S v S

Judgment 1HIS HONOUR: In these reasons I will call the protected person "C", as I did in my earlier published reasons (Re C [2012] NSWSC 1097). 2By notice of motion filed in court this morning and heard instanter, the plaintiff seeks orders that: (a) the NSW Trustee and Guardian release funds from C's assets immediately to assist in relocation to a rental property at St Albans or to rent a property at Marengo with an exchange of contracts on a five per cent deposit with the balance of the purchase price of the latter property to be paid within six months; (b) the court stipulate an immediate date for decision on either the St Albans rental property or the purchase of the Marengo rural property; and (c) she be granted the function of deciding the questions of accommodation for C jointly with the Public Guardian, or singly, that is to say, by herself alone, and that the NSW Trustee release necessary funds to secure suitable accommodation. 3By the notice of motion the plaintiff also sought an order that all moneys deducted from C's assets be returned to him. So far as this last order is concerned, I think it relates to a concern by the plaintiff that the costs of the proceedings to date incurred by the NSW Trustee and Guardian, or which might otherwise be charged by the NSW Trustee and Guardian, might be deducted from C's assets which are under its financial management. That matter has already been dealt with. 4As to other deductions from C's assets, the NSW Trustee and Guardian has provided an up-to-date statement of account which does not call for any orders to be made at this time. 5Insofar as the plaintiff seeks orders to require the Public Guardian or the NSW Trustee to purchase the Marengo property, the application is in no different position from an application I heard on 16 July 2012. The NSW Trustee and Guardian has not agreed to the release of funds which would be necessary to purchase that property and the Public Guardian has not approved of it as a suitable place of residence for C. The evidence on this application does not suggest any improper decision-making in those respects. 6The present application is brought within the Crown's parens patriae jurisdiction which is preserved by s 8 of the Guardianship Act 1987 (NSW). However, that jurisdiction is to be invoked only in exceptional circumstances. The Guardianship Act confers the functions of making decisions about guardianship on the appointed guardian. It confers a right of appeal to the Administrative Decisions Tribunal. It is not the function of this court simply to stand in the place of the decision-maker. It would defeat the statutory scheme that provides for a review to the Administrative Decisions Tribunal if a person dissatisfied with a decision of, in this case, the Public Guardian, could simply start afresh by invoking in this court the Crown's parens patriae jurisdiction. 7In S v S [2001] NSWSC 146 at [11], Young J observed that even in the cases in the parens patriae jurisdiction, the court does not interfere with the decision of the primary fact-finder unless some error appears in the process leading to the decision or the decision is clearly wrong. 8Part of the plaintiff's concern is with the availability of funds that could be used in the purchase of a property that would be used as the residence for C and also for the plaintiff, who, presently at least, is C's carer. It seems from email correspondence that the NSW Trustee and Guardian has advised the Public Guardian that a sum of $190,000 and no more is available for the purchase of such a property. According to the statement of account for C, the funds standing to the credit of his account are currently some $356,000 and this does not include moneys that are being retained in the estate of Mr Arendt against possible claims against Mr C arising from the collection of rents in relation to the Ryde property. 9The plaintiff submits that it would be to C's advantage for his funds to be used to purchase a property for his residence. As I observed in my reasons in Re C [2012] NSWSC 1097, it seems that C's pension is reduced or may be removed altogether if the funds to which he is entitled remain invested in cash, whereas, if they were used to buy a home for him, his pension should be restored. 10I do not know the reasoning for the decision that $190,000 only should be available for purchase costs. Presumably, it is based upon an assessment as to what other cash funds will be required for his support for the remainder of his life. As I understand it, the issue has been raised by the plaintiff only in today's application. No basis is shown for me to interfere with that decision of the NSW Trustee and Guardian. 11In any event, the court would not simply substitute its decision as to where C should reside for that of the Public Guardian. The Public Guardian has not made a decision, and seems unlikely to make the decision, that the property which the plaintiff would like to purchase for her father, be purchased. The reason I say that appears to be unlikely is because of its distance from Sydney. Accordingly, I will not make any order which might require the Public Guardian or the NSW Trustee and Guardian to purchase the Marengo property on a five per cent deposit and an interim rental arrangement, or otherwise. 12So far as the plaintiff's application is concerned that she be given the function of deciding questions of accommodation with the Public Guardian jointly or, alternatively, solely, it is sufficient to say that the Guardianship Tribunal has made the decision that the Public Guardian should have the function of determining questions of accommodation. There has been no appeal from that decision. The previous application by the plaintiff for orders that the Public Guardian be removed as C's guardian was dismissed. Nor would it be useful to make an order that the plaintiff and the Public Guardian exercise a function of determining questions of C's accommodation jointly. I see little prospect of their agreeing. Such an order would only exacerbate the existing difficulties in relation to the management of C's affairs. 