The Husband v The Public Guardian

The Husband, the Wife and the Events of 2014 - 2016

1. The husband and wife lived together for 17 years before their marriage in February 2001. At the time of the hearing they were respectively 66 and 65 years of age. They have lived separately since 19 October 2014, when, because of the events the subject of these proceedings, the wife entered the local hospital and was from there ultimately discharged to a nearby Aged Care Facility ("the aged care facility").
2. The husband and wife have executed mutual wills. The wife's will of 1 November 2004 named the husband as the sole beneficiary of her estate. On 5 August 2009 the wife granted an enduring power of attorney in favour of the husband.

The Wife's Mental Health Issues and Hospitalisation

1. The wife's mental state was declining by late 2013. Professor H, a neurologist, examined her in August 2014. Ms M, a neuropsychologist, examined her in October 2014. They both formed the opinion that the wife's presentation was consistent with logophenic Alzheimers's disease, a form of primary progressive aphasia that affects cognitive and behavioural function. But Ms K, a clinical neuropsychologist examined her later and diagnosed her in December 2014 as suffering from frontal lobe dementia.
2. On 19 October 2014, the husband says that he found the wife lying injured in her bed at their home. She was quickly admitted to the emergency department at the local hospital, where she remained for a few days. On 20 October 2014, when being questioned about her injuries, the wife told hospital staff that she had been drinking and had fallen down stairs and hit her head. But later she communicated to hospital staff: that she had been assaulted by the husband; and that although she had previously denied that he had abused her, she was now "fed up" with "it" and wanted [presumably the abuse] to stop.
3. In November 2014, the wife was transferred to the transitional care unit at the local hospital. A case manager from this unit, Ms S, applied to the Tribunal for guardianship and financial management orders for the wife.

Police Intervention and the Attempted AVO against the Husband

1. When the wife was admitted to the local hospital, the hospital records and the husband's own evidence show that he provided a history to the medical staff that the wife had consumed excessive amounts of alcohol prior to and on the night of 19 October 2014. But after admission Prof. H noted that she showed no signs of alcohol withdrawal and consistently scored a zero on the alcohol withdrawal scale. The husband also told hospital staff that the wife's family had a history of dementia. Some evidence before the Tribunal and this Court contradicts this account of the wife's family history.
2. A few days after her admission in October 2014 Dr P, a Neurology Registrar reviewed the wife. Prof H sat in on their session. During this consultation the wife "confided that her husband [name not published] inflicted the physical violence that occurred on Sunday (19th Oct) that lead to the admission on Monday early morning (20th Oct)". The wife alleged that the abuse had been going on for "years", and she said that she was afraid of the husband. She also expressed this to another doctor Dr D, claiming that the husband was "very aggressive" and had been abusing her for "at least the previous 12 months".
3. Following the wife's admission, Prof. H contacted Constable M the Domestic Violence Liaison Officer (DVLO), at the local police station. Prof. H advised Constable M of what were taken to be allegations of domestic violence against the husband. The police attended the hospital later that evening to interview the wife, who is recorded as having repeated the substance of earlier statements she had made about the husband to doctors Prof. H and D. Earlier this same day a female friend of the wife, Ms N, visited the hospital and informed hospital staff that she was concerned that the husband had been misusing the wife's personal funds. Ms N's evidence is examined later in these reasons.
4. The police contacted the husband on 28 October 2014, requesting that he attend the local police station for a video interview and that he forfeit certain firearms in his possession. On 1 November 2014 the husband attended at the local police station. Whilst he was there he was served with an interim Apprehended Violence Order (AVO).
5. Whether or not the AVO would proceed supported by the wife's evidence became controversial. On 29 October 2014, the wife was visited at the local hospital by friends. That same day she also received a phone call from her step daughter in Queensland. A ward nurse at the hospital says she overheard the wife informing her caller that the husband had hit her and that she was seeking an AVO. Following this telephone call, the wife approached Ms W, a social worker, and said that she no longer wanted to pursue an AVO against the husband. The wife later changed her mind and agreed to proceed with the AVO. The following day the husband attempted to visit the wife but hospital staff turned him away.
6. On 25 November 2014, the wife attended at the local Court House to give evidence in the Local Court proceedings in relation to her AVO. The wife was taken to a secure room to give her testimony. But she was unable to proceed, stating "I don't want to see [the husband]" and that she was "feeling frightened" apparently after seeing one of the husband's friends through the window.
7. On 25 November 2014, the husband gave undertakings to the local DVLO that he would pack the wife's possessions and give them to the police. He did so on 18 December 2014.
8. On 9 January 2015, the DVLO informed the wife's case manager that the AVO hearing had been brought forward to Friday, 16 January 2015, and that the wife would not be required to attend.
9. On 14 January 2015, the police informed the wife's then case manager, Ms W, that the police were no longer going to pursue an AVO against the husband as there were "no grounds for an immediate AVO as there is no immediate threat" to the wife and that the anticipated 16 January hearing would not be taking place.
10. The hearing was adjourned to 27 January 2015. The interim AVO was ultimately dismissed due to the wife's failure to support it with her evidence. The police took the view that she was not a reliable witness.
11. The AVO's dismissal took place at the Local Court on 20 February 2015. Costs were awarded on the dismissal of the AVO to the husband against the police. But following the dismissal, hospital staff still banned the husband from seeing the wife at the hospital before responsibility for her guardianship and the financial management of her estate were decided. The Court has not been called on to examine whether they had a proper legal basis for taking this course.

The 19 March 2015 Guardianship and Financial Management Orders

1. On 19 March 2015, the Tribunal considered two applications about the wife's care: one regarding her guardianship; and the other for her financial management. Ms S, the case manager at the Transitional Care Unit at the local hospital brought the applications.
2. At the hearing on 19 March 2015 the evidence before the Tribunal was to the effect that: (1) the wife had lived with her husband prior to her hospitalisation in late 2014, but had since been separated from him; (2) the wife had been hospitalised in October 2014, and subsequently transferred to transitional care in November 2014; (3) the wife could not return home due to domestic violence; (4) an apprehended violence order (AVO) had been sought to protect the wife which named the husband as the defendant, but that this AVO application had not proceeded.
3. The Tribunal decided on 19 March 2015 to make a guardianship order appointing the Public Guardian to make decisions for the wife about her accommodation, general services and legal services for a period of 12 months.
4. The Tribunal also made a financial management order committing the wife's affairs to the management of the NSW Trustee for an unlimited time period.
5. The husband was not notified of this March 2015 hearing before the Tribunal. Not surprisingly he did not participate in it. The husband's absence from the March 2015 hearing is a central feature of a number of the husband's arguments on this appeal, both with respect to the financial management orders and the guardianship orders.
6. Guardianship Act, s 3F specifies who are "parties" to proceedings brought under the Guardianship Act. The husband contends that the Guardianship Act mandated that he was always a statutory party to the Tribunal's proceedings, both for the financial management orders and the guardianship orders. The applicable provision of the Guardianship Act, s 3F(1), (2) and (5) relevantly provides as follows: "3F Persons who are "parties" to proceedings under this Act (1) A person is a party to proceedings before the Tribunal under this Act as provided by this section. (2) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act: (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (d1) the enduring guardian, if any, of the person to whom the application relates, (e) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the [NCAT Act]. … (5) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a financial management order under this Act: (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (e) the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force, (f) the NSW Trustee, (g any person whom the Tribunal has joined as a party under section 44 of the [NCAT Act]"
7. Similar provisions for the deeming of persons to be parties to proceedings apply when the Tribunal undertakes reviews of orders made on an initial application.
8. Whether or not the husband did indeed qualify under Guardianship Act, s 3F(2) and (5) as a party to the Tribunal's proceedings is an important question in these proceedings. The Tribunal concluded at its 23 February 2016 review hearing that the husband did so qualify and accepted that he was a party to its proceedings.

Events Subsequent to the 19 March 2015 Hearing

1. The husband only first became aware of the 19 March 2015 hearing and orders in late May 2015, when the Commonwealth Bank of Australia (CBA) informed him that his power of attorney from the wife had been revoked and that a transaction he had initiated in good faith on their joint account had been cancelled. On 27 May 2015 the CBA sent him a letter stating that "the NSW Trustee and Guardian requested on 4 May 2015 to close [the wife's] credit card account as they believe she is being finically exploited and to transfer the funds to their account".
2. The husband reacted quickly. On 1 June 2015 (and again on 21 August 2015) the husband's solicitor, Mr Rodney Kent of Kent Attorneys, telephoned and then wrote to the Tribunal contending under Guardianship Act, s 3F(5)(c) and (d) that he was a party to the proceedings on 19 March 2015 on the grounds that: he (1) he was the wife's husband; and/or, (2) he had previously provided care to the wife. He sought information as a party about the evidence before the Tribunal and the orders the Tribunal made on 19 March 2015.
3. On 27 July 2015, the Public Guardian applied to the Tribunal to review the wife's guardianship order by adding additional guardianship functions to the existing order.
4. On 27 August 2015, the Tribunal adjourned the Public Guardian's application. It planned to convene an interlocutory hearing about the husband's party status in the proceedings. The Tribunal held in the interim that the husband should not be provided with any materials relating to the Tribunal's 19 March 2015 hearings, until it could be determined whether he was entitled to be a party.
5. On 11 September 2015, the husband's solicitor, Mr Kent again wrote to the Tribunal contending that the husband was a statutory party and had been entitled to be present at the 19 March 2015 hearing. Once again he sought copies of the documents already before the Tribunal in the proceedings. On 14 September 2015, an officer from the Tribunal responded to Mr Kent stating that documents would not be provided to him, pending a hearing set down for 2 October 2015, which would determine whether the husband was indeed a statutory party to the proceedings.
6. On 25 September 2015, the husband applied for a review of the 19 March 2015 guardianship and financial management orders.
7. On 2 October 2015, the Tribunal concluded that the husband was a party to the Public Guardian's review application as he was a person who had previously cared for the wife: Guardianship Act, s 3F(5)(d). But the Tribunal was not satisfied that the husband had a close and continuing relationship with the wife as her spouse, as would be required to establish his party status under Guardianship Act, s 3F(5)(c). The Tribunal therefore ordered under NCAT Act, s 64(1)(d) that any information that might disclose the wife's location was not to be disclosed to the husband.
8. On 3 December 2015, the Tribunal reviewed the guardianship order made on 19 March 2015. The Tribunal renewed the Public Guardian's appointment as the wife's guardian, but made several variations to the order, allowing the Public Guardian to make decisions as to her accommodation, services, health care, medical and dental treatment, and access to people.

The 23 February 2016 Hearing

1. On 23 February 2016, the Tribunal undertook an end of term review of the guardianship order made on 19 March 2015, as varied on 3 December 2015. Simultaneously the Tribunal heard the adjourned hearing of the husband's application for review of the guardianship order and financial management order.
2. The participants in the hearing before the Tribunal included Ms Wendy Kemp, the Senior Guardian with the Public Guardian and responsible officer for the wife, Mr David Burwood, the wife's separate representative and the husband, represented by his counsel Ms Robinson and solicitor Mr Kent.
3. At the 23 February 2016 hearing Mr Burwood expressed the view, with which Ms Kemp, Ms Robinson and Mr Beal agreed, that he did not believe that it was in the wife's best interests to participate in the hearing. It was not in issue that the wife continued to be "a person in need of a guardian" within Guardianship Act, s 14 and that she was at least partially unable to manage her person.
4. The Tribunal "was satisfied that whilst it would be in the interests of [the wife] to participate in the hearing if she were able, her inability to effectively participate, together with the risk of distressing her, were such that the Tribunal should proceed with the hearing in her absence but with Mr Burwood present to represent her interests".
5. Following the 23 February 2016 hearing, the Tribunal made orders confirming the appointment of the NSW Trustee as the financial manager of the wife's estate and the appointment of the Public Guardian as the wife's guardian for 12 months. The Tribunal published its reasons on 3 May 2016.

Actions Taken under the Guardianship and Financial Management Orders

1. Important decisions about the wife's way of life and the management of her estate have been made under the authority of the Tribunal's 19 March 2015 orders, including as subsequently varied.
2. The Public Guardian made a decision on 4 June 2015 to permanently accommodate the wife at the aged care facility. The Public Guardian has permitted the husband to visit the wife there weekly, which the evidence before this Court shows has occurred. But these visits are required to be supervised. The husband claims he has made several requests to the Public Guardian, seeking additional visiting rights. But he contends that the Public Guardian's officers have told him that this would not be appropriate due to a lack of staff available from Chameleon Lifestyle Services (the Public Guardian's chosen care service provider) to supervise the husband and wife together during these visits.
3. The NSW Trustee has been in communication with the husband about the management of the wife's estate. On 26 July 2016 the NSW Trustee emailed Mr Kent, the husband's solicitor requesting that he: (1) pay $37,444.23 for the care of his wife that the aged care facility claimed was then in arrears, and (2) pay a $540,000 refundable accommodation deposit (or RAD) for her continued accommodation with the aged care facility. The husband's evidence is that until receiving this email he had been unaware that either of such payments were outstanding. Nothing in the balance of the evidence before the Court contradicts the husband's evidence about this.
4. The husband cleared the first debt of $37,444.23 on 11 August 2016, using funds from his and the wife's joint savings account. The husband submits in the present hearing that he would like to pay down the second debt of $540,000 for the RAD, but that he does not currently have enough money in his bank accounts to be able do so. He submits on this appeal that it would not be financially sensible to make a part payment of the RAD before he has a plan to realise his and the wife's joint real estate assets, including certain New South Wales real estate. But the husband stated in his affidavit of 15 August 2016 that he would pay $150,000 himself towards the bond should he be appointed as the wife's financial manager.

Findings as to the husband's and the wife's financial affairs

1. The husband has given an account of the couple's financial history. The Court wholly accepts that account, which is almost entirely unchallenged but which nevertheless by reason of its internal consistency and detail is inherently credible. The husband's account and the Tribunal's Reasons are the basis of findings about relevant parts of the couple's financial affairs and their relationship, as set out in this section.
2. The husband and wife successfully acquired and developed a number of properties together during their marriage. The wife was the more financially and computer literate of the two. Until the wife's dementia supervened, she had full personal control of all the couple's financial affairs of the husband was out "in the field" doing renovations and performing in front of office work. But when the wife could no longer master transactions and accounts, the husband, with the help of his daughter and the local CBA branch, came to grips with past financial transactions and internet banking.
3. This couple were not extravagant. Their personal expenditure was not complex. They purchased groceries at supermarkets, liquor from discount liquor stores and paid their regular electricity, rates, telephone and gas bills and other ordinary household outgoings.
4. At the time the NSW Trustee was appointed to manage the wife's estate, the couple owned three properties (No 467, No 6 and No 4) and had just sold another (No 465). So as to ensure that the couple cannot be identified in these reasons these properties are only identified by portions of their street numbers.
5. No 465. The couple had just sold No 465, when the NSW Trustee was appointed. In August 2014 they received into their joint CBA Pensioner Security account the proceeds of the sale of No 465 in the amount of $487,444. The husband has fully conserved those proceeds. His account of his dealings with them is detailed elsewhere in this judgment.
6. No 467. This property was the couple's domestic residence from August 2014. The husband now lives there alone. They own No 467 as joint tenants. They had decided by 2012 to sell it and become "grey nomads", travelling together around Australia in a mobile home. To this end in 2012 they put No 467 on the market for sale. When the NSW Trustee was appointed it directed that No 467 be taken off the market.
7. No 6. The husband and wife purchased No 6 in 1998 for $90,000. At the time of the appointment of the NSW Trustee this property was still being developed.
8. No 4. The couple purchased No 4 in 2004 for $200,000. It is only a vacant block of land. The husband's son contributed half its purchase price and has 50% equity in the property.
9. The couple's history of acquisition of these properties dates back to their move into the local area. They initially lived together in Sydney. But in 1997 they took a sea change, acquiring a general store in the local area in 1998. The shop was too cramped for them both to live and work in, so they purchased No 6. But a more desirable property came on the market, No 465, which they purchased as well and moved into.
10. After many years of hard work the couple sold their shop premises in 2006, taking their first step towards retirement. Using the proceeds of sale of the shop, in 2007 they acquired No 467 for about $480,000. But they only moved into No 467 shortly before the wife's admission to hospital, just after they had sold No 465.
11. Their next step towards retirement was selling the general business they ran within the shop premises. They finally achieved this in 2010, when they accepted an offer for the purchase of the shop business for $1.076 million. After the business sale settled the couple used its proceeds to pay out mortgages on No 465 and No 467, together with their other debts and the employee entitlements of the business.
12. After the sale of the business the couple felt reasonably well off. But they were lucky as well. The wife won the Deaf Children's Charity Lottery with prize money of $350,000. Importantly, this was not by any means their largest asset. The lottery winnings made them more comfortable than they would otherwise have been. As will be seen below, the lottery winnings become a source of considerable misunderstanding among some informants about this couple.
13. This couple's successful financial history has meant that that neither of them has ever qualified under the means test for the aged pension.
14. By 2012 the couple's plan was to liquidate all their properties and move away from the local area, possibly up to Queensland, where the husband had family. They starting by putting No 467 on the market but it did not sell quickly. Selling No 6 and No 4 were also on their agenda. No 6 required renovations before going on the market: the husband planned to complete a second-storey renovation, for which they had gained development approval in the late 1990s.

