make a financial management order.

The Hearing

The hearing was held on 27 October 2017. Ms BIQ and Mr David Ibrahim from the Office of the Public Guardian attended the hearing by telephone.
At the commencement of the hearing, Ms BIQ told the Tribunal that she had informed Ms LON of the date and the time of the hearing two weeks ago. The Tribunal attempted to contact Ms LON on a mobile telephone number provided by Ms BIQ. Ms BIQ told the Tribunal that Ms LON's boyfriend, Mr FAC, had taken the SIM card out of her phone and she might not be contactable or her mobile telephone. The Tribunal's attempts to contact Ms LON on her mobile telephone were unsuccessful. The Tribunal also attempted to contact Ms LON by calling Mr FAC's mobile telephone. However, these calls were not answered.
Whilst the Tribunal wished to afford procedural fairness to Ms LON, given the nature of the substantive matters raised by the applicant, it was determined that it would not be in Ms LON's interest to adjourn the hearing. The Tribunal also accepted Ms BIQ's evidence that Ms LON had been placed on notice of the hearing in relation to both guardianship and financial management. The Tribunal was persuaded that both the statutory review of the guardianship order and the financial management application should be considered and proceeded to take evidence from the witnesses.

THE GUARDIANSHIP APPLICATION

In view of the fact that the Tribunal decided to conduct a statutory review of the guardianship order made on 25 November 2016, Ms BIQ effectively withdrew her application for guardianship.
Having regard to the principles in s 4 of the Act, the Tribunal consented to the withdrawal of the application. Accordingly, the application for financial management is dismissed pursuant to s 55(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW).

STATUTORY REVIEW OF GUARDIANSHIP ORDER

At the hearing of 27 October 2017, the Tribunal considered it appropriate to bring forward the statutory review of the order made on 25 November 2016 and commence the review before the end of the period concerned (s 25(3)(a) of the Act).
On reviewing the current guardianship order the Tribunal may renew, renew and vary the order, or determine that the order is to lapse.
The questions to be considered by the Tribunal are: 1. Is Ms LON someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions? 2. Should the Tribunal make a further guardianship order and if so, what order should be made? 3. Who should be the guardian? 4. How long should the order last?

Is Ms LON someone for whom the Tribunal could make an order because she continues to have a disability which prevents her from being able to make important life decisions?

Section 14 of the Act provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is 'a person in need of a guardian'. A person in need of a guardian is 'a person who because of a disability is totally or partially incapable of managing his or her person' (s 3(1) of the Act). A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007; or 4. otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (s 3(2) of the Act).
When the previous order was made, the Tribunal found that Ms LON had a mild to moderate intellectual disability and that the combination of her disabilities caused her to be at least partly unable to manage her person, in the sense of making informed decisions about significant issues in her life.
Ms X's letter of 17 October 2017 indicates that Ms LON continues to suffer from a moderate intellectual disability. The Tribunal is satisfied that Ms LON continues to have a disability which prevents her making important life decisions. She is a person for whom the Tribunal could make a further guardianship order.