13The real question concerns the decision-making process in relation to a proposal for the leasing of a property in St Albans. The background is that on 19 September 2012 the plaintiff wrote to Ms Merceica of the Public Guardian to advise that a rental property had become available to rent for $600 a week in Bilpin. She described aspects of the property and advised that current access arrangements could continue. She provided a copy of the proposed lease. 14It appears that in conversations on either 19 or 20 September 2012, the landlords, in discussions with Ms Merceica, agreed to hold open the leasing of that property to C and the plaintiff for at least two weeks. According to an email from Ms Merceica, at no time did the landlords communicate with the Public Guardian that they were considering other candidates, but that is disputed in an affidavit provided by one of the landlords, Mrs Punchon. 15The Public Guardian approved of the leasing proposal on 12 October 2012. Ms Merceica says they attempted to communicate that decision to the landlords. But the decision was not communicated until 16 October 2012, by which time, according to Mrs Punchon, it seems a lease had already been signed with another party. As noted in earlier proceedings, the plaintiff and C have been required to vacate their present residence. Matters have got to the point where eviction orders have been made. On 17 October 2012, the Public Guardian made a decision that C is to reside temporarily at the address in Vaucluse of his son and his son's wife. 16In communicating that decision to the plaintiff, Ms Merceica stated: "This arrangement will be reviewed upon receiving alternate accommodation proposals from you. The Public Guardian acknowledges [C's] wishes for you to remain his carer and to remain living in the community. Presently it has been established [C's] care needs can be met in the community with the support of a full time carer, day centre and respite services." 17Proceedings were instituted by the Public Guardian in the Guardianship Tribunal to vary the accommodation orders to confer express authority on the Public Guardian to authorise others, including members of the New South Wales Police Force and the Ambulance Service, to take C to a place approved by the Public Guardian. 18According to the email correspondence tendered on this application, the matter was before the Guardianship Tribunal on 23 October. That was when the last order was made. According to the email correspondence, arrangements were then made with the plaintiff for C to be collected from his current place of residence by a transport service provider to be taken to reside with his son. However, it appears that that did not happen because the plaintiff on the nominated day took C with her, she says, to investigate alternative rental possibilities in the Goulburn area. 19This step on her part led the Public Guardian to engage the services of the police. It also seems to have prompted a change of attitude on the part of Ms Merceica. In an email of 29 October 2012 to the plaintiff, Ms Merceica advised that: "The Public Guardian will not review alternative accommodation proposals until [C] is in stable accommodation. Any future proposals put forward need to offer stable and sustainable tenancy for [C]." 20Ms Merceica also set out other requirements that other alternative accommodation proposals would need to satisfy, including reasonable travel distance times between C and his son, or between her and C. 21On 30 October the plaintiff advised Ms Merceica of a new accommodation proposal. She said that a property had become available for rent for a 12-month lease at St Albans. By this application the plaintiff seeks orders that would require the Public Guardian to make a prompt decision in relation to that proposal. She also seeks an order for the release of funds to enable the property to be leased. 22It does not seem to me that there is any issue concerning the release of funds. The Public Guardian had previously, after discussions with the NSW Trustee and Guardian, agreed to a rental proposal which involved a higher rent than that for the St Albans property. The question is what, if anything, the Court should do in relation to the plaintiff's urging that the Public Guardian make an immediate decision. She is understandably anxious to avoid the situation that occurred in relation to the proposal for the renting of the property in Mount Irvine Road, Bilpin, where it seems that the opportunity for leasing was lost because of the time taken by the Public Guardian in making a decision. 23It seems she has good reason for concern about that timeframe. I was advised by counsel for the Public Guardian that the Public Guardian did not propose to make that decision until there had been an assessment of C when he was in the care of his son and his son's wife. It seems that the Public Guardian is now minded to give new consideration as to whether C should remain in residence and under the care of the plaintiff or whether he should be residing with his son. 24The decision about C's accommodation is required to be made in accordance with the principles in s 4 of the Guardianship Act. The decision must be made in accordance with what is considered to be C's best interests. His welfare and interests are the paramount considerations. Other relevant general principles for decision-making include that so far as possible he should be encouraged to live a normal life in the community, and his views should be taken into consideration. He should be encouraged as far possible to be self-reliant. Family relationships, so far as possible, should be preserved. In this case the family relationship between C and his son, on the one hand, and between C and his daughter, on the other, are fractured, although it appears from earlier decisions of the Administrative Decisions Tribunal that it would be C's wish to maintain good relations with both. 25Earlier decisions have been made concerning with whom C should live. On 27 October 2009, following an application by C's son, the Public Guardian, on an internal review of a prior decision, decided that C should reside on a permanent basis with his son at his son's home. That decision was set aside by the Administrative Decisions Tribunal on 10 March 2011. The Tribunal then decided that C was to reside on a permanent basis with his daughter (the plaintiff) on certain conditions as to access. That decision was affirmed on appeal to the appeal panel on 25 July 2011 (PZ v NSW Trustee and Guardian [2011] NSWADT 48 and TF v PZ (GD) [2011] NSWADTAP 33). 