The Appeal

1. Ms Soars argued the appeal on the basis of the Amended Summons (filed on 19 August 2016 during the hearing). The husband's appeal identifies a number of alleged errors in the Tribunal's Reasons on what are said to be questions of law in relation to both the financial management orders and the guardianship orders made on 19 March 2015. In the alternative, the husband seeks the Court's leave to appeal on other grounds, which require leave to adduce fresh evidence.
2. The law applicable to appeals under the NCAT Act may be shortly stated. In C v W [2015] NSWSC 1774 Lindsay J comprehensively collected the case law in relation to such appeals and explained the structure of the appellate provisions in a way that needs no further discussion. His Honour explained the relationship between this Court's jurisdiction to grant administrative law remedies and the operation of the rights of appeal under the NCAT Act in the following way in C v W at [40] - [46]: "40. The [NCAT Act] does not oust the jurisdiction of the Court to grant administrative law remedies, but confers rights of appeal that enable the Court to supervise the work of NCAT by focusing principally upon questions of principle. The primary way this is done is by the grant of an appeal "as of right" limited to a "question of law", absent a grant of "leave" by the Court for an appeal on any other ground: Schedule 6, clause 14(1)(b)." 41. Through the medium of the leave mechanism the Court controls whether, and on what terms, it engages disputes about the factual content of a case. A grant of leave to allow a merits review of a Tribunal decision does not depend upon there first being an appeal on a question of law: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245 at 257[61]. 42. In the context of an appeal from a decision of the Guardianship Division of NCAT to refuse to make a financial management order under the Guardianship Act, clause 14 of Schedule 6 to the NCAT Act, and the general law relating to appellate interference with discretionary decisions, provide three interrelated and overlapping gateways through which an appellant who challenges the NCAT decision may have to navigate. 43. First, absent a grant of leave, an appeal under clause 14(1)(b) is limited to an appeal "on a question of law". What is meant by the expression "a question of law" in this context may be conveniently explained by: (a) seminal observations made by Young J in Re R [2000] NSWSC 886 at [24]-[25] in the context of an appeal on a question of law, under section 67 of the Guardianship Act, from the Guardianship Tribunal; and (b) a more recent collaboration of the law, to much the same effect, by an Appeal Panel of NCAT (constituted by R Seiden SC and D Goldstein) in Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [11]-[13] in the context of an "internal appeal" for which section 80(2) of the [NCAT Act] provides in terms similar to those found in Schedule 6 clause 14(1) of the Act. 44. Secondly, if leave is to be granted pursuant to clause 14(1)(b) for an appeal on a ground other than a question of law, the Court generally needs to be satisfied that there is a question of principle or policy, or a manifest error in the decision or decision-making process under review, which merits a grant of leave: Collins v Urban [2014] NSWCATAP 17 at [82]-[84], qualified, in cases involving an exercise of the Court's protective jurisdiction, by observations made in P v NSW Trustee and Guardian [2015] NSWSC 579 at [191]. 45. Thirdly, given the broad evaluative or discretionary content of a decision to make, or to decline to make, a financial management order, appellate interference with such a decision will generally require identification of an error of principle or the like: House v The King (1936) 55 CLR 499 at 504-505. 46. The terms in which these distinct gateways to appellate review are expressed should not be overlooked. They all point in the direction of requiring identification of some error beyond a mere error of fact."
3. But what is a question of law for the purpose of this appeal? Young J explained in this context what might qualify as a question of law in the following way, in Re R [2000] NSWSC 886, at [24]-[25]: "[24] The appeal is an appeal on a question of law only. It is sometimes quite difficult to separate out what are matters of fact and what are matters of law. In dealing with an appeal from a Tribunal of this nature, as is said in Wade and Forsyth, Administrative Law (Oxford University Press, 1994) 7th Edition at page 945: 'It is of great importance that it [the right of appeal on a point of law] should be generally available, so that the courts may give guidance on the proper interpretation of the law and so that there may not be inconsistent rulings by tribunals in different localities. It is through appeals that the courts and the tribunals are kept in touch, so that the tribunals are integrated into the machinery of justice.' This is the prime reason why there is an appeal as of right. [25] Just what is in the category of a question of law is sometimes hard to decide. However, generally speaking the matter is quite clear. If there is a question as to the meaning of an Act in the circumstances, if there are other questions of construction of the law or vital agreements, if there is a finding of fact made of which there is no evidence to support it or perhaps if so much irrelevant material enters into the decision making process that it is a nullity, then one has a question of law. Outside that field, normally one has a question of fact. This is so even if there is a finding of fact which is against the evidence and the weight of the evidence: Haynes v Leves (1987) 8 NSWLR 442, 469 at 470. This is an oversimplification, but, generally speaking, is the way in which the distinction operates.'"
4. Finally, the Tribunal's own appeal panel has conveniently collected some applicable law upon many of the possible questions of law that commonly arise on appeals such as this, for the purposes of assessing the Tribunal's internal appeals. But the summary is also useful for present purposes, because it is drawn upon from the general law which also applies to appeals to this Court. In Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13] the Appeal Panel of the Tribunal expressed that summary in the following way: "'13. Without expressing exhaustively possible questions of law, they include in no particular order: 14. Whether there has been a failure to provide proper reasons: Stoker v Adecco Gemuale Constructions Pty Ltd [2004] NSWCA 449 per Santow JA at [41];Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444 per Meagher JA; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56] per McColl JA (Ipp JA and Bryson AJA agreeing); Qushair v Raffoul [2009] NSWCA 329 at [52] and the following paragraphs, per Sackville AJA (Campbell JA and Bergin CJ in Eq agreeing). Section 62 of the [NCAT Act] requires the Tribunal to furnish reasons. This requirement was earlier reflected in s 49 of the Consumer, Trader and Tenancy Tribunal Act 2001 (NSW). Recently, the Appeal Panel (Wright J, President; G Walker, Senior Member; and M Bolt, General Member) in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6 said in relation to the similar provision in s 89 of the Administrative Decisions Tribunal Act 1997 (NSW) at [32]: 32 Notwithstanding the words in the chapeau to subs (5), there is no reason as a matter of principle why the requirements set out in that subsection do not apply equally to reasons for decision which were not given as a result of a request under subs (3). Further, given the right of appeal from a decision of the ADT to the Appeal Panel under s 113 of the ADT Act and from the Appeal Panel to the Supreme Court on a question of law under s 119 of that Act, the Tribunal's obligation to give reasons should be commensurate with that of courts whose decisions are subject to appeal to the Supreme Court - see generally the discussion of principles in Campbelltown City Council v Vegan (2006) 67 NSWLR 372. As this matter was not the subject of any substantial submissions by the parties, however, it is inappropriate to deal with the topic in more detail and it can be accepted for the purposes of this appeal that the Tribunal was obliged to give proper reasons for its decision. Such reasons would include making findings on material questions of fact, referring to the evidence on which those findings were based, setting out the Tribunal's understanding of the applicable law and explaining the reasoning processes that lead the Tribunal to the conclusions it made. In assessing such reasons, however, it is appropriate to bear in mind the High Court's endorsement of the view that in the case of administrative decision makers this assessment is not best approached with an "eye keenly attuned to the perception of error": see Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 15. Whether the Tribunal identified the wrong issue or asked the wrong question: Craig v State of South Australia (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. (16) Whether a wrong principle of law had been applied: Chapman v Taylor [2004] NSWCA 456 at [33], per Hodgson JA (Beazley and Tobias JJA agreeing). (17) Whether there was a failure to afford procedural fairness: Italiano v Carbone [2005] NSWCA 177; Clements v Independent Indigenous AdvisoryCommittee[2003] FCAFC 143 at [8]. Section 38 of the [NCAT Act] prescribes the procedure of the Tribunal generally. Relevantly, s 38(2) expressly requires the Tribunal's procedures to accord with natural justice. Sub-sections 5 and 6 also embody aspects of procedural fairness. These rules were previously reflected in s 28 of the Consumer, Trader and Tenancy Tribunal Act (NSW). Procedural fairness concerns the fairness of the proceedings and not the decision: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th Ed; (2009) Lawbook Co at [7.20]. (18) Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24. This was recently the subject of consideration by the Appeal Panel in Director General, Department of Finance & Services v Porter [2014] NSWCATAP 6. It was said at [26] to [29] as follows: 26 Failure to take into account a relevant consideration which the decision maker was bound to take into account is an error of law (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-6) 162 CLR 24 at 39 per Mason J). 27 Determining what is to be taken into account when making a decision is a matter of construction of the statute conferring power. Where the relevant matters are not expressly set out those matters are determined by implication from the subject matter, scope and purpose of the conferring statute: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39-40 per Mason J. What weight the Tribunal should give to those considerations is, however, generally a matter for the Tribunal (at 41 per Mason J). 28 Whilst the question of weight is one for the Tribunal, the Tribunal will not have given adequate attention to a relevant consideration where its process is merely a formulaic reference: see Azriel v NSW Land & Housing Corporation [2006] NSWCA 372 at [49] per Basten JA (with Santow and Ipp JJA agreeing). Instead what is required can be described as a proper, genuine and realistic consideration of the relevant consideration: Bruce v Cole (1998) 45 NSWLR 163 at 185-6 per Spigelman CJ. However, as Basten JA warned in Azriel at [51] referring to Spigelman CJ in Bruce at 186, assessing whether the decision-maker has given a proper, genuine and realistic consideration to a mandatory matter must be approached with caution, with care to avoid an impermissible reconsideration of the merits of the decision. 29 In assessing a purported failure to take into account a relevant consideration a mere failure to refer expressly to a matter will not necessarily justify an inference that there has been a failure to take into account a relevant consideration. Despite this, such an inference is still open to be drawn by the Tribunal in those circumstances: see Australian Conservation Foundation v Forestry Commission (1988) 19 FCR 127 at 132 per Burchett J. In determining whether or not to draw the inference that failure to deal at all or in detail with a relevant consideration gives rise to an error by the decision-maker, the extent to which the facts and circumstances of the particular matter engage that consideration will be relevant and often determinative. Further, in the context of an appeal from a decision of an administrative review tribunal, such as this appeal, the nature and scope of the submissions put to the tribunal at first instance may also inform that process of determination. (19) Whether the Tribunal took into account an irrelevant consideration, as explained in Peko-Wallsend per Mason J at 40: In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard ... (20) Whether there was no evidence to support a finding of fact: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; The Australian Gas Light Company v Valuer-General (1940) 40 SR (NSW) 126 at 138. (21) Whether the decision is so unreasonable that no reasonable decision-maker would make it: Associated Provincial Picture Houses Ltd v Wednesday Corp (1947) 45 LGR 635; Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86 at [10]; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.'"
5. The husband identifies ten grounds upon which he contends the Tribunal erred in law, when rejecting his application for financial management of the wife's estate and affirming the appointment of the NSW Trustee as her financial manager. These ten grounds are dealt with in groups below, followed by the seven grounds, also grouped, on which the Tribunal is said to have erred in law in relation to the guardianship order.
6. But before considering the appeal it is useful to review the statutory structure leading to the Tribunal's orders.
7. The Court has decided to deal with this appeal by way of a new hearing: NCAT Act, Schedule 6, clause 14(3). The Court's consideration of the grounds of appeal below warrants a new hearing, at least to re-examine the materials available to the Tribunal in light of fresh evidence. The events occurring since the Tribunal held its last hearing on 23 February 2016 are material to the issues that the Court has to decide and they require the Court to re-weigh the relevant considerations in this matter. Most of the material available to this Court was the same as the material before the Tribunal, with the exception of important updating affidavits of the husband of 15 August 2016 and the husband's solicitor, Mr Rodney Kent, of 29 July 2016. The Court permitted this fresh evidence to be read as appropriate in the circumstances as it related to events since the Tribunal's decision: NCAT Act, Schedule 6, clause 14(3)(b).

Grounds of Appeal relating to financial management orders

General Principles Applicable to the Exercise of Guardianship Act Functions

1. Both in relation to the financial management orders and the guardianship orders under appeal, the Court is exercising functions under the Guardianship Act of the appeal. The Court must therefore apply the command of Guardianship Act, s 4, which provides 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."
2. These principles are examined closely later, as they apply in this case to the Court's functions not only in relation the financial management orders but also the guardianship order.

Legislation relevant to the financial management orders

1. The Tribunal is empowered to make financial management orders in accordance with Guardianship Act, Part 3A. The Tribunal may exclude a specified part of a person's estate from a financial management order: Guardianship Act, s 25E. The Tribunal may make a financial management order in connection with the making of a guardianship order under Guardianship Act, Part 3 in respect of the person concerned: Guardianship Act, s 25F.
2. The grounds for the making of a financial management order are specified in Guardianship Act, s 25G as follows: "25G Grounds for making financial management order The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that: (a) the person is not capable of managing those affairs, and (b) there is a need for another person to manage those affairs on the person's behalf, and (c) it is in the person's best interests that the order be made."
3. An application to the Tribunal for a financial management order may be made by the NSW Trustee, or the person who is the subject of the application or any person who in the opinion of the Tribunal has a genuine concern for the welfare of a person who is the subject of the application: Guardianship Act, s 25I.
4. But the legislation places limits on the extent to which financial managers may deal with the estate concerned. Guardianship Act, s 25M provides as follows. "25M Tribunal may commit estate of protected person to management (1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order: (a) appoint a suitable person as manager of that estate, or (b) commit the management of that estate to the NSW Trustee. (2) Despite section 61 of the [NCAT Act], an order under subsection (1) (a) does not authorise the person appointed as manager to interfere in any way with the estate concerned unless: (a) such directions of the Supreme Court as are relevant to the management of the estate have been obtained, or (b) the NSW Trustee has, under Division 2 of Part 4.5 of the NSW Trustee and Guardian Act 2009 , authorised the person to exercise functions in respect of the estate. (3) However, the person appointed as manager may take such action as may be necessary for the protection of the estate (including action specified by the Tribunal) pending the directions of the Court or authorisation by the NSW Trustee."
5. Guardianship Act, Part 3A, Division 2 provides for the review and revocation of financial management orders. The Tribunal may order the financial management order may be reviewed within a specified time and the requirement for the review may be contained in the financial management order itself or in a subsequent order: Guardianship Act, s 25N. The Tribunal may of its own motion and must on hearing an application s 25R, review a financial management order: s 25N.
6. The protected person concerned, the NSW Trustee, the manager of the estate of the protected person, and any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the protected person, are entitled to apply for an order revoking or varying the financial management order: Guardianship Act, s 25R. On review the Tribunal must vary, revoke or confirm the order and may review its appointment of a particular manager of the protected person's estate: Guardianship Act, s 25P.
7. Division 3 deals with the review of the appointment of managers. The Tribunal may on review of the appointment of manager of a protected person's estate take the following actions: "25U Action on review (1) On reviewing its appointment of the manager of a protected person's estate, the Tribunal may: (a) revoke the appointment, or (b) confirm the appointment. (2) The Tribunal may also review the financial management order under which the manager was appointed, and may take any action in respect of that order that it may take on a review of such an order under Division 2. (3) If the relevant financial management order is not revoked under subsection (2), the Tribunal is to appoint another person as manager of the estate subject to the order in substitution for a person whose appointment as manager has been revoked under this section. (4) The Tribunal may revoke the appointment under review only if: (a) the person appointed seeks the revocation, or (b) the Tribunal is satisfied that it is in the best interests of the protected person that the appointment be revoked, or (c) the financial management order in respect of the estate concerned is revoked. Note: Section 25Q provides for the disposal of the estate on revocation of a financial management order."
8. This is sufficient background to the relevant legislation to consider the grounds of appeal in relation to financial management orders.