Should the Tribunal make a further guardianship order and what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. The views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. The importance of preserving the person's existing family relationships, and 2. The importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
At the hearing, Ms BIQ told the Tribunal that there is no certainty as to the paternity of Ms LON's baby. Mr FAC has asked Ms LON to terminate the pregnancy, but Ms LON has not indicated that she wishes to terminate the pregnancy.
Ms BIQ said that both Ms LON and Mr FAC have perpetrated acts of violence on each other. Ms BIQ relayed what had been reported to her by Ms LON and Mr FAC's mother, stating that Mr FAC had accidentally 'got [Ms LON] in the eye' and had pushed her around. Mr FAC's mother had also tried, on one occasion, to hit Ms LON, but Mr FAC had prevented this by standing between the two.
Ms BIQ stated that, other than an ultrasound, Ms LON has not received antenatal care and she would like her to receive this care in Sydney. She requires a further ultrasound and more blood tests. Previously, Ms BIQ had taken Ms LON to the doctor to receive treatment in relation to STDs. Ms BIQ said that Ms LON does not wish to go into supported accommodation and she wanted to return to Sydney to have her baby. However, it appears that she had been prevented from doing so as Mr FAC can be abusive and on previous occasions he had dispatched his friends to retrieve Ms LON from the train station.
Mr Ibrahim from the Office of the Public Guardian submitted that he had found it very difficult to communicate with Ms LON and has only managed to communicate with her when Ms BIQ has been involved. Ms LON had only seen the Public Guardian once and, on that occasion, she did not engage with the visiting guardian. At that time, she was residing intermittently at her ex-partner's house and her mother's house.
Mr Ibrahim noted that the Public guardian has had limited involvement with Ms LON. She has been making her own decisions, but she continues to put herself in risky situations. She has now been approved for the National Disability Insurance Scheme (NDIS) and would benefit from supported accommodation. However, supported accommodation is not being recommended by any concerned person, including the Public Guardian. Mr Ibrahim stated that he had spoken to Ms LON on 17 October 2017 and she had reported to be safe and happy. She had also indicated that she did not plan to return to NSW. Queensland police had been called on a number occasions and had carried out welfare checks. No concerns were recorded by the police. The police had also assisted Ms LON to board a train to Sydney, but she had returned to Mr FAC's residence.
In relation to any immediate risks to Ms LON's safety, Mr Ibrahim stated that the situation is unclear. He noted that, when Ms LON was residing with her ex-partner, there were concerns that she was being subjected to domestic violence by him. Initially, Ms LON had denied being subjected to domestic violence, but she had acknowledged the violence more recently. Whilst there were also concerns for the welfare of her unborn baby, Mr FAC's mother had arranged for Ms LON to see a GP and had organised an ultrasound.
The Tribunal queried the utility of a guardianship order, given the practical challenges manifest in Ms LON's situation. Mr Ibrahim submitted that, in view of Ms LON's vulnerability, she needed a guardian with the same functions originally determined by the Tribunal. The function of services may also be needed to allow the guardian to advocate on Ms LON's behalf and navigate service planning through NDIS. He added that who the Tribunal appointed as the guardian might address some of the questions surrounding the utility of an order. Mr Ibrahim also indicated that Ms LON might continue to move between NSW and Queensland, in which case an application can be made to the Queensland Civil and Administrative Tribunal (QCAT) for a recognition of the Tribunal's order in Queensland. The recognition would extend to any coercive functions included in the order, including authorising others.
Having carefully considered the evidence before it, the Tribunal was persuaded that, in view of Ms LON's vulnerability and her precarious situation, a further guardianship order should be made. The Tribunal decided that the guardian should have the functions of advocacy, accommodation, health care, medical and dental consent, and services she might need. The Tribunal was also satisfied that there continue to be sufficient grounds upon which to base a view that it would be necessary for the guardian to have additional powers to authorise others to take Ms LON to a particular place, to keep her there and return her to that place. Given the principles of s 4 of the Act, the Tribunal is generally loath to provide an appointed guardian with such authority. However, the Tribunal was satisfied, on the evidence, that such an authority is necessary in all of the circumstances.

Who should be the guardian?

When the previous order was made, the Tribunal appointed the Public Guardian as guardian. However, the evidence provided by Mr Ibrahim and Ms BIQ at the hearing indicated that the Public Guardian had faced difficulties in communicating with Ms LON and in exercising the functions of the order. The Public Guardian had succeeded in meeting Ms LON on one occasion only and that meeting had been made possible through the involvement of Ms BIQ.
At the hearing, Ms BIQ proposed herself as guardian. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with s 17(1) of the Act. She must: 1. have a personality generally compatible with the personality of the person under guardianship, 2. have no undue conflict of interest (particularly financial) with those of the person and 3. be able and willing to exercise the functions of the order.
In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Guardianship Act (C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).
In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.
The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed (s 15(3) of the Act).
The Supreme Court has held that: the proper meaning to be given to the section is to read it as saying that the Public Guardian should not be appointed in circumstances in which an order can properly be made in favour of another person. That requires not only that the person be willing, reliable and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).
The evidence before the Tribunal indicated, and the Tribunal accepted, that Ms BIQ has continued to make a concerted effort to remain in communication with and be involved in her daughter's life. The Tribunal also accepted that Ms LON, despite leaving home, has continued to rely on her mother for emotional and financial support at times of crisis. The Tribunal was persuaded that Ms BIQ would have a better chance of exercising the functions specified above and she is able and willing to exercise the functions of the order.
On the basis of this evidence, the Tribunal was satisfied that Ms BIQ meets the requirements to be appointed as the private guardian for Ms LON.

How long should the order last?

On review, a guardianship order can be renewed for a period of up to three years from the date on which it was made. As Ms LON did not attend the hearing to express her views and due to her shifting circumstances, the Tribunal decided to make an order for 12 months to enable Ms BIQ to undertake important decisions on Ms LON's behalf with regard to the functions specified in the Tribunal's order.

FINANCIAL MANAGEMENT APPLICATION

The Tribunal is the Civil and Administrative Tribunal of New South Wales in its Guardianship Division. The Guardianship Division has been assigned the functions of the Tribunal in relation to the Act and some other specified Acts.
The making of a financial management order is a function under the Act and is governed by the legislative framework set out in that Act. It is the duty of everyone exercising functions under the Act, including the Tribunal, with respect to persons who have disabilities, to observe the principles set out in s 4 of that Act. A similar duty applies to appointed financial managers pursuant to s 39 of the NSW Trustee and Guardian Act 2009 (NSW).
These principles reflect the protective nature of the guardianship jurisdiction (which includes the financial management jurisdiction) but seek to strike a balance between providing necessary protection and promoting empowerment of persons with disabilities including by intruding no more than is necessary on their rights and liberties. Strictly speaking, the financial management regime under the Act, unlike the guardianship regime under that Act, focuses on incapability per se without the requirement to base that incapability on a person's disability. Nevertheless, it will usually be the case that the incapability is so based. In that case, the duty in s 4 is enlivened, including the principle that the welfare and interests of the person are to be given paramount consideration; taking into consideration the views of the person and the importance of preserving the family relationships and the cultural and linguistic environments of the person.
The questions to be considered by the Tribunal are: 1. Is Ms LON incapable of managing her affairs? 2. Is there a need for another person to manage Ms LON's affairs and is it in her best interests for a financial management order to be made? 3. If so, who should be appointed financial manager?