26The function of the Tribunal on reviewing the earlier decision of the Public Guardian was to decide what was the correct and preferable decision having regard to the material then before it. Its decision was made in substitution for the prior decision and is taken to be the decision of the Public Guardian (Administrative Decisions Tribunal Act 1997 (NSW), ss 63 and 66). 27A decision as to accommodation is a decision that the Public Guardian can be required to make from time to time. Therefore, notwithstanding that the Tribunal decided that C should reside on a permanent basis with the plaintiff, it is open to the Public Guardian to make a new decision pursuant to s 21 of the Guardianship Act and the functions conferred on it by the Guardianship Tribunal's order that C reside with his son. However, it would not be a proper exercise of that power to depart from the earlier decision of the Tribunal unless there had been a change of circumstances that warranted such a change, otherwise the statutory facility of a review would be set at naught. 28As late as 17 October 2012 it seems that the Public Guardian was of the view that it would be in the best interests of C for him to live in new accommodation, but with the plaintiff. The Public Guardian acknowledged C's wishes that she remain his carer and that he remain living in the community. The Public Guardian acknowledged that C's care needs could be met in the community with the support of a full-time carer, day centre and respite services. 29So far as appears from the material on this application, the only change of circumstance since then has been the plaintiff's action in not allowing C to be collected on 24 October 2012 to move him to his son's house on a temporary basis. Her explanation for that is unconvincing, but it would not be a proper exercise of the Public Guardian's decision-making function for the Public Guardian to defer making decisions about accommodation merely in reaction to the plaintiff's failure to adhere to the arrangements that had been made. 30The material on this application includes file notes of the Office of the Public Guardian that are said to be file notes of Ms Merceica concerning C's son's ability to provide full-time care for C. A note of 27 June 2012 records that his son advised that he could not accommodate C in his home, and that between him and his wife they did not have available time, and that according to C's son, C should reside in full-time care or with a minimum of two full-time carers. A file note of 16 July 2012 records that C's son had long wanted to place his father in aged care. 31It does not appear from the advice of the Public Guardian as to its decision of 17 October 2012 that it was then the Public Guardian's view that C should be placed in a nursing home. To the contrary, it was recorded that his care needs could be met in the community with appropriate support. 32Counsel for the Public Guardian submitted that Ms Merceica needed to talk to C once he had settled in his son's home and become stable in order to assess C's wishes as to where he wished to continue to live. The Public Guardian has acknowledged that C's wishes were for the plaintiff to remain his carer. 33It is not clear to me why the Public Guardian has not interviewed C to date. It was suggested from the bar table that this may have been due to obstruction on the part of the plaintiff, but there was no evidence to that effect and she strenuously denied it. I should have thought there had been ample opportunity for the Public Guardian to speak to C; and, indeed, I would have thought that it was the Public Guardian's duty to visit him (see Re C at [50]). 34It seems to me that the evidence does disclose a serious risk of error in the decision-making process. It is accepted that it would be within the Court's inherent jurisdiction to give directions in guardianship matters for it to give a direction as to the time by which a decision as to the St Albans proposal should be made. Having regard to the apparent consequence of the delays in making the decision concerning the Mount Irvine Road, Bilpin, property, I think such a direction should be given. 35I do not propose to fashion an order as to what matters should and should not be taken into account by the Public Guardian in reaching that decision. The Public Guardian is to act in accordance with s 4. In the course of these reasons I have given my views as to what matters would not be proper to take into account in reaching that decision. 36It would be open to any party to apply to the Administrative Decisions Tribunal to review the further accommodation decision. I will make an order requiring the decision to be made promptly so that if any review is sought by any party then, depending upon the speed with which the Administrative Decisions Tribunal can deal with such an application, a decision on review can also be made promptly. 37There is now no issue that, for at least the time being, C will have to move to his son's house in accordance with the Public Guardian's decision of 17 October 2012. After the Public Guardian had complained to the plaintiff about her failure to have C available to be called for on 24 October 2012, she proposed that arrangements be made on Thursday, 1 November for his moving to the Vaucluse property. The Public Guardian suggested that it would be more convenient for that to be done immediately after today's hearing, and I am told that those arrangements are in place and that there is no impediment to their being implemented. 38Accordingly, and subject to hearing anything further that might be put in relation to the appropriate timeframe to be put on a decision, the only order I propose is to direct that if the Public Guardian requires any further information from the plaintiff in relation to her proposal that C be accommodated in the property at St Albans Road, St Albans, that the plaintiff be advised of what information is required by no later than Tuesday, 6 November 2012 and that a decision on that proposal be made by the Public Guardian by Friday, 9 November 2012. 39Otherwise, I propose to order that the notice of motion be otherwise dismissed and I would hear the parties on costs. 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: 08 November 2012