Ground 1 - (Amended Summons, Prayer for Relief 1) the Tribunal applied the wrong principle of law to the application, to vary the financial management order to change the wife's financial manager

1. The husband contends under Ground 1 that the Tribunal applied wrong principles of law in reasoning to its conclusion that it should not revoke the existing financial management orders in favour of the NSW Trustee over the wife's estate. The starting point is to identify the parts of the Tribunal's findings challenged under this ground of appeal. The husband identifies paragraphs [132], [158], [163], [166], [169] and [171] of the Reasons.
2. The Tribunal concluded that it would not be in the wife's best interests to revoke the appointment of the NSW Trustee as her financial manager and that even if the NSW Trustee's appointment were revoked, it would not be in the wife's best interests for the husband to be appointed as her financial manager in its stead: Reasons at [171].
3. The Tribunal posed (at [132]) the questions: (1) whether it was in the best interests of the wife to revoke the NSW Trustee's appointment; and (2) if so, who should be appointed financial manager; and, (3) if not, should the NSW Trustee's appointment be confirmed.
4. The Tribunal identified that the applicable principle is that the dominant consideration in making orders about financial managers was the welfare of the person whose estate is in need of management, citing Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, at 241 the Tribunal noted (at [158]) that an applicant need only show "some reason", as opposed to a "clear and convincing" case, that the form of proposed financial management orders would better advance the interests of the protected person.
5. The Tribunal accepted by the time of its decision on 23 February 2016 that the husband had standing to appear at the 19 March 2015 hearing but found that in February 2016 it would nevertheless be unsuitable for the husband to be appointed as the wife's financial manager. The Tribunal reasoned (at [166]), that in the then "current circumstances" of February 2016 the husband would be in a position of potential conflict of interest in respect of making legal and financial decisions on her behalf. "[166] When the financial management order was made on 19 March 2015 [the husband] had not been identified as a party. He had not been advised of, and was not present at the hearing. The Reasons for Decision of the Tribunal on that occasion indicate that at that time the Tribunal was unaware of the appointment of [the husband] as [the wife's] attorney. The Tribunal is now aware of that appointment, but for the reasons outlined above, the Tribunal is of the view that [the husband] would be faced with a conflict of interest in respect of making legal and financial decisions for [the wife] under the current circumstances."
6. The Tribunal then reached its ultimate conclusion (at [171]) through paragraphs [167] - [172] of its Reasons as follows: "[167] In statements to the Tribunal dated 23 September 2015 and 14 November 2015 [the husband] provides detailed responses to matters raised in the documentary evidence provided to the Tribunal for the hearing conducted on 19 March 2015 and also to the matters raised in the Tribunal's Reasons for Decision on that occasion. [168] In her submissions, counsel for [the husband] submitted that had [the husband] been present at the hearing on 19 March 2015 the current situation would not have eventuated. The Tribunal has no way of knowing if that assertion is correct. [169] The current hearing is not an appeal against the decision made on 19 March 2015. It is the role of the Tribunal at this hearing to make a decision that is currently in the best interests of [the wife]. [170] Taking all of these matters into account the Tribunal is not satisfied that if it were to revoke the appointment of the [NSW Trustee] as the financial manager it would be in the best interests of [the wife] to appoint [the husband] as the financial manager, or that there was another private person available who could be appointed as the financial manager. [171] Taking into account all of the evidence, the Tribunal: (1) Is satisfied that it is not in the best interests of [the wife] to revoke the appointment of the [NSW Trustee] as [the wife's] financial manager, and (2) Is satisfied that it would not be in the best interests of [the wife] to appoint [the husband] as her financial manager if it were to revoke the appointment of the [NSW Trustee] as the financial manager. [172] Having reached the conclusions noted in the preceding paragraph, the Tribunal confirmed the appointment of the [NSW Trustee] as the manager the estate of [the wife]."
7. The Tribunal's omnibus statements "Taking all these matters into account…" and "Taking into account all the evidence…" make it difficult, other than by looking at its findings elsewhere in the Reasons, to understand why it was satisfied that it was not in the best interest of the wife to revoke the NSW Trustee's appointment.
8. The Tribunal was correct (at [168]) that it would have been an unnecessary inquiry for the Tribunal to investigate whether, had the husband been present at the 19 March 2015 hearing, the result would have been different. Generally, to establish a denial of procedural fairness it is not necessary for an applicant for relief to show that the deficiency in procedural fairness would have made a difference to the outcome: see Minister for Immigration and Border Protection v WZARH [2015] HCA 40 at [58] and (2015) 256 CLR 326, at 342, per Gageler and Gordon JJ.

Consideration of the Husband's Submissions - Ground 1

1. The first step in the husband's submission is his contention that he was wrongly excluded from the 19 March 2015 hearing. He submits that he had party status in the guardianship and financial management proceedings before the Tribunal on 19 March 2015, on three grounds: (1) as the spouse of the wife with a close and continuing relationship (s3F(2)(c) and s3F(5)(c)); (2) as "the person who had the care of" the wife (s3F(2)(d) and s3F(5)(d)); and with respect to the financial management orders, (3) as the holder of the wife's enduring power of attorney that is in force (s3F(5)(e)). He argues that he was not informed of that hearing and as a result he was precluded from putting his case to the Tribunal that he should be appointed as the wife's financial manager.
2. The husband makes out this first step. It is not in contest that the husband was not informed of, or present at, the 19 March 2015 hearing. Yet he qualified for party status on both the financial management and the guardianship applications being pursued that day. On the financial management application, the Tribunal found in its Reasons (at [4]) the undisputed fact that the wife had appointed the husband as her enduring attorney. He thereby automatically qualified for party status on the financial management application. That thereby entitled him to be present at the time of both applications, as they were heard together. Unfortunately the Tribunal was unaware of the grant of the enduring power of attorney to the husband: Reasons at [166].
3. On the guardianship application, the husband was in any event "the person who had the care of" the wife at the time of the application. He certainly had her care until 19 October 2014. The only legal basis on which he had not had access to her to continue his care for her after 19 October 2014 was the interim AVO, which did not ultimately proceed on the wife's behalf for want of her evidence. The precise legal basis on which the various persons sheltering the wife were denying the husband access to her in the period after the dismissal of the AVO on 20 February 2015 and before the 19 March 2015 Tribunal hearing is obscure. It does not emerge from the Tribunal's Reasons. The lack of continuing legal justification for her removal from his company was never tested, for example by a writ of habeas corpus. But in my view the continuing intervention of these persons after the dismissal of the AVO, did not disqualify the husband from being a person "who had the care of" the wife, as at the 19 March 2015 hearing. And the Tribunal took the same view, concluding on 2 October 2015 that he qualified for party status as her carer: Reasons at [13] (2).
4. Moreover, his status as the wife's spouse was not in dispute. In my view he also qualified for party status on both applications on that ground. The Court's findings on this appeal, set out elsewhere in these reasons, well justify the conclusion that the husband had a "close and continuing relationship" with the wife. Although the Tribunal concluded otherwise, in part because of the external interventions between the couple between October 2014 and March 2015.
5. The husband's exclusion from the 19 March 2015 hearing denied him procedural fairness. The Tribunal acknowledged as much in the Reasons (at 13). In my view this had the consequence that had the husband made an application for appropriate declaratory relief soon after the 19 March 2015 hearing, then that hearing could have been declared to be without legal foundation and to be no decision at all: Minister for Immigration v Bhardwaj [2002] HCA 11 and (2002) 209 CLR 597.
6. Should the husband have been given notice of the 19 March 2015 hearing? It is not strictly necessary to answer this question now. But in my view he should have been given the opportunity to argue his party status either on or before that day. It should have been clear to the Public Guardian and the NSW Trustee at least that the husband may arguably qualify for party status, as the wife's spouse and as her carer. Had notice of the hearing been given to him it would have become quickly clear that he had indisputable party status as the holder of an enduring power of attorney. Both efficiency and fairness suggest that notice of the 19 March 2015 hearing should have been given to him.
7. The husband next submits that once it is accepted that the husband had been denied procedural fairness at the original 19 March 2015 hearing, then the hearing on 23 February 2016 should have been conducted differently from the way it was actually conducted.
8. The husband's submission to this effect proceeded as follows. The Tribunal accepted that the 23 February 2016 hearing was not an appeal from the decision made at the 19 March 2015 hearing. This acceptance in turn means, so the husband submits, that the proper test for the Tribunal to apply to the husband's application for appointment as the wife's financial manager, was the test that should have been applied by the Tribunal at the 19 March 2015 hearing. Therefore on 23 February 2016 the matter should have been looked at entirely afresh.
9. But the husband submits, the Tribunal did not look at the matter afresh. Because of that failure, he submits that, the Tribunal's reasons for the 23 February 2016 decision reflect a number of related errors of principle. It is well established that the Tribunal may err in law if it applies an incorrect principle: C v W [2015] NSWSC 1774, Lindsay J at [49]. The husband's submissions elaborated upon the various alleged errors as follows: 1. The correct test should have been, but was not, applied to the husband's application to change the financial manager was the same test that would be applied to determine who should initially have been appointed as financial manager; 2. The Tribunal was required to take into account Guardianship Act, s 4(e), the importance of preserving family relationships but did not do so; 3. The Tribunal should have reasoned on the basis that the husband bore no forensic onus to vary the financial management order, to change the financial manager but in substance assumed the husband did have a forensic onus; and 4. The Tribunal should have applied, but did not apply, the principle that the appointment of the NSW Trustee to a relatively small estate ($1 million or less) is a last resort.
10. The husband's elaboration upon each of his four submissions follows.
11. (1) Apply the same Test as upon an Initial Appointment. The husband agrees with the Tribunal that the dominant consideration should be the welfare of the wife, as she is the subject of the financial management order. But the husband contends that the Tribunal did not properly consider his case in relation to this issue. The husband argues that a family member should have been appointed, as such a person would have a lifetime of knowledge of the wife and a natural devotion to her interests: Holt v Protective Commissioner (1993) 31 NSWLR 227 ("Holt"'); EB v Guardianship Tribunal [2011] NSWSC 767 ("EB"), per Hallen AsJ at [141]. He further contends that there are inherent advantages in having a family member act as a financial manager where an estate is relatively modest, where there exists no conflict of interest or duty, where there is a relationship of love and affection between the manager and managed (P9/2000 [2011] NSWSC 49 at [21]-[24], EB, per Hallen AsJ at [142]); and where that family member has an understanding of the need to act protectively in relation to the estate and has a strong knowledge of the estate to be managed: EB at [146] and JAB [2010] WASAT 97 at [71] - [72]. The husband also argues that where the Public Guardian is appointed but on balance it is in the interests of the beneficiary that some other suitable person is appointed, the Court is duty bound to appoint that other person: Holt at 239; EB at [145].
12. (2) Guardianship Act, s 4(e). The husband submits that the Tribunal should have taken into account the "mandatory consideration" of the importance of preserving family relationships in making its decision: Guardianship Act, s 4(e). But he submits this is not part of the Tribunal's reasoning.
13. (3) The Husband Bears No Forensic Onus. The husband submits that on the facts of this case the Tribunal should have reasoned that the husband bore no forensic onus regarding his application to vary the wife's financial management order. To explain the difference in approach that is required, the husband cites M v M [2013] NSWSC 1495 at [50(l)], in which it was noted that "a decision about whether a manager should be replaced may need to be approached differently from one made about the identity of an appointment as an initial manager because of a perceived need to identify an acceptable reason [for the replacement]… depending on the facts of the particular case this may, but will not necessarily, involve recognition that an applicant for change bears, at least, a forensic onus to establish a case for change".
14. (4) NSW Trustee the Manager of Last Resort. The husband submits that the Tribunal should have applied the principle that the appointment of the NSW Trustee to manage the wife's estate, given its relatively small size, should be a measure of last resort: Re X [2016] NSWSC 275, Lindsay J at [32].
15. The husband's submissions state the law correctly. The Tribunal was obliged to apply these principles. The question is whether it failed to do so, and if so, what were the consequences of that failure.
16. The Tribunal's observation (Reasons at [169]) that the February 2016 hearing "is not an appeal against the decision made on 19 March 2015", should not be to quickly construe as the Tribunal expressly declaring that its powers to deal with the husband's application for review of the 19 March 2015 financial management order were limited in a way that might not have been limited on an appeal from that order. In its thorough Reasons the Tribunal seems really to have been making the unexceptional observations: that on the review it had to apply the ss 25P(2)(b) and 25U(4)(b) "best interests of the protected person" test, in deciding whether to revoke the existing order or to revoke the appointment of the appointed financial manager, the NSW Trustee; and that a similar "best interests" test applied under s 25G(c) to the making of original financial management order.
17. But the Tribunal's reasoning (at [132] and [170]) shows that whilst applying the "best interests of the protected person" test, it posed to itself and then answered the question: whether the existing orders should be revoked. Was the Tribunal right to analyse its task as one to decide whether or not "to revoke" the existing financial management order and the existing appointment of the NSW Trustee?
18. The Tribunal's comment that the 23 February 2016 hearing "is not an appeal" against the 19 March 2015 decision, together with the Tribunal posing the question to be answered as one of revocation or not, does indicate that the Tribunal was treating the 19 March 2015 decision as valid. Indeed the balance of its reasoning shows that it was taking this approach. The undoubted denial of procedural fairness to the husband leading to the jurisdictional error in the Tribunal's making of the 19 March 2015 decision means that on appeal from that decision it would be treated as no decision. But, the Tribunal should have treated the 19 March 2015 decision as in substance no decision at all and constructed its reasoning accordingly, and differently, from the way that it did.
19. Administrative lawyers have long had to grapple with the problem of how to treat administrative decisions that involved jurisdictional error before those decisions are actually set aside by a Court. The Tribunal was here confronted with just this problem. In Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416, at 420, Jordan CJ stated that a constructive failure to exercise jurisdiction left "the jurisdiction in law constructively unexercised": see also Posner v Collector for Interstate Destitute Persons (Vict) (1946) 74 CLR 461 at 483 per Dixon J; Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473 at 483 per Gibbs J; and Re Coldham; Ex Parte Brideson (1989) 166 CLR 338 at 349-350 per Wilson, Deane and Gaudron JJ.
20. In 2002 the High Court re-stated the applicable law in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (at 614-616); [2002] HCA 11 at [51] - [53] as follows: "Decisions involving jurisdictional error: the general law [51] There is, in our view, no reason in principle why the general law should treat administrative decisions involving jurisdictional error as binding or having legal effect unless and until set aside. A decision that involves jurisdictional error is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all. Further, there is a certain illogicality in the notion that, although a decision involves jurisdictional error, the law requires that, until the decision is set aside, the rights of the individual to whom the decision relates are or, perhaps, are deemed to be other than as recognised by the law that will be applied if and when the decision is challenged. A fortiori in a case in which the decision in question exceeds constitutional power or infringes a constitutional prohibition. [52] The view that a decision involving jurisdictional error does not prevent the decision-maker from correcting that error by making a later decision has been accepted by the Supreme Court of Canada. Thus, in Chandler v Alberta Association of Architects [1989] 2 SCR 848 at 861-862, Sopinka J, with whom Dickson CJ and Wilson J concurred, said: "As a general rule, once [an administrative] tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances ... To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law." In the same case, his Lordship cited with approval a statement by McLachlin J that: "as a matter of logic and on the authorities ... a tribunal which makes a decision in the purported exercise of its power which is a nullity, may thereafter enter upon a proper hearing and render a valid decision". [53] In our view, logic and legal principle both direct the conclusion that the approach of the Supreme Court of Canada is correct. As already pointed out, a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. And that is so, regardless of s 33(1) of the Acts Interpretation Act."
21. Here, in my view, the Tribunal should have expressly stated that the 19 March 2015 decision was in substance no decision and then clearly reasoned on the basis that the task for the Tribunal was now to discharge a duty to make a decision whether or not to appoint a financial manager for the wife, which duty that at that point remained unperformed.
22. In my view this conclusion is not altered by the fact that the 19 March 2015 decision had been continued by another decision on 3 December 2015: this later decision also assumed the validity of the original decision.
23. It does not make any difference to this analysis that this present proceeding is not an appeal from the original 19 March 2015 decision. This Court has the full range of powers to do justice between these parties and if necessary to make a declaration as to a denial of procedural fairness in respect of the 19 March 2015 decision. But the Tribunal itself had the practical power under Guardianship Act, ss 25 and 25C, for example, to treat the 19 March order as suspended, for example, and then proceed to make a decision for the first time. That the Tribunal posed itself a question couched in the language of revocation does not necessarily indicate error of principle. But such error would be shown were the Tribunal not to clearly recognise that it was now making the decision for the first time, because the duty to make that decision remained in substance unexercised. In my view the Tribunal did indeed fail to do this.
24. It is not necessary further to consider at this point all of the husband's above four arguments, beyond the conclusions already drawn. What decision that should have been made had the Tribunal applied the same test, as if upon his initial appointment, need not be considered. But this Court upon the re-hearing on this appeal does consider the application of the initial appointment test later in these reasons. There, issues such as whether the NSW Trustee was a manager of last resort or whether family members should be appointed who have strong knowledge of the estate to be managed are considered. All that need be concluded at this point is that the husband's argument is correct because the 19 March 2015 decision was in substance no decision. The warning in M v M [2013] NSWSC 1495 (at [50(i)]) was apposite: the Tribunal needed to be careful to approach the question of appointment of the wife's financial manager, as if it were appointing an initial manager rather than contemplating the replacement of an existing manager. Nowhere in its Reasons did the Tribunal do this and in my view it therefore fell into error and its decision should be set aside.