Is Ms LON incapable of managing her affairs?

The test for determining a person's capability to manage his or her affairs has been described as follows (P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]): Is a person reasonably able to manage his or her own affairs in a reasonably competent fashion, without the intervention of a [financial manager] charged with a duty to protect his or her welfare and interests? … [A] focus for attention is whether the person is able to deal with (making and implementing decisions about) his or her own affairs (person and property, capital and income) in a reasonable, rational and orderly way, with due regard to his or her present and prospective wants and needs, and those of family and friends, without undue risk of neglect, abuse or exploitation.
In considering whether the person is "able" in this sense, consideration may be given to:

past and present experience as a predictor of the future course of events;
support systems available to the person; and
the extent to which the person, placed as he or she is, can be relied upon to make sound judgments about his or her welfare and interests: see Lindsay J in CJ v AKJ [2015] NSWSC 498, [38], and P v NSW Trustee and Guardian [2015] NSWSC 579, [309].

The evidence, set out above and accepted by the Tribunal, indicated that Ms LON has moderate intellectual disability. Ms BIQ's evidence was that she has been managing Ms LON's finances ever since she started receiving a Disability Support Pension (DSP) at the age of 16. Ms LON does not appreciate the 'concept of money' or how to budget. She had witnessed Ms LON hand over her allowance to her boyfriend 'for drugs'.
On the basis of the evidence before it, the Tribunal was satisfied that Ms LON is incapable of managing her affairs in a reasonably competent fashion.

Is there a need for another person to manage Ms LON's affairs and is it in her best interests for a financial management order to be made?

At the hearing Ms BIQ told the Tribunal that, until recently, Ms LON's DSP was being paid into Ms BIQ's account, allowing her to informally manage Ms LON's finances. As a result, Ms LON had accumulated approximately $5,000 in savings. However, two weeks prior to the hearing, Ms LON had made Mr FAC's mother her Centrelink nominee and her pension was being redirected into Mr FAC's mother's account. She said she believed Ms LON had 'probably' been forced to make this arrangement. She added that, given the state of Ms LON's finances, the situation is not entirely clear. Ms BIQ confirmed that she is no longer Ms LON's Centrelink nominee and she is no longer is a position to be able to manage her daughter's finances informally. She has been informed by Centrelink that she would require a financial management order to make any further changes.
In the course of making submissions in relation to the review of the guardianship order, Mr Ibrahim stated that it is not clear how Ms LON is managing her finances and that she is at risk of financial exploitation.
The Tribunal was satisfied that Ms LON's Centrelink income and her modest savings require to be managed. The Tribunal was satisfied that Ms LON's incapacity to manage her finances makes her vulnerable to self-mismanagement and exploitation. The Tribunal was satisfied that Ms BIQ is no longer in a position to manage her daughter's finances informally. The Tribunal was persuaded that there is a need to appoint someone to manage Ms LON's affairs. The Tribunal was satisfied that it is in the best interests of Ms LON that a financial management order be made.

Who should be appointed as financial manager?

In appointing a financial manager, as in making all other orders under the Act, the Tribunal must act with the interests of the person concerned as the paramount consideration and in accordance with the other principles set out in s 4 of the Act.
Section 25M of the Act provides that, if the Tribunal makes a financial management order, it may appoint a suitable person to manage the person's estate or may commit the management of the estate to the NSW Trustee and Guardian.
Ms BIQ proposed herself as financial manager. The Tribunal accepted that Ms BIQ had previously managed her daughter's finances informally and that, generally, Ms LON trusts her mother. The Tribunal was satisfied that Ms BIQ is willing to be appointed as her daughter's financial manager and that she would act in Ms LON's best interest. The Tribunal, therefore, appointed Ms BIQ as Ms LON's financial manager subject to the authorities and directions of the NSW Trustee and Guardian.
The Tribunal may determine that a financial management order should be reviewed within a specified time. In considering whether the order should be reviewed, the Tribunal had regard to the principles set out in s 4 of the Act, including giving Ms LON's welfare and interests paramount consideration and taking into consideration her views. The Tribunal was mindful of the fact that Ms LON did not attend the hearing. It was also evident that her current circumstances are marked by instability and potential significant change. These factors, as well the fact that Ms LON does not have significant assets or debts, led the Tribunal to determine that the financial management order should be reviewed within 12 months.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 January 2018

Trustee and Guardian Act 2009(NSW)

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Judgment (16 paragraphs)

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