Grounds 2 and 3 - (Amended Summons, Prayers for Relief 2 to 4) The Tribunal applied wrong principle when considering whether the husband would have a conflict of interest as financial manager and made an unreasonable decision in concluding he did

1. The Tribunal found that it would be unsuitable for the husband to be appointed as the wife's financial manager due to his having a "conflict of interest" under "the current circumstances" in making legal and financial decisions on her behalf: Reasons at [166].
2. The husband challenges the Tribunal's reasoning in reaching this conclusion, contending that it had erred in law: by applying a principle that the husband should not be appointed as the wife's financial manager if he had a "conflict of interest"; and that the Tribunal should have applied an undue conflict of interest" test instead. The husband also challenged this aspect of the Tribunal's decision on "Wednesbury unreasonableness" grounds (Associated Provincial Picture Houses Ltd v Wednesbury Corp ("Wednesbury") (1947) 45 LGR 635; [1947] 2 All ER 680). The Tribunal's more detailed reasons for reaching this conclusion are at [164] and [165]: "164. The Tribunal considered the circumstances that would pertain if it were to revoke the appointment of the NSW Trustee and consider the appointment of [the husband]. In this context: (1) The NSW Trustee has instructed a solicitor to act for [the wife] regarding a possible property settlement with [the husband] and initial steps have been commenced in respect of that matter. (a) This Tribunal is not able to assess whether or not that matter should proceed but is of the view that it is in the best interests of [the wife] that the matter be fully canvassed and appropriately dealt with. (b) The Tribunal is satisfied on the evidence of [Ms M] that the NSW Trustee has sought advice from an external solicitor regarding this matter and should it continue to manage [the wife's] affairs, will make a decision based on advice about whether or not to progress a claim. (c) Whilst counsel for [the husband] submitted that the current pause in progressing this matter indicates that the NSW Trustee is willing to 'give up' the matter if [the husband] were appointed as the financial manager, the Tribunal is not convinced that this is an accurate characterisation of the current circumstances. The Tribunal is satisfied that the better view is that the current pause recognises that the matter would not go ahead if [the husband] were appointed as the manager and therefore funds may be expended unnecessarily in pursuing the matter until the outcome of the hearing is known. (2) The Tribunal is of the view that if [the husband] were appointed as the financial manager it would not be possible for the property settlement issue to be adequately addressed because [the husband] would be in the position of contemplating action in which he would be both the defendant in any proceedings and the plaintiff in his capacity as [the wife's] financial manager. 165. During the hearing counsel for [the husband] and the separate representative for [the wife], raised possible arrangements that might remedy the issue raised in the preceding paragraph. (1) It was suggested that Mr Kent might be appointed as the financial manager on the understanding that he would not be remunerated unless with the consent of the Supreme Court. This suggestion was problematic as Mr Kent would be conflicted in a similar fashion as [the husband] since he is [the husband's] solicitor and would need to act on [the husband's] instructions. (2) It was suggested that [the husband] might be directed to seek separate legal advice regarding the property settlement matter, leaving Mr Kent to manage [the wife's] affairs generally and her interests in that matter. However Mr Kent has acted as [the husband's] solicitor in all matters before the Tribunal and the Tribunal was not satisfied in those circumstances that it would be appropriate for Mr Kent to now be asked to represent [the wife's] interests in respect of a possible property settlement application. (3) It was mooted that the NSW Trustee could retain management of the estate whilst excluding from management all the joint assets so that the NSW Trustee was effectively left with management of the property settlement issue only, leaving [the husband] to manage the joint property. However the Tribunal was not satisfied that under those arrangements the NSW Trustee would have access to necessary funds to mount an action if it decided to do so, and also was not satisfied that under these circumstances it would be appropriate for [the husband] to manage the estate pending a possible property settlement application."
3. The Tribunal acknowledged (Reasons at [166]) that it had been unaware during the 19 March 2015 hearings of the husband's appointment as the wife's enduring attorney. But the Tribunal said it nevertheless remained of the view that in the current circumstances the husband would still be faced with a conflict of interest in making legal and financial decisions for the wife, which justified the Tribunal's decision to reject his application for financial management.

The Husband's Submissions - Grounds 2 and 3

1. The husband submits that the Tribunal erred in law when rejecting his application on the grounds of a "conflict of interest". The husband contends that he should only have been precluded from being the wife's financial manager if it could be shown that: (1) there existed an "undue conflict of interest" that could not be avoided or properly dealt with; or, (2) as the wife's financial manager, the husband would have been faced with conflicts of interest that were not minimal and were unable to be dealt with by appropriate measures.
2. The husband submits that the test for ascertaining whether or not there is a conflict of interest, where applications for guardianship and financial management are being conducted concurrently, should mirror the statutory test for conflicts of interest that it applies for guardianship orders pursuant to Guardianship Act, s 17(1). This test, if applied to an application for financial management, would be that an applicant may successfully be appointed as a financial manager in circumstances where there is "no undue conflict": IR v AR [2015] NSWSC 1187 ("IR") at [32] and [33]. A conflict is "undue" in the context of Guardianship Act, s 17(1)(b) in circumstances where it is reasonably likely to an unacceptable degree that a conflict exists that would impede the proposed financial manager's performance of the duties: IR at [35]. The husband denies that such circumstances exist here.
3. The husband contends that applying the test for guardianship order applications to financial management order applications is not novel. The husband contends that such cross-fertilisation of legal principle is supported by authority. The husband cites Young J's statement in Re L [2000] NSWSC 721 at [10] - [12] that, "In the case of a relative, the Court must look to see that there are minimal conflicts of interest, or, if conflicts of interest cannot be avoided, that they are properly dealt with. In the case of a private manager who purports to have financial expertise, the Court needs to be satisfied not only of that person's good fame and character and of his or her ability generally to manage funds, but also that that person has a good conception as to what is required of a fund manager".
4. The husband submits: that in cases involving close family members, such as spouses, some conflicts are bound to arise; but that should not disqualify the family member from acting unless the conflict is "undue" in the sense indicated. Moreover, regulatory regimes for the supervision of financial managers provide a means to minimise otherwise unacceptable conflicts impinging upon a fiduciary relationship: Re X [2016] NSWSC 275 at [53] per Lindsay J, citing Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 at [143] - [190].

Consideration - Grounds 2 and 3

1. The Tribunal's Reasons found a conflict of interest, because of the perceived need for a decision to be made whether or not to pursue a Family Law Act (Cth), s 79 application against the husband. The Tribunal reasoned that the conflict so found meant that the husband should not be appointed as the wife's financial manager.
2. But the Tribunal's Reasons do not examine whether there is a proper basis for assuming that a Family Law Act, s 79 application should be brought for the wife. The Tribunal's judgment assumes that a decision needs to be made about whether or not to pursue such an application, thereby creating a conflict because the husband would have to decide whether or not to commence litigation against himself. But the first question to be addressed is whether a decision was necessary about bringing such an application.
3. Why such an application was even in contemplation is not obvious. Here the husband and wife had a 20-year marriage and a 32-year relationship. The husband does not want a divorce or any marital separation. There is no evidence of the husband or the wife initiating a separation or a property settlement before her incapacity supervened. The marital separation which occurred in October 2014 was involuntary. The wife lacks legal capacity herself now to initiate divorce proceedings or property settlement proceedings.
4. A possible Family Law Act, s 79 application should have been assessed as a potential remedial solution to some identified problem, before a conclusion could be drawn that there was a conflict between his and her interests, whether "undue" or not.
5. The Tribunal's reasoning on conflict of interest is contained within Reasons [164] - [166]. The reasoning demonstrates a number of errors in my view. The first error follows from this Court's conclusions under Ground 1. It is evident that the idea of commencing Family Law Act, s 79 proceedings emerged from within the NSW Trustee, which developed this proposal in the course of its financial management of the wife's estate, as a result of the orders of 19 March 2015, orders which should now be treated as in substance no decision.
6. The NSW Trustee's decision to seek legal advice about a possible Family Law Act, s 79 application would probably not have occurred but for its assumption of responsibility for the wife's financial management after the 19 March 2015 decision. Notwithstanding the way the NSW Trustee came to consider the possibility of s 79 application, there was in my view no difficulty with the Tribunal considering that such an application provided the NSW Trustee set out a proper basis for the Tribunal to infer that such an application was on the cards. In other words, were this matter approached as an initial application for the appointment of a financial manager, the NSW Trustee would have had to justify why it was necessary to pursue a s 79 application, leading therefore to the conflict of interest.
7. But the NSW Trustee's case, as recorded in the Tribunal's Reasons, never advances this far. The Tribunal records that Ms McGirr from the NSW Trustee has sought advice from an external solicitor regarding the issue and that is as far as the matter had progressed. For the NSW Trustee to say, as it does, that it is seeking advice about a s 79 application, does not on its own provide grounds for a contention that there is a conflict of interest, unless some other substantive reason were advanced for showing the need for a s 79 property settlement application.
8. The Tribunal seems to have reached the position that there was a conflict because it regarded the NSW Trustee as managing the wife's estate pursuant to a valid decision made on 19 March 2015. The NSW Trustee would have faced more stringent scrutiny with respect to the proposal of a s 79 application were it a competing applicant for initial appointment as financial manager with the husband. The Tribunal failed to test whether there was "a conflict of interest". In my view, this was an approach consequent upon the error that the Tribunal made, that has been identified under Ground 1.
9. But apart from an error related to Ground 1, the husband's case is otherwise made out under Grounds 2 and 3. As Young J's (as his Honour then was) decision in Re L [2000] NSWSC 721 at [10] - [12] recognised, the duty to manage the estate of a protected person will often fall to family members, and in the case of relatives proposing to undertake the task, the Court should examine whether or not there are minimal conflicts of interest and if some conflicts cannot be avoided, that they are properly dealt with. That puts into practice the words of Guardianship Act, s 17(1)(b) prohibiting "no undue conflict between the interests" of the financial manager and the protected person. There is nothing in relation to the appointment of financial managers in Guardianship Act, Part 3A that indicates that some test different from that in s 17(1)(b) should be applied under Part 3A. Guardianship Act, s 25M gives the Tribunal a discretion upon making a financial management order to appoint "a suitable person as manager of that estate" or to commit the management of the estate to the NSW Trustee. The expression "suitable person" is sufficiently broad to encompass the possibility of appointing a person with minor conflicts of interest with the protected person that are not undue.
10. The Tribunal did not apply such a test. It is evident from the reasoning in [164] - [166] that the Tribunal reached the conclusion that the husband could not be a financial manager because of the existence of any conflict. Were the Tribunal to have expressly applied a "suitable person" test it would have addressed the question whether any identified conflict was "undue", before rejecting the husband as a financial manager. In that respect the Tribunal applied a wrong principle and fell into error. The decision should also be set aside on this ground.

Grounds 4 and 5 - (Amended Summons, Prayers for Relief 5 and 6) the Tribunal drew the wrong inference of fact that there was a conflict on the part of the husband in acting as the wife's financial manager that could have been avoided.

1. Grounds 4 and 5 deal with the same part of the Tribunal's Reasons ([164] - [166]) as is discussed under Grounds 2 and 3 above.

The Husband's Submissions - Grounds 4 and 5

1. The husband submits that the Tribunal incorrectly inferred that were the husband to be appointed as the wife's financial manager, there would be a "conflict of interest". He submits that if the Tribunal had applied the correct test it would have found that no "undue" conflict would arise that could not be avoided or properly dealt with if appropriate measures were put in place.
2. To support this submission the husband relies upon findings (at [133] to [138]) the Tribunal made about the couple's finances (as indicated below) and the structure of the Guardianship Act. The husband argues that were the correct "undue conflict test" to be applied, then the following matters indicate that here there was no "undue" conflict that could not be properly be dealt with. The husband's and the wife's assets are jointly owned, their bank accounts are in joint names, and they hold their properties as joint tenants (Reasons, [135] - [136]). The husband is committed to ensuring that the wife is well looked after (Reasons, 135). The husband and the wife have executed mutual wills and are the beneficiaries of each other's wills (Reasons, [135]). The husband's other submissions are set out in the following three paragraphs.
3. Any conflict of interest really only arose as a result of his wrongful exclusion from the 19 March 2015 hearing. Had there actually been a conflict, there was a regulatory regime to supervise the husband as financial manager, and that the NSW Trustee had substantial powers to undertake such supervision (see for example the NSW Trustee and Guardian Act, s 66).
4. The alleged conflict of interest based on the Family Law Act, s 79 property settlement claim identified by the NSW Trustee was "colourable". The husband advances this submission upon grounds similar to those the Court has already identified above under Grounds 2 and 3. The husband argues: (i) there was no financial need or proper basis for the NSW Trustee to bring a claim on behalf of the wife for a s 79 property settlement; (ii) there was no evidence that when the wife had capacity she had taken steps to separate from her husband or to seek a s 79 property settlement; (iii) given the wife's incapacity, the NSW Trustee did not have standing to bring a claim for a s 79 property settlement, because it was not a "cause" that could be pursued by the NSW Trustee, and neither was it within the ambit of the NSW Trustee's powers or functions under the NSW Trustee and Guardian Act, s 16, without approval from the Court appointing a case manager, to commence proceedings in the Family Court; and (iv) the s 79 "just and equitable" threshold requirement could not be met in circumstances where the husband and wife's separation was involuntary (the wife lacking the capacity to decide to legally separate from her husband) and where it was not evident that the wife's needs were not presently being met.
5. Finally, the husband argues that at the request of NSW Trustee he had recently made a substantial payment to clear an outstanding sum of $37,444 in arrears for the wife's care at the local aged care facility. Moreover he has also agreed to contribute $150,000 to his wife's refundable accommodation bond (RAD) at the local aged care facility, were he to be appointed as her financial manager.
6. The husband submits that all these matters show that here there was no undue conflict of interest that could not be properly dealt with.

Consideration - Grounds 4 and 5

1. This Court has already decided under Ground 1 and Grounds 2 and 3 to quash the Tribunal's 23 February 2016 decision on review to confirm the financial management order made on 19 March 2015 in relation to the wife. It is open now to this Court to make a decision in place of the quashed decision. Matters such as those that the husband raises under this ground can be considered in the course of this Court's reconsideration of the decision. It is therefore not necessary for this Court to determine the husband's Grounds 4 and 5.

Ground 6 - (Amended Summons, Prayers for Relief 7) The Tribunal applied a wrong principle of law, or failed to take into account a mandatory consideration, or made an unreasonable decision, when considering the form of financial management order to be made.

1. The Tribunal did not include in its 23 February 2016 confirmation of the financial management order (or indeed in its guardianship order) a time limitation for any further review. Instead, the Tribunal held that any decision regarding the wife's estate might best be determined after the decision was made whether to pursue the s 79 property settlement with the husband and after the outcome of that decision was assessed: Reasons at [161].
2. The full context of this part of the Tribunal's reasoning is in Reasons [160] - [162] as follows: "160. The lack of liaison between the NSW Trustee and [the husband] could indicate that [the wife's] affairs might have been better managed. As noted above, many of the issues raised could be addressed through direct contact with the NSW Trustee and if [the husband] remained dissatisfied there are avenues for having these matters reviewed and examined. 161 The affairs of [the husband and wife] are complex and made more complex by the possibility of a property settlement application in respect of the joint property. The best decisions regarding her estate, including matters such as addressing the RAD payable in respect of her aged care placement, might be best determined after a decision is made about whether to pursue a property settlement and the outcome of that possibility is assessed because then it would be possible to more accurately assess the nature and extent of her estate. 162. The Tribunal is not satisfied that the matters raised by [the husband] are such as to warrant the revocation of the appointment of the NSW Trustee due to a failure to properly administer the estate as it currently stands."
3. The husband contends that in making this decision, the Tribunal in substance appointed the NSW Trustee as the wife's financial manager for an indefinite period, thereby preventing him (the husband) from having an opportunity to review the financial management order and to raise the argument that he should be appointed as financial manager. He contends that instead he has been placed in a position where he has no choice but to apply to the Tribunal to vary the existing financial management orders.

The Husband's Submissions - Ground 6

1. The husband contends that the Tribunal's decision not to include a time limit for the review of the financial management order was unreasonable, and that the Tribunal failed to take into account the "mandatory considerations" in the general principles of Guardianship Act, s 4, especially s 4(a), which requires the Tribunal to give "paramount consideration" when exercising functions under the Act to "the welfare and interests" of the person for whose benefit the order is being sought.
2. The husband also advances an alternative submission for Ground 6. He submits that the Tribunal should have reserved its decision on changing the financial manager, and appointed the NSW Trustee only for a limited time period. The husband submits on this alternative, that prior to making its decision on changing the wife's financial manager the Tribunal: (i) should have appointed Mr Burwood as separate representative for his wife (or appointed some other person in that capacity), or directed the NSW Trustee to investigate whether a s79 property settlement application by the wife was necessary or available and report its findings to the Tribunal; and/or (ii) directed the parties to go through an alternative dispute resolution procedure pursuant to [NCAT Act], s 36 to establish whether a way could be found to circumvent the alleged conflict in relation to the wife's best interest.
3. Under this ground, the husband seeks a variation to the financial management order, for a limited time, to provide for a review period in which the NSW Trustee could explore, in one of the ways indicated, whether or not a s 79 property settlement application should be pursued, or whether it could be avoided.

Consideration - Ground 6

1. The Tribunal's statement that "the best decisions" about the wife's estate should best be taken "after a decision is made about whether to pursue a property settlement and the outcome of that possibility is assessed" is really only an observation about the complexity of the husband's and wife's financial affairs. It does not expressly ground a conclusion that a specific review period should not be set, even though one was not set under Guardianship Act, s 25S(1A).
2. But it is not necessary to decide this Ground of appeal as the Tribunal's decision is being set aside on other grounds. As will be seen below the Court is minded to set a review period under Guardianship Act, s 25S (1A) for the future management of the wife's estate.

Ground 7 - (Amended Summons, Prayers for Relief 8) the Tribunal did not afford procedural fairness to the Husband by failing to warn him of its proposed findings on conflict of interest and of its intention to make a finding on a final, as opposed to a limited basis.

1. The husband submits that the Tribunal denied him procedural fairness. He submits that the Tribunal failed to give him a reasonable opportunity to be heard in relation to two issues: (1) the alleged conflict of interest (addressed above), and (2), on the form of the financial management order the Tribunal proposed to make, namely a final order, rather than a limited order.

The Husband's Submissions - Ground 7

1. The husband submits that at the 23 February 2016 hearing the Tribunal gave him the impression that any order that would be made on that date would only be interim in nature, and that a final decision as to his financial management application would not be made until after the NSW Trustee had decided on his wife's behalf whether or not to pursue a Family Law Act, s 79 application for property settlement. But instead the Tribunal confirmed that the NSW Trustee remain as the wife's financial manager, without any limitation period for the review of the appointment.
2. The husband submits that the Tribunal is bound by the principles of procedural fairness under its governing statute and at common law: see the NCAT Act, s 38(5)(c); C v W, Lindsay J at [49]. He submits that the Tribunal acted in breach of these principles by leading him to believe that any order in relation to his financial management application would only be an interim order. He submits that: the Tribunal's decision contained adverse findings relevant to his rights, interests or legitimate expectations; and that the Tribunal was required to warn him of the risk of such an adverse finding being made, unless the risk necessarily inheres in the issues to be decided: EB at [165].

Consideration - Ground 7

1. This submission is not persuasive. Guardianship Act, ss 25G and 25H give the Tribunal power to make interim or final financial management orders. All parties before the Tribunal should be taken to know this. The husband relies on the effect of what the Tribunal said at [161], which represents what the Tribunal communicated in the course of the 23 February 2016 hearing, as the basis for his assumption that the Tribunal would only be making an interim, or time-limited decision, rather than a decision for which the review period was not limited.
2. The words the husband relies on do not summarise a representation that the decision to be made as a result of the 23 February 2016 hearing would only be interim. Nor does the transcript contain such a representation. Moreover, the distinction between an interim and final decision may not matter much when the husband was always entitled under Guardianship Act, s 25S(1)(b)(ii) to request a review of financial manager's appointment , as a person who "has a genuine concern for the welfare of the protected person".

Grounds 8 and 9 - (Amended Summons, Prayers for Relief 9,10 and 11) the Tribunal failed to take into account a relevant consideration, namely the views of the wife's separate legal representative Mr Burwood, and the Tribunal failed to give adequate reasons for its decision.

1. Mr Burwood, the wife's appointed separate legal representative, put submissions at the 23 February 2016 hearing as to the suitability of the husband to act as his wife's financial manager.
2. The Tribunal recorded the husband's submissions in relation to Mr Burwood (at [150]) as follows: "150 In oral submissions to the Tribunal Mr Burwood made submissions to the following effect: (1) The issue is whether or not [the husband] can do a better job than the NSW Trustee of managing [the wife's] affairs. (2) There is no evidence of irresponsibility, bad financial management or poor investment decisions by [the husband]. (3) [The husband and wife] had a long relationship and accumulated sizeable assets in a well-balanced portfolio. (4) If [the husband] were to manage [the wife's] affairs it is more likely that her funds would be used to provide her with comforts and necessities, including clothing, which she is currently lacking. (5) [The husband] has evidenced his sense of personal responsibility for [the wife] in his continued concern for her throughout the time of her dementia, hospitalisation and placement in the aged care facility".
3. Mr Burwood had been appointed as the wife's separate legal representative on 2 October 2015, pursuant to NCAT Act, s 45(4)(c).

The Husband's Submissions Grounds 8 and 9

1. The husband submits: that the Tribunal failed to have any regard to Mr Burwood's submission; and that it should have taken it into account because of Mr Burwood's unique role to stand in for the wife to express her wishes as well as ultimately her best interests: see NCAT Guardianship procedural Direction 2: representation at [49] - [51].
2. Practice Direction 2 of the New South Wales Civil and Administrative Tribunal at [49] - [51] requires the separate legal representative: to stand in the wife's stead to "seek and inform the Tribunal of [her] wishes"; to "represent the best interest of the person rather than act on instructions"; and to "canvass views of all others involved in the proceedings and make a submission to the Tribunal, based on all the available information, about what is the best outcome for [her]".
3. The husband submits that Mr Burwood did just that. At the 23 February 2016 hearing, after being in his role for nearly five months, Mr Burwood made submissions to the Tribunal that strongly favoured the husband's appointment as the wife's financial manager. Mr Burwood submitted that: (1) there was no evidence of irresponsibility, bad financial management or poor investment decisions by the husband; (2) the husband and wife had a long relationship and had accumulated substantial assets in a well-balanced portfolio; (3) if the husband were to manage the wife 's affairs it was more likely that her funds would be used to provide her with comforts and necessities, including clothing, which she was currently lacking; and (4) the husband has proven his sense of personal responsibility for his wife through his continued demonstrable concern for her throughout the time of her dementia, her hospitalisation and her placement in the local aged care facility.
4. The husband submits that the Tribunal did not adequately set out the reasoning for its decision to reject his application to be the wife's financial manager. The husband submits that the lack of reasons on this subject indicates that the Tribunal failed to take Mr Burwood's submissions into account. The husband further submits that the Tribunal should have instead found that it was in the best interests of the wife that the husband be appointed as her financial manager, including for the reasons given by Mr Burwood, the wife's separate representative.

Consideration - Grounds 8 and 9

1. The views that Mr Burwood expressed to the Tribunal represented some of the strongest independent material contrary to the conclusion that the Tribunal ultimately reached. The full force of Mr Burwood's submission to the Tribunal may be gleaned from the transcript of what he actually submitted on 23 February 2016, on the subject of the best financial management for the wife, in answer to a question from a Tribunal member: "Ms B: I'm going to stop you because we've only got limited time, so just your view about whether, if we proceed today - I've just said if we proceeded today, I can't see how we could appoint [the husband] as the financial manager when the advice we have from the current financial manager is that….considering-currently pursuing legal matters in which he would be the defendant. Mr Burwood: Is it - look, what I get from the evidence is a lot of disquiet about what these two public bodies - how they're performing and, from my point of view, representing [the wife's] best interests, then these government appointed- I can't think of what else to term it…functionaries, it's not working in [the wife's best interests and I'm very dissatisfied with the current arrangements. I mean I think some of them are quite appalling. I just wonder whether we might have a break whereby the lawyers on the other side might consider whether there's an alternative vehicle. For example, if [the husband] as an individual cannot be appointed, if that was your thinking, you know, whether or not there's another legal vehicle that could be put forward to take over from the public trustee to get things on the move and to provide [the wife] with the comforts that she requires. I mean all the evidence is she's - her position is deteriorating. She barely knows what's happening and she needs a few comforts to assist her."
2. After the Tribunal records (at [150]) Mr Burwood's submissions, it analyses (at [151] - [153]) certain submissions the husband made that were critical of the NSW Trustee's management of the wife's estate. The Tribunal made clear that it did not accept the husband's submissions of NSW Trustee mismanagement: the Tribunal said that it was not satisfied: that the husband has provided any supporting evidence that the NSW Trustee was proposing to sell jointly owned property of the couple in a "fire sale" (154); or, that the NSW Trustee lacks the skills and experience to arrange for and complete the necessary improvements to the properties and to ready them for sale (at 154); (3) or that the NSW Trustee had not done any planning or forward projections for the wife's financial affairs in a way that showed mismanagement.
3. On the issue of alleged NSW Trustee mismanagement, the husband's case before the Tribunal perhaps tried to prove too much. It does not have to go so far as to establish that the NSW Trustee lacks the necessary skill and experience to manage the wife's estate. He only needed to be able to persuade the Tribunal that he, the husband, could deploy those skills more in the wife's "best interests" than could the NSW Trustee.
4. But the issue of present relevance is that the Tribunal does not appear to deal with Mr Burwood's submissions, which are indeed directed to the point at issue: that he, Mr Burwood, believed the husband is more likely to do "a better job" than the NSW Trustee. The Tribunal does not address that submission, which bore upon the question before it of what choice was in the "best interests" of the wife at the time of the hearing.
5. The Tribunal also deals (Reasons at [155] - [157]) with the husband's various complaints of financial loss as a result of Property No. 467 being taken off the market and the husband's claimed difficulties in seeking to improve the couple's jointly owned properties because of lack of contact from the NSW Trustee. The Tribunal dismisses these submissions in a way which expressly deals with the husband's submissions, but without it dealing with Mr Burwood's different submissions on the same topic (Reasons at [160] - [162]). The Tribunal ultimately dismisses the husband's submissions, because of the conflict of interest issue (Reasons at [164] - [165]). Because that was the reason for the dismissal, the Tribunal seems understandably not to have thought it necessary to analyse Mr Burwood's submission.
6. The analysis in Grounds 2 and 3 above shows that the Tribunal was in error in inferring that the husband had a demonstrable conflict of financial interest with the wife. Once that answer to the husband's case is removed, the Tribunal's Reasons provide no explanation as to why Mr Burwood's submissions were not dealt with, especially given the considerable weight that something coming from the separate representative would ordinarily command.
7. In my view it cannot be inferred that the Tribunal did not take Mr Burwood's submissions into account. These views of the separate legal representative are set out in the Reasons and could therefore not easily have been ignored by the Tribunal.
8. But the Tribunal did not explain why Mr Burwood's views did not prevail. It is unclear from the Tribunal's Reasons whether Mr Burwood's views were simply not accepted, or whether there was some basis for otherwise discounting them to explain why they were not acted upon or whether they were, despite their independent persuasive power, displaced by other material.
9. Reasons for not acting on Mr Burwood's views were all the more necessary, where there was no evidence of financial mismanagement on the husband's part, and where the Tribunal had found a "lack of liaison" between the NSW Trustee and the husband that could indicate that the wife's affairs "could have been better managed". In these surrounding circumstances a clear answer to the inference that would naturally arise in the husband's favour from Mr Burwood's submissions was needed. In this respect the Tribunal failed to give adequate reasons for its decision.
10. This Court could remit the proceedings to the Tribunal to be reconsidered and for it to provide reasons: see NCAT Act, Schedule 6, Part 6, clause 14(4). But this Court is dealing with the matter by way of a new hearing. The more efficient course is for the Court to take Mr Burwood's views into account during this new hearing.

Ground 9 - (Amended Summons, Prayers for Relief 12 and 13) the Tribunal applied the wrong principle of law and/or failed to draw the proper inference of fact from primary facts about allegations of wasted payments said to evidence financial mismanagement by the NSW Trustee

1. At the 23 February 2016 hearing, the husband submitted that the NSW Trustee made a number of errors in the management of the wife's estate. The husband contended that the NSW Trustee made unnecessary property insurance payments on the husband and wife's jointly owned property and made unnecessary health insurance payments on her behalf. The Tribunal did not revoke the NSW Trustee's appointment on these grounds.
2. The Tribunal found (Reasons, at [153]) that: "There was no evidence provided during the hearing or in writing by the [NSW Trustee] about the reasons for these payments and the Tribunal has insufficient evidence to make a finding about whether or not they represent mismanagement". The husband challenges this finding.

The Husband's Submissions - Ground 9

1. The husband submits that the NSW Trustee insufficiently understood the husband's and the wife's financial affairs that it mistakenly paid insurance premiums: (1) in the amount of $8,295.36 on a business insurance policy for a business that the husband and wife had once conducted but which had been closed for a lengthy period before 19 March 2015; (2) in the amount of $775.96 to insure a building on a vacant block of land; and (3) an unnecessary health insurance premium in the amount of $379.55, which the husband had already paid. The Tribunal noted the making of these payments in its Reasons, at [143(4)] and [143(5)] respectively.
2. Mr Burwood also noted that over the period of the NSW Trustee's administration only $97 of the NSW Trustee's total expenditure went towards personal comforts for the wife, such as toiletries and personal grooming and maintenance. Mr Burwood submitted to the Tribunal that he felt that this was "extremely slender if you spread that out over 12 months".
3. The husband submits that the hearing before the Tribunal was conducted on the basis that he did not have a procedural fairness obligation to question the NSW Trustee about the alleged wasted expenditure: it was up to the NSW Trustee to justify the expenditure in question.
4. The husband argues that the Tribunal should have inferred that the NSW Trustee, as the wife's financial manager and an active party to the proceeding had the capacity to adduce evidence to meet the husband's allegations as to financial mismanagement and had failed to do so. He contends the Tribunal should here have applied the principle against the NSW Trustee: "evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted": Blatch v Archer [1774] 98 ER 969; see also Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.
5. The husband submits that the NSW Trustee's failure to adduce evidence to displace the inference of financial mismanagement justified the Tribunal in inferring that: (i) the evidence, if adduced, would not have assisted the NSW Trustee's case on the financial mismanagement allegations; (ii) the husband's allegations regarding the wasted payments evidencing financial mismanagement by the NSW Trustee as the wife's financial manager were therefore made out; and (iii) as mismanagement is a recognised ground for removal, the Tribunal was justified varying the current financial management order in favour of the NSW Trustee and to instead appoint the husband: P9/2000 [2011] NSWSC 49, Hallen AsJ at [19]).

Consideration -Ground 9

1. This ground is based on a misconception. This judgment has already explained that it is not necessary to find that the NSW Trustee mismanaged the wife's estate before it can be replaced as her financial manager. The matter should be approached on the basis of who should be the financial manager in the "best interests" of the wife. The Court now undertakes this exercise in these reasons on the re-hearing. It is not necessary to consider this ground further.

Other Ground - Leave to Appeal

1. The husband also sought leave under NCAT Act, Schedule 6, Part 6, clause 14(1)(b) to appeal on other grounds raising a merits review of the Tribunal's 23 February 2016 decision. But the Court has already decided to set aside the Tribunal's decision on other grounds so a grant of the leave requested is not necessary.

Varying the FMO? Revoking or Confirming the Appointed Financial Manager?

1. This Court has already decided to deal with this appeal by way of a new hearing for the financial management orders: NCAT Act, Schedule 6, clause 14(3). The Court may make such orders as it considers appropriate in light of its decision on the appeal, including to confirm, affirm, vary, quash, set aside or to substitute another decision for the decision under appeal, or to remit part of the case for reconsideration by the Tribunal: NCAT Act, Schedule 6, clause 14(4).
2. The last of these options is not realistic: the financial management orders should not be remitted for the Tribunal's reconsideration. First, time is important for the wife. Some loss of the wife's estate has already occurred. Quickly avoiding further waste is desirable. Leaving the current orders in place until after another Tribunal hearing would not be in the wife's best interests. Secondly, this Court has had the benefit of fresh evidence on appeal about the husband's and wife's financial affairs since the 23 February 2016 Tribunal hearing and can deal with that evidence. Thirdly, it is important for this Court, now that it is seized with the detail of this matter, to rectify the consequences of the denial of procedural fairness to the husband which occurred at the outset of the Tribunal's proceedings. The analysis of the grounds of appeal above shows that the Tribunal never fully resolved the consequences of that initial denial of procedural fairness to the husband.
3. This Court has the same power on appeal as the Tribunal had to vary, revoke or confirm the financial management order and to revoke or confirm the appointment of the existing financial manager: see Guardianship Act, ss 25P and 25U and NCAT Act, Schedule 6, clause 14(4).
4. The financial management order should continue. The wife's dementia is progressing. She is still not capable of looking after her own financial affairs, so the existing order will be confirmed under s 25P(1)(a).
5. The question remains on this appeal from the Tribunal's review of the existing financial management orders, whether the appointment of the NSW Trustee should be revoked and be replace by the husband as the wife's financial manager, under Guardianship Act, s 25U(1) and (3). In my view the arguments for now replacing the NSW Trustee with the husband, as the wife's financial manager, are strong and that should occur.
6. This decision must be taken under the statutory commands in Guardianship Act, s 4(a) to (g) which require the Court to observe the following seven principles when exercising functions under the Act in relation to persons under guardianship: "(a) Their welfare and interests should be given paramount consideration; (b) Their freedom of decision and freedom of action should be restricted as little as possible; (c) They should be encouraged as far as possible to live a normal life in the community; (d) Their views in relation to the exercise of the Court's/Tribunal's functions should be taken into consideration; (e) The importance of preserving their family relationships and cultural and linguistic environments should be recognised; (f) They should be encouraged as far as possible to be self-reliant in relation to their personal, domestic and financial affairs; and (g) They should be protected from neglect, abuse and exploitation."
7. The Court will deal with the s 25U(1) and (3) questions in relation to the financial management orders by reference to such of these principles as have present relevance. Not all these principles bear upon the financial management orders in this case. The statutory order of these principles is not significant and a slightly different order is followed here.
8. The Guardianship Act provides three gateways to the revocation of the appointment of a particular financial manager. Two are closed here: the NSW Trustee has not sought the revocation (s 25U(4)(a)) and the Court has not revoked the financial management order itself (s 25U(4)(c)).
9. The remaining s 25U(4)(b) gateway allows revocation of the appointment of a financial manager and substitution of another, without the Court being required to find mismanagement by the existing appointee. The statutory test is broader. Revocation may occur if "it is in the best interests of the protected person that the appointment be revoked": s 25U(4)(b). The Court here concludes that revocation of the NSW Trustee's appointment and substitution of the husband is in the wife's best interests.
10. (a) Wife's Welfare and Interests and (g) Protection from Neglect and Exploitation. The wife's relevant welfare is promoted if her estate is used to meet her genuine needs without unnecessary waste. Her relevant interests are to protect and grow the capital of her estate so that she always has sufficient funds to meet her foreseeable needs. Consideration of principles, (a) and (g) requires examination of the relative advantages and disadvantages of the NSW Trustee's actual and the husband's potential management of the wife's estate. This consideration falls into a number of sub-topics, many of which have been dealt with under the financial management orders grounds of appeal. These reasons deal with some findings the Tribunal made against the husband, then deal with some issues with the NSW Trustee's management.
11. The Tribunal found two main conflicts of financial interest between the husband and the wife, preventing the husband from being appointed as her financial manager. The alleged conflicts are: (1) whether the husband is conflicted in bringing a Family Law Act, s 79 application; and, (2) whether the husband is conflicted in seeking to recover certain of her lottery winnings. Neither of these conflicts of interest presently exist. This Court has found that the first of these alleged conflicts is based upon errors in the Tribunal's reasoning. These errors have been dealt with earlier in these reasons and need no further discussion. The second alleged conflict is discussed below.
12. The NSW Trustee perceives a conflict between the husband's and the wife's interests due to the risk that the husband may have misapplied monies which the wife won in a lottery in September 2010. The NSW Trustee in its report of 14 August 2015 concludes that "a legal referral has been made for recovery of assets from [the husband] of $307,059.65 which were funds [the wife] received from winning the [lottery not identified] lottery in September 2010".
13. The husband's evidence on this appeal satisfies the Court what happened with these lottery funds. No further enquiry about the application of lottery funds is warranted for the benefit of the wife's estate. The evidence as to the application of these funds is analysed below. This issue is important for two reasons. First, to show whether or not there is a conflict of interest between the husband and the wife with respect to these funds. And secondly, the NSW Trustee's failure to resolve this issue since its appointment as he wife's financial manager is another reason why the Court concludes that it is in the wife's best interests that the husband should be appointed as the wife's financial manager in substitution for the NSW Trustee. These reasons will deal with each of these matters in turn.
14. The NSW Trustee received what has turned out to be misinformation about the wife's lottery winnings almost immediately after the wife was admitted to the local hospital. The source of this misinformation was the wife's acquaintance, Ms N. The hospital records show this clearly. Ms N befriended the wife as her mental condition deteriorated in 2013. Ms N conveyed to the hospital, and thence to the NSW Trustee, the information that the wife had "won the lottery several years ago and has a considerable quantity of money and assets in her name". The information that Ms N provided at least raised the question why, if the lottery funds were no longer in the wife's name, whether an account should be given by the husband of their application.
15. The husband gave an extensive and compelling account about his application of those lottery monies. The husband and the wife used joint funds to purchase the lottery tickets. The winnings were therefore joint funds, and were never the sole funds of the wife. The net prize money was of the order of $350,000, including a car. Some funds were used for the purchase of sporting equipment; the balance was put into a term deposit. From that the couple also drew funds to purchase a motorhome in which they planned to travel around Australia. They used some of the funds to live on over time.
16. But they had sold their general store business in September 2010, about the same time as their lottery win. After paying off the mortgage for that business the proceeds of sale were added to the lottery winnings on deposit. Their long-term plan was to travel around Australia in the motorhome. Living off the proceeds of the sale of business and the lottery for a period was their not imprudent short-term plan. They also used the balance of these combined funds to pay for the renovations to No. 6 and to begin to ready No. 465 for sale.
17. The husband ultimately transferred all the couple's funds into his name. He has been criticised for this. But there was a good reason for his action. He explains, and I accept, that after Dr E formally diagnosed the wife with dementia on 3 October 2014, he, the husband, became quite concerned about the wife being able to deal with the large accounts of cash in their bank accounts. Only a few weeks earlier, in September 2014 the sum of $483,027.96, the proceeds of sale of a property, had been deposited into a joint husband and wife Smart Access Account with the CBA to which the wife had access. From there the couple had transferred this sum into a NetBank Saver Account (4217) held jointly between husband and wife, an account with features enabling the transfer of funds electronically to third parties. The wife also had access to account 4217, in which the lottery monies had been deposited. The husband's narrative, which I accept, is that he was concerned about the potential risk potential that, suffering the effects of dementia, the wife might dissipate their joint funds. So he decided to open two new bank accounts with the CBA.
18. The husband opened the two new CBA accounts in his own name. He transferred the funds into them openly, explaining to the wife that he was going to set up new bank accounts. He assessed her as being very vague at the time and perhaps not fully understanding what he was saying to her. His sole purpose in transferring the money into the other account was to protect their joint assets from misapplication due to the wife's dementia. He did not explain all this to her. But it is understandable that he did not. I accept his evidence that he was aware that at this time the wife spent considerable time on the computer, doing surveys and responding spontaneously to what she encountered on the Internet. I accept that he genuinely feared that she might give away all their money to a charity, or to a fraudster, or that perhaps she would make an erratic bulk purchase. I accept his evidence that by October 2014, as her dementia had progressed, she had purchased and stored at the house multiple items that they did not need. There was no disagreement between the husband and the wife about the movement of these funds to the other accounts.
19. Both these new accounts were with the same bank, the CBA, that the couple had banked with for years. By then the husband was arranging most of the family's financial affairs. These two new CBA accounts were split so that most of the couple's substantial cash funds were kept in an interest-bearing account in his name, in an account called a CBA Smart Pensioner Security Account. As at 12 November 2015 the balance of this account was $519,243. The couple's day-to-day expenditure came out of non-interest-bearing account, a CBA Smart Access Account, which only has a small amount in it from time to time, sufficient to cover daily expenditure. These financial arrangements are prudent and in no way suspicious.
20. The application of the lottery funds raises a second issue. The NSW Trustee appears to have concluded that the husband had a conflict of interest with the wife, because the lottery funds might need to be recovered from him for the wife. In my view this assumption is unwarranted for several reasons. First, the lottery funds are joint funds. He was entitled to part of them on his own account. And secondly, the NSW Trustee did not communicate with the husband to ask him for any explanation about the ownership or application of the funds, before seeking legal advice with a view to possibly seeking to recover the funds. Had the NSW Trustee done so, it is probable that the explanation the husband has now given to the Court would have long ago been available to the NSW Trustee.
21. Why did the lottery funds become an issue? Ms N provided information about the lottery funds to the hospital on 22 October 2014, two days after the wife was admitted to the hospital. The NSW Trustee therefore had some basis to assume that the husband may have been holding the wife's funds. But the husband's detailed explanation in the evidence on this appeal, accompanied by banking records and wholly plausible account of his motives for the transfer of funds into his name, appears rational, internally consistent and fits the background of the wife's developing dementia. Any perception which the NSW Trustee had of a conflict of interest between the husband and the wife on account of the lottery funds has been fully answered. There are no conflicts of financial interest that would disqualify the husband from being appointed the wife's financial manager.
22. These reasons now turn to the NSW Trustee's management of the wife's estate. The Court has already found, and finds in this section, several errors by the NSW Trustee in the management of the wife's estate. The Court is not confident that in this case the NSW Trustee's management brings with it an assurance of estate management that is superior to the husband's financial management. Whatever could have been said to explain these errors, nothing has been put to the Court on behalf of the NSW Trustee. The Court finds the following errors in the NSW Trustee's financial management.
23. The NSW Trustee's management has caused the wife's estate avoidable expense. The NSW Trustee required one of the couple's jointly owned properties, No. 467, to be taken off the market, thereby inhibiting the husband from realising the proceeds of its sale so he could pay down the RAD accommodation bond at the aged care facility and eliminate or reduce the interest outgoings on the RAD bond of over 6% per annum. An RAD accommodation bond of in excess of $540,000, as this one is, generates an interest liability of over $30,000 per year, or over $2500 per month. It is imprudent for the wife's estate to continue to incur these outgoings. NSW Trustee's decision to prevent the sale of No. 467 and to allow the reduction of these outgoings has been costly to the wife's estate.
24. The husband wishes to pay off the RAD bond of $540,000. But he does not have enough money in his own bank accounts for this: as at the hearing he only had $350,072 in available ready funds. If appointed the financial manager he has offered to prepare a plan so that No. 6 and the other properties can be readied for sale and that once sold the proceeds can be used to pay down the RAD at the local aged care facility. In the meantime the husband says that he will use the money in his own bank account, forming part of their joint assets, to meet the wife's care and personal needs. He has undertaken in his affidavit of 15 August 2016 to pay $150,000 towards the RAD upon his appointment as financial manager. But an undertaking is not necessary. On 11 August 2016 he paid the accrued arrears of care fees for the wife $37,443.23 from his own funds. He did so rapidly after the NSW Trustee informed him for the first time on 26 July 2016 that these accrued arrears were due. He is meeting her ongoing care, clothing and personal care expenditure, as it is evident these expenses are not being met from the NSW Trustee's funds held for the wife. He has already organised a marketing plan for the sale of the jointly held properties through a local real estate agent. The Court is confident that the RAD payment will be made, if the husband is appointed the wife's financial manager.
25. The NSW Trustee's correspondence justified the ban on the sale of No. 467 as being aimed at preventing the husband selling the property at anundervalue. But there is little evidence supporting that as a real risk. The property was to be marketed through a local real estate agent in conformity with a marketing plan. If that was the NSW Trustee's concern, there is no evidence that the NSW Trustee quickly investigated and sought to address the concern, or took steps to ensure that No. 467 was only sold to an arm's length purchaser.
26. The property No. 467 has still not been sold. The husband is the joint owner of this property with the wife. The impediment to its sale affects the husband's interests as well as the wife's. There is no good reason why the husband should be impeded from realising his own interest in this joint property as soon as he wishes to sell. But importantly he has the same interest as the wife in maximising the sale price of No. 467. Joint owners of property who are in active financial or litigious dispute with one another can have conflicts of interest in the sale joint property. But this is not such a case. The husband and wife have wholly coincident interests in the sale of No. 467 for the maximum price.
27. This is one of several illustrations of the coincidence of financial interests between the husband and the wife. The wife's will of November 2004 gives all her property to the husband. The wife now probably lacks testamentary capacity. In the event the wife predeceased the husband, it is in both the wife's and the husband's financial interests to preserve the wife's estate through close and prudent financial management.
28. The wife is presently in receipt of Centrelink payments, to which she is probably not entitled. Her receipt of these benefits only seems to have commenced in the period between the wife's admission to the local hospital in October 2014 and the appointment of the NSW Trustee as her financial manager in March 2015. The most recent evidence at the time of the appeal hearing in August 2016 was that payment of Centrelink benefits to her was continuing. Whilst the NSW Trustee is not responsible for her applying for these benefits in the first place, the Court accepts that the payments continue to create a cumulative liability in the wife's part to the Commonwealth of Australia. She is liable to repay the Commonwealth for increasing the accumulating pension to which she is not entitled, exposing her estate to the possibility of orders for costs and interest and penalties under Commonwealth legislation. The NSW Trustee did not take action to reverse these pension receipts between March 2015 and August 2016. This situation should be remedied rapidly. The husband has indicated that if appointed financial manager in place of the NSW Trustee he can, and will, immediately disclaim the wife's entitlement to this pension and will refund any pension overpayments of to the Commonwealth. As the husband discovered this error, the Court is confident he will fix it.
29. (b) The Wife's Freedom of Decision and Action. The appointment of the husband as the wife's financial manager will promote her freedom of financial action, especially at the micro-level. Almost nothing has been spent out of the NSW Trustee's trust funds on the wife's personal needs or on discretionary items to improve her quality of life. The wife has both shares and funds on deposit from which she is earning dividends and interest. As at November 2015 the funds held by the NSW Trustee in trust for her were $14,738.76. These funds can and should be used prudently for the immediate benefit of the wife, so she has some of the comforts of life in the local aged care facility. The husband, her partner of 32 years, well knows what personal comforts she prefers. As her regular visitor he will be able to respond directly to her requests. Nothing in his financial history suggests that he would apply these funds imprudently.
30. The NSW Trustee has disclaimed practical day-to-day responsibility for the wife's personal expenditure. It says that family members are responsible for this. But that is not a satisfactory answer in this case for two reasons. First, under the existing guardianship orders, the husband only has the capacity to visit the wife once a week under supervision. This limitation on visit frequency inhibits him from organising quick informal purchases for the wife's personal needs. And secondly, the NSW Trustee's decisions in relation to such expenditure are difficult to question under the existing financial management orders. Seeking to review decisions of the NSW Trustee on small discretionary items has not proved to be very practical. The history of non-expenditure by the NSW Trustee on small discretionary items speaks for itself. Appropriate small-scale expenditure, which is what will benefit the wife at the most practical level, is more likely to be facilitated if the husband were to be appointed the wife's financial manager.
31. (c) A Normal Life in the Community. The Court explains below that this principle is significant when considering the variation of the guardianship orders in this case. Some degree of re-integration of the wife with her immediate pre-October 2014 social circle may still be possible, were the husband to be made her guardian. This will also be facilitated by the husband having immediate access to funds to facilitate discretionary expenditure on her behalf, sourced from her own funds as well as his funds, as is presently the case. The Court is confident that the husband will be responsible in controlling this discretionary expenditure for the wife.
32. (d) Views of the Wife. There is no reliable evidence that the wife does not want the husband to manage her estate. She expressed some early views to the contrary in the period October - November 2014. But these early views have little reliability, as is the case with many of the views she expressed during that period.
33. (e) Preserving Family Relationships. The husband wants to be involved in managing his wife's estate. Allowing him to do so will assist in preserving his relationship with her. So far, managing the wife's estate has been a source of conflict and frustration for the husband in his dealings with the NSW Trustee.
34. And properties held jointly between the husband and wife must be prepared for sale. The husband has both the motivation and the personal interest to prepare them sooner rather than later. Two particular assets especially need preparatory work: No. 6 and the motor home. The husband estimates that about $20,000 to $30,000 is required to renovate the real estate, No. 6, to make it marketable for sale. Also, the motorhome, in which the couple originally planned to travel around Australia, would have a market value of $120,000, if about $20,000 were now spent to complete its fit-out. It is currently not saleable. The rapid execution of renovation and fit out work, leading to the realisation of both these assets for the benefit of the estate, will be promoted if the husband were appointed as financial manager. Renovations have not yet happened under the NSW Trustee's management. The husband has given an account of his prior involvement in renovating properties in different parts of New South Wales. The Court accepts that he has a demonstrated history of hard work in adding value to the couple's properties through his work.
35. (f) Self-Reliance. The wife will never be financially self-reliant. But there is every reason why her financial decision-making should be made as simple and close to herself as possible. If decisions are made within the family between her husband and herself she comes closer to approaching a model of self-reliance than if the NSW Trustee remotely makes decisions for her which someone else acting in her interests seeks to review.
36. Finally, the husband is qualified to manage the wife's estate. From 2014 he taught himself the rudiments of financial management and became financially literate. Until September/October 2014 the division of labour within their marriage was that the husband would do the physical work associated with renovating properties for the couple and the wife would do all the banking and pay the bills using electronic banking. But since then the husband has been managing family finances. The wife used to work for a major Australian financial institution before moving to the local area with the husband. She was quite financially sophisticated and operated all the couple's financial affairs and bank accounts. The husband's financial self-education since 2014 has not only demonstrated his capacity to undertake practical financial management for the wife but it shows his commitment to her welfare and best interests. The husband has given a sufficient account of his management that the Court judges him to be both competent and prudent.

Conditions Upon and the Term of a New Financial Management Order

1. The question arises whether the husband's appointment as the wife's financial manager should be on terms. The husband has offered to have his financial management supervised. He has offered to report to the NSW Trustee. In my view, it is sufficient if the husband keeps separate accounts for the wife's estate so that his and her financial affairs are the subject of a stand-alone accounting, which can be called for if required. It is sufficient that those accounts be filed and presented at the end of term review for the financial management order.
2. The guardianship order and financial management orders should mesh. The guardianship order will be limited so that the husband is not able to move the wife to Queensland before the expiry of the current guardianship order. The financial management order will be framed in the same way. It should prevent the husband from expending the wife's funds on any property in Queensland before the expiry of the financial management order's two-year term. If the husband wishes to explore before then whether it is in the best interests of the wife to relocate, some preliminary expenditure in that direction may perhaps take place before the next end of term review.

Grounds relating to the Husband's guardianship application

Legislation Relevant to the Guardianship Orders

1. Guardianship Act, Part 3 provides for the making of guardianship orders. Applications for guardianship orders in respect of a person may be made by the person, the Public Guardian or any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the person: Guardianship Act, s 9 (1). The mandatory substantive and procedural requirements for the Tribunal to make a guardianship order are provided for under Guardianship Act, s 14, as follows: "14. Tribunal may make guardianship orders (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order."
2. Guardianship orders may be continuing or temporary, plenary or limited, or subject to "such conditions as the Tribunal considers appropriate to specify in the order:": s 16(1). Two or more guardians of a person may be appointed under one or more limited guardianship orders although the Public Guardian is not to be appointed as a joint Guardian: s 16 (3).
3. Given the special relationships that guardianship involves, Guardianship Act, s 17 requires the Tribunal to be satisfied that the personal and financial relationships between the proposed guardian and the person under guardianship are consistent with the objects of the legislation: "17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. (2) Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship. (3) If, at the expiration of the period for which a temporary guardianship order has effect, the Tribunal is satisfied: (a) that it is appropriate that a further guardianship order should be made with respect to the person under guardianship, and (b) that there is no other person who it is satisfied is appropriate to be the person's guardian, the Tribunal may, in accordance with this Division, make a continuing guardianship order appointing the Public Guardian as the guardian of the person. (4) The Public Guardian shall be appointed as the guardian of a person the subject of a temporary guardianship order."
4. The legislative scheme of the Guardianship Act provides for regular review of the operation of guardianship orders, over periods that are specified in s 18 of the legislation 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. (1A) Despite subsection (1), the Tribunal may specify, in a continuing guardianship order, that the order has effect for a period not exceeding: (a) in the case of an initial order-3 years, and (b) in the case of an order that is renewed-5 years, from the date on which it was made. (1B) Subsection (1A) applies in relation to a guardianship order only if the Tribunal is satisfied that: (a) the person the subject of the order has permanent disabilities, and (b) it is unlikely that the person will become capable of managing his or her person, and (c) there is a need for an order of longer duration than the relevant period specified in subsection (1). (2) A temporary guardianship order has effect: (a) in the case of an initial order-for such period (not exceeding 30 days 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 30 days from the date when it was renewed) as the Tribunal may specify in the order. (3) A temporary guardianship order may be renewed only once."
5. Subject to any conditions specified in the order, the guardian of a person the subject of a limited guardianship order has custody of the person to the exclusion of any other person to such extent as the order provides and has such of the functions of the guardian of that person to the exclusion of any other person as the order provides: Guardianship Act, s 21.
6. Guardianship Act, Part 3, Division 4 provides for the assessment and review of guardianship orders which are given the time limitations indicated above. Guardianship Act, s 24 gives the Tribunal the power to order an assessment of the person under guardianship, so as to better equip the Tribunal to review existing guardianship orders: Guardianship Act, s 24. The guardian, the person under guardianship, the Public Guardian and any other person who in the opinion of the Tribunal has a genuine concern for the welfare of the person under guardianship are all entitled to request a review of a guardianship order: s 25B.
7. The Tribunal may on its own motion review a guardianship order and must review the guardianship order as is provided for in s 25: "25 Review of guardianship orders (1) The Tribunal may, on its own motion, review any guardianship order. (2) The Tribunal must review each guardianship order: (a) at the request of any person entitled to request a review of the order, and (b) at the expiration of the period for which the order has effect. (3) Despite subsection (2) (b): (a) a review required by that paragraph may be commenced before the expiration of the period concerned, and (b) the Tribunal is not required to review a guardianship order under that paragraph if the order contains a statement (referred to in section 16 (2A)) to the effect that the order will not be reviewed at the expiration of the period for which it has effect. (4) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (5) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. (6) If a review of a guardianship order is commenced but not completed before the expiration of the period specified in the order as the period for which the order has effect, the order is taken to be extended until the completion of the review."
8. This is sufficient background to the relevant legislation to consider the grounds of appeal in relation to the guardianship orders.

Ground 1 - (Amended Summons, Prayer for Relief 15) the Tribunal drew the wrong inference of fact from primary facts and misdirected itself in law when finding that the Husband had a conflict in making access decisions.

1. The Tribunal decided not to appoint the husband as the wife's guardian with power to decide who should have access to her. The Tribunal found that if appointed the wife's guardian, the husband would be confronted with a conflict of interest when making decisions about the conditions of his own access to his wife. The Tribunal gave its reasons for this at [116] as follows: "116. The Tribunal considered the following factors and came to the following conclusions regarding whether [the husband] is a person who could be appointed as [the wife's] guardian to make decisions about her access and the conditions of that access. (1) As outlined in the section of these Reasons dealing with the need for a guardianship order, [the wife] had previously indicated that she did not want to see [the wife]. She has since said that she did want to see him. (2) The visits with [the husband] to date have progressed without incident, but Ms D who has been present at the visits expressed the view that [the wife] seems to seek reassurance from her during the visits. (3) The Tribunal has decided that it is necessary for a guardian to make decisions about [the wife's] access to others and the conditions of that access In respect of those matters. (a) Those access decisions include access to [the husband] and the conditions of that access. (b) Currently those conditions include the requirement that the visits be supervised. (c) [The husband] has expressed the view that there is no need for an access function and that the visits need not be supervised. (4) However, as outlined in the section of these Reasons dealing with the need for a guardianship order, the Tribunal is not satisfied that the level of monitoring otherwise available at the aged care facility is sufficient taking into account the circumstances relating to visits as set out in that section of these Reasons. (5) Taking all of these matters into consideration the Tribunal is of the view that [the husband] would have a conflict of interests in making decisions about the conditions of his own visits to [the wife]. (6) Mr Burwood, in an amicus role said that he believes that [the husband] could make decisions about visits by [the wife's] community based friends because he would not be likely to allow a "flood" of visitors to [the wife] because that would upset her. (7) The Tribunal is of the view that it would be impractical to have different guardians deciding about visits to [the wife] by [the husband] on the one part and other people on the other part."
2. The Tribunal also rejected the husband's applications to be appointed as the wife's guardian to make decisions about her health and medical care (at [117]), her services (at [118]), and her accomodation (at [119]).

The Husband's Submissions - Ground 1

1. The husband challenges the Tribunal's findings at [116] on access decisions on the grounds: that it misdirected itself in law, and drew the wrong inference from the facts, when it reached its conclusion in 116.
2. The husband submits that the Tribunal's conclusion on this issue arose from his wrongful exclusion from the 19 March 2015 hearing, as he, the husband, was unable to put evidence or submissions to the Tribunal before the Public Guardian's appointment that he intended to act in the best interests of both the wife and himself.
3. The husband submits that the Tribunal's finding was circular: taken to the extreme, if the Public Guardian had restricted any family member's access to the wife, then that person would be placed in a similar situation, and would be in a position of conflict when determining their own right to visit her.
4. The husband further submits that the Tribunal's decision failed to give consideration to the mandatory consideration in Guardianship Act, s 4(e); namely, the importance of preserving family relationships. And the husband submits that the Tribunal did not, at 116, make a finding of "undue conflict", as required under the Guardianship Act, s 17(1)(b). He submits that the Tribunal's actual finding of "conflict of interest", is not the applicable statutory test under Guardianship Act, s 17(1)(b).
5. The husband submits that the Tribunal should have inferred that the husband did not have any undue conflict of interest that could not either be avoided or otherwise properly dealt with. He posits that the Tribunal could have dealt with any conflicts that could otherwise be characterised as "undue" by either: (i) appointing Mr Burwood, the separate representative or some other person in that capacity for the wife, to have the responsibility for necessary access and accommodation functions in their entirety, whilst appointing the husband with the remaining functions; or (ii) directed the parties to go through an alternative dispute resolution procedure pursuant to NCAT Act, s 36 to explore whether a way around any conflict of interest could be pursued.

Consideration - Ground 1

1. The legal principles relevant to the application of s 17(1) are clear. Lindsay J addressed the question whether a conflict of interest was "undue" within the section in IR v AR [2015] NSWSC 1187, where his Honour stated at [30] - [36]: "[30] Section 17(1), which does not apply to an appointment of the Public Guardian as the guardian of a person under guardianship, is in the following terms (with emphasis added): "17 Guardians (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order." [31] The Tribunal is not precluded from appointing a particular person as guardian if it considers that, although a conflict exists, the conflict is not "undue": SAB v SEM [2013] NSWSC 253 at [61]-[62]. [32] Section 17(1)(b) provides formal recognition of the fundamental principle, applicable under both the Guardianship Act and the general law, that the office of a guardian is that of a fiduciary whose obligations must be measured against the protective purpose of the appointment of a guardian in the particular case: The Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423; Clay v Clay (2001) 202 CLR 410 at 428[37] - 433[49]. [33] The expression "no undue conflict" reflects the reality that, in a particular case, discharge of the obligations of a guardian (e.g. by a member of family living within the same household as the person under guardianship) might necessitate a sharing of resources devoted to the welfare of a person under guardianship, not a complete separation of the lives of guardian and ward. [34] Young J recognised this in Re L [2000] NSWSC 721 at [10]-[12] when, in speaking of what is required by the Court of a person proposed for appointment as a private manager of a protected estate, his honour said the following (in edited form, with emphasis added), so far as is presently relevant: "[10] [In] each individual case the Court looks to see what is for the benefit of the incapable person…. [11] [Both] in the interests of the incapable person and in the interests of minimising later supervision, the Court needs to be satisfied that [proposed] managers are able to provide for the incapable person the service [he or] she needs. [12] in the case of a relative, Court must look to see that there are minimal conflicts of interest, or, if conflicts of interest cannot be avoided, that they are properly dealt with. In the case of a private manager who purports to have financial expertise, the Court needs to be satisfied not only of that person's good fame and character and of his or her ability generally to manage funds, but also that that person has a good conception as to what is required of a fund manager." [35] A "conflict of interest" is "undue" within the meaning of section 17(1)(b) if it is reasonably likely, to an unacceptable degree, to impede the proposed guardian's performance of the duties of a guardian in the particular case. [36] As reflected in W v G (2003) 59 NSWLR 220 at [25], those duties, in each case, include a duty (elaborated in section 4 of the Guardianship Act) to observe the following general principles when exercising the functions of a guardian under the Act: (a) the welfare and interests of the person under guardianship should be given paramount consideration. (b) the freedom of decision and freedom of action of the person under guardianship should be restricted as little as possible. (c) the person under guardianship should be encouraged, as far as possible, to live a normal life in the community. (d) the views of the person under guardianship in relation to the exercise of the functions of a guardian should be taken into consideration. (e) the importance of preserving the family relationships and the cultural and linguistic environments of the person under guardianship should be recognised. (f) the person under guardianship should be encouraged, as far as possible, to be self-reliant in matters relating to his or her personal, domestic and financial affairs. (g) the person under guardianship should be protected from neglect, abuse and exploitation."
2. The reasoning in IR v AR indicates that a conflict of interest will only be "undue" within Guardianship Act, s 17(1)(b) where it is reasonably likely to an unacceptable to a degree that the conflict would inhibit the proposed guardian from performing the functions stipulated by the Guardianship Act. Also in Re X [2016] NSWSC 275, recently Lindsay J also noted the following (at [53]): "Inevitably, in ongoing parental management of the affairs of a mentally impaired, adult child conflicts of interest, and conflicts between duty and interest, are bound to arise. As illustrated by Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423 and Clay v Clay (2001) 2002 CLR 410 at 428-430 and 432-433, courts are mindful of a need to judge these questions in the context of a necessity for management of the affairs of a person in need of protection. That said, the existence of a regulatory regime for the supervision of protected estate managers provides a means by which otherwise unacceptable conflicts impinging upon a fiduciary relationship can be minimised: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [143]-[190]."
3. In my view the Tribunal applied a wrong principle of law when it concluded that the husband "would have a conflict of interest" in making decisions about the conditions of his own visits to the wife. Guardianship Act, s 17(1)(b) requires the Tribunal to be satisfied that there is "no undue conflict" [emphasis added] between the interest of a proposed guardian and a person under guardianship. Notwithstanding that the Tribunal used the words "conflict of interest", rather than "undue conflict of interest" in 116 it might perhaps be possible looking at the context of the Reasons as a whole to conclude that the Tribunal applied an "undue conflict" test, rather than a "conflict" test. But it is not evident from the Reasons viewed as a whole that the Tribunal did this, even though occasionally (such as at [122]) "undue' conflict is mentioned. Such an approach would ordinarily be characterised by the Tribunal identifying particular conflicts of interest and making a balanced judgment as to whether or not they were each "undue". That is generally not the structure of the Tribunal's reasoning. That is sufficient in my view for the Court to uphold this ground of appeal and to set aside the Tribunal's decision and the guardianship order made on 23 February 2016.
4. But the husband only had any kind of conflict in making access decisions for the wife, if a primary finding were made that he himself were unfit to have unsupervised access to the wife. A separate problem in this case is that the reasoning upon which the Tribunal concluded that he could not have unsupervised access to the wife, was based upon the same denial of procedural fairness that led in the Ground 1 challenge to the Tribunal's financial management orders (above), to the conclusion that the Tribunal's decision of 15 March 2015 should be treated as in substance no decision at all.
5. For the reasons previously given, the husband was also denied procedural fairness when he was excluded from the guardianship order hearing on 15 March 2017 and prevented from advancing evidence and putting submissions on that occasion. That meant that the guardianship order made that day should have been treated by the Tribunal in its subsequent considerations as in substance no decision. Once the Tribunal apprehended the denial of procedural fairness that had occurred, the matter should have been approached on 23 February 2016 entirely afresh as though an initial appointment were being made. But it is evident from the Tribunal's reasoning that it did not take this approach (for example, see the access and order renewal issues discussed in Reasons [93] - [101] and the reasons for not appointing the husband as guardian at [118] - [123]). This is a separate basis for setting aside the Tribunal's guardianship order.

Ground 2 - (Amended Summons, Prayer for Relief 17) the Tribunal failed to take into account a relevant consideration, the views of Mr Burwood the separate representative.

1. Mr Burwood, was the separate legal representative for the wife in respect of the husband's application to review the financial management order. At the Tribunal's invitation he also made submissions as amicus during the 23 February 2016 hearing as to the suitability or otherwise of the husband being appointed as the wife's guardian.
2. The Tribunal recorded (at [72]) Mr Burwood's views on the guardianship questions as follows: "72. Mr Burwood was present at the hearing as the separate representative of [the wife] in respect of the application to review the financial management order. Whilst he was not separately representing [the wife] in the review of the guardianship order the Tribunal invited his comment as amicus He made comments to the following effect. (1) At the point of the hearing where matters of accommodation were initially discussed, Mr Burwood said that in his view any guardian appointed under a renewed order should have the "full toolkit" available, including the function of making decisions about [the wife's] accommodation. (2) In later submissions Mr Burwood submitted: (a) He considers the initial involvement of the Public Guardian regarding [the wife's] access to others was warranted as a precautionary measure However the visits between [the husband and the wife] have gone well and in his opinion there is no need for a guardian to continue to make decisions about the wife's] access to [the husband]. (b) [The wife] might benefit from visits with others but there are differences of opinion regarding that matter There might be a need for a guardian to make decisions about [the wife's] access to friends (c) He is of the view that there are no accommodation decisions to be made because there are no current plans to relocate [the wife']"
3. The Tribunal used these findings and conclusions to reach its conclusion at [116].

The Husband's Submissions - Ground 2

1. The husband submits to this Court that the Tribunal erred in failing to identify why Mr Burwood's views at the 23 February 2016 hearing about the wife's guardianship were not taken into account in the Tribunal's reasoning. The husband submits that Mr Burwood's views were mandatory considerations that should have been taken into account in the Tribunal's reasoning.
2. The husband submits that Mr Burwood's views have changed in the husband's favour since the 3 December 2015 hearing. At that earlier hearing Mr Burwood opined that it may be in the best interests of the wife to have an independent guardian, preferably the Public Guardian, although such guardianship arrangements ought to be subject to review.
3. The Tribunal noted that this had changed by 23 February 2016 and that Mr Burwood, in his amicus role stated on that day that he believed that the husband could make decisions about visits by the wife's community-based friends because he would not be likely to allow a "flood" of visitors to his wife, because that would upset her: Reasons at [116(6)]. The Tribunal nevertheless dismissed the husband's guardianship application.
4. The husband submits that the Tribunal was obliged to view Mr Burwood's statements as mandatory relevant considerations, and that the Tribunal's reasons indicate that Mr Burwood's statements were not taken into account in the Tribunal's reasoning process.

Consideration - Ground 2

1. The husband's submissions on this ground are not persuasive. Mr Burwood's statements were taken into account by the Tribunal in its Reasons.
2. For the same reasons as were explained above for Mr Burwood's financial management order submissions, the Tribunal needed to deal with Mr Burwood's guardianship submissions before it could conclude that the husband not be involved in any decision making about access to the wife as the wife's guardian. Mr Burwood particularly emphasised the changes since the Public Guardian had initially taking over of control; views that could not be discounted without good reason.
3. But the Tribunal did mention Mr Burwood's views in the centre of its reasoning in relation to access issues (at 116). It seems from he Tribunal's reasons (at [123]) that it relied on some inconsistent views that the wife had expressed from time to time about contact with the husband (at 117) and her alleged rejection of him as a possible guardian (at [123]) on one occasion in conversation to reach conclusion against the husband becoming guardian that outweighed Mr Burwood's views. But it cannot be said that the Tribunal did not take Mr Burwood's views into account.

Grounds 3, 4 and 5 - (Amended Summons, Prayers for Relief 18 and 19) the Tribunal failed to give adequate or proper reasons as to there no longer being any need for a person to make decisions about the Husband's access to his Wife, and took into account an irrelevant consideration in relation to Ms D and/or denied procedural fairness to the Husband

1. The husband submits that the Tribunal failed to identify in its Reasons why it preferred other evidence over Mr Burwood's evidence at the 23 February hearing to the effect that there was no longer any need for a person to make a decisions about the husband's access to the wife. Moreover, the husband challenges the Tribunal's treatment of the evidence of the wife's paid companion, Ms D as "expert evidence".
2. The first of these submissions has been dealt with under Ground 2. The Tribunal preferred other evidence over Mr Burwood's views.

The Husband's Submissions -Grounds 3, 4 and 5

1. The husband submits that the Tribunal relied heavily upon the evidence of Mr W the aged care facility manager, and Ms D, the wife's paid companion supervising the husband's visits, when making its decision about her guardianship.
2. Mr W's evidence at the 23 February 2016 hearing was that the wife would become anxious when visitors were in her accommodation area, and that she had difficulty recognising people and remembering events from one day to another. Ms D's evidence was that during her visits with the wife, the wife would make eye contact with her, as if for reassurance, or to assist with answering questions, and that she would not initiate conversations. The Tribunal accepted the evidence of both Mr W and Ms D. It found on the basis of their evidence that it was not able to reach a positive finding that the husband had a personality that was generally compatible with that of the wife.
3. The husband takes issue with the weight the Tribunal gave to Ms D's evidence. The husband submits her evidence is open to interpretation. He notes that the Tribunal made no findings as to whether the wife suffered any anxiety prompted by time spent with the husband.
4. Moreover the husband submits: that the Tribunal treated the evidence of Ms D as expert evidence; but that the husband was never informed that she was to be treated as an expert, rather than a lay witness. In support of this contention, the husband submits that in the Reasons the Tribunal states that Ms D's "impression is based on more than 20 years' experience working in the field of disability, aged care and family violence": Reasons at 83.
5. The husband argues that there was a denial of procedural fairness, as a result of his not being informed that Ms D's testimony would be used as expert evidence. Had he been aware of this, he submits that he would have asked her questions or objected to her evidence. He argues that due to the Tribunal's denial of procedural fairness, he was not given that opportunity.
6. The husband submits that less weight than the Tribunal gave, should have been given to Ms D's evidence and more weight should have been given to Mr Burwood's views as amicus. He argues that had the Tribunal done this, it would not have found that he had a personality that was incompatible with acting as the wife's guardian.

Consideration - Grounds 3, 4 and 5

1. The husband's challenge to Ms D's evidence on the basis that it was not expert evidence fails. Her qualifications as social worker were known to all sides. Her background was one of the reasons she was supervising the husband's visits to the wife. She was not giving expert evidence but her overall expertise could be taken into account by the Tribunal, as it did. It was sufficient for her to give the evidence that she purported to give. The Tribunal was entitled to give some weight to Mr W's and Ms D's evidence. No error in shown here. These grounds fail.
2. The real issue in relation to Ms D's evidence and the findings about her is whether or not it was probative of anything that really mattered in the proceedings. Her evidence in many ways supported that of the husband and was otherwise quite equivocal. Her testimony about a few of the wife's looks towards her is a slight basis to infer that the wife was discomforted by visits from the husband. In my view, such an inference cannot readily be drawn from her evidence, especially where the wife was agreeing to the husband's visits continuing. These issues are dealt with below on the Court's reconsideration of the guardianship orders on the new hearing.

Ground 6 - (Amended Summons, Prayers for Relief 23) the Tribunal drew the wrong inference of fact from primary facts by taking into account the claimed rejection by the Wife of her Husband as her guardian

1. The Tribunal noted that the representative of the Public Guardian, Ms Kemp, stated that on 8 February 2016, the wife advised Ms Kemp that she "did not want [her husband] to make decisions on her behalf however she was unable to identify an alternative Public Guardian": Reasons at [115]. The Tribunal also noted: in response to questioning by counsel for the husband, Ms Kemp accepted that she had not asked the wife whether she wished "a government body to make that decision"; and noted that although Ms Kemp had explained her role with the Public Guardian to the wife Ms Kemp was of the view that the wife "did not fully understand" Ms Kemp's role: Reasons at [115].
2. The Tribunal subsequently held that it was "not able to reach a positive finding" that the husband "has a personality that is generally compatible with that of [his wife]": Reasons at [123]. The grounds for the Tribunal's conclusion included, inter alia, the wife's "rejection of him [the husband] as a possible guardian when that was raised": Reasons at [123]. The Tribunal's reasoning at [123] is set out in ful below: "[123] The Tribunal is also of the view that despite their long relationship, including many years as a married couple, the current circumstances, including [the wife's] previously expressed views about contact with [the husband], her rejection of him as a possible guardian when that was raised, her current advanced dementia and observations about the visits expressed by Mr W, Ms D and [the husband] are such that the Tribunal is not able to reach a positive finding that, at the present time, [the husband] has a personality that is generally compatible with that of [the wife]".
3. The husband contends that the Tribunal erred in inferring that the wife had rejected the husband as her possible guardian.

The Husband's Submissions - Ground 6

1. The husband submits that the wife's remarks to Ms Kemp should not have informed the Tribunal's decision "for a number of reasons, one of which is the incapacity of [the wife], and the second, the way in which the questions were asked".
2. As to the wife's incapacity, the husband submits that her statements cannot be relied upon. He grounds his submission on several matters. The wife's hospital record of 4 December 2014 observed "asphasic communication … will answer 'no' when she means 'yes' and 'yes' when she means 'no'". In July 2015, the clinical neuropsychologist, Ms K, examined the wife at the request of Ms Kemp, an assessment "prompted by the inconsistency of her responses to questions about whom she would/would not like to visit her". That report concluded that "[the wife's] statements cannot be relied on to provide an accurate indication of her thoughts".
3. As to the way that the questions were asked, the husband submits that Ms Kemp "asked closed questions, not open ones, didn't explain the background to the issue, that there had to be a guardian, et cetera". The husband also complains that Ms Kemp "did not involve the separate representative in this meeting or in this questioning".
4. The husband further submitted that, in light of the appointment of Mr Burwood as the separate representative for the wife due to her lack of capacity, the views of Mr Burwood "should have been taken into account by the Tribunal, or at least given some priority, given that they also have the additional component of representing what the separate representative thinks is in [the wife's] best interests".
5. The husband submits that the Tribunal should have found that this factor of the wife's presumed rejection of the husband as her guardian, was a neutral factor and should not have been weighted against the husband.

Consideration - Ground 6

1. The husband's submissions are persuasive. The Tribunal could not rationally have inferred that the wife had rejected the husband as her possible guardian, without also expressly rejecting the professional views of Ms K about the wife, "I believe that [the wife's] statements cannot be relied upon to provide an accurate indication of her thoughts". If Ms K's evidence were accepted, no inference can be drawn about the wife's wishes in relation to her guardianship. The problem with the Tribunal's reasoning is that in [123] it expressly relies upon the wife's "rejection of him as a possible guardian when that was raised with her". That conclusion clearly assumes that the wife's statements are a reliable indication of her thoughts. Without expressly rejecting Ms K's evidence that inference is not rationally available. All the more so in this case where the hospital records show many instances of the wife saying "yes" when she means "no" and "no" when she means "yes", particularly in response to closed questions, as was demonstrated in the hospital notes on 4 December 2014.
2. This is not a case of there being no evidence on which the Tribunal could act to infer the wife's rejection. What Ms Kemp said clearly was some evidence. But with the wife proven to be suffering from aphasia, the Tribunal had to expressly deal with the issue of how Ms Kemp or the Tribunal could draw any such inference from an aphasic patient, before giving any weight to Ms Kemp's evidence. The Tribunal did not do so. This falls into the category of case in my view that no reasonable decision maker would have draw the same factual inference or conclusion from such underlying evidence: see Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611, at [625], [643] and [648]. In my view this ground is made out and the guardianship order should be set aside on this ground. It is not necessary to consider the husband's submissions about Ms Kemp's closed questions.

Ground 7 - (Amended Summons, Prayer for Relief 24) the Tribunal drew the wrong inference of fact and/or misdirected itself in law, when it found that the Husband did not have a personality compatible with the Wife

1. Guardianship Act, s 17(1)(a) provides that a person shall not be appointed as a guardian unless the Tribunal is satisfied that "the personality of the proposed guardian is generally compatible with that of the person under guardianship".
2. The Tribunal held that it was "not able to reach a positive finding" that the husband "has a personality that is generally compatible with that of his wife ": Reasons at [123]. The Tribunal noted that in coming to this view, it took into consideration "the current circumstances, including the wife's previously expressed views about contact with her husband, her rejection of him as a possible guardian when that was raised, her current advanced dementia and observations about the visits expressed by [Mr W], [Ms D] and [the husband]": Reasons at [123].
3. The husband contends that the Tribunal erred in coming to this conclusion.

The Husband's Submissions - Ground 7

1. In addition to the matters the husband advances under Ground 6, he submits that the Tribunal should not have given any weight to the evidence of Ms D for the reasons noted in Grounds 4-5. The husband also submitted that the Tribunal should not have "taken into account" the evidence of Mr W or considered it as "overriding or qualifying the views of Mr Burwood".

Consideration - Ground 7

1. Any assessment of the question of whether the husband "has a personality that is generally compatible with that of [the wife]" in this case must start with the undisputed history of this couple: the husband and wife had a 32 year relationship in which there is no evidence that either of them sought to separate or divorce; they had lived together, conducted businesses together, bought property together and travelled together. A powerful inference of their compatibility arises from this history. Clear findings and reasons would be required in the Tribunal's Reasons to displace this inference.
2. But paragraph [123] is a balancing exercise. Subject to this Court's conclusion in relation to Ground 6 about the wife's rejection of the husband as a possible guardian based on Ms Kemp's views, the balance of paragraph [123] represents, in my view, a conventional weighing of evidence that was available to the Tribunal. The paragraph mentions the long relationship and then weighs some material against it, namely the views of Mr W and Ms D.
3. In the next section of these reasons, upon the new hearing, this Court reaches a different view, to that taken by the Tribunal. But it is not clear that the Tribunal erred in the relative weights that it gave to the evidence in reaching its conclusion. This result on Ground 7 is of course subject to the problem identified in Ground 6, which vitiates for other reasons the conclusion of personality incompatibility.

Action on Review of the Guardianship Order

1. This Court has already decided to deal with this appeal by way of a new hearing, both with respect to the financial management orders and the guardianship orders: NCAT Act, Schedule 6, clause 14(3). The Court may now make such orders as it considers appropriate in light of its decision on the appeal, including to confirm, affirm, vary, quash, set aside existing orders or to substitute another decision for the decision under appeal, or to review part of the case for reconsideration by the Tribunal: NCAT Act, Schedule 6, clause 14(4).
2. As is the position in relation to the financial management orders, it is not appropriate to remit the Tribunal any of this case for reconsideration. The reasons for this are much the same with respect to the guardianship orders as they were with the financial management orders. First, time is critical; the wife's dementia is progressing, re-establishing such relationship she can with her husband with the assistance of his more frequent visitation is highly desirable. Leaving the current orders in place until a fresh Tribunal hearing in my view would not be in the wife's best interests. Secondly, this Court has had the benefit of extensive evidence on appeal about the husband's and wife's financial affairs and personal history and has been able to examine the transcript of the important 23 February 2016 hearing before the Tribunal. Thirdly, it is important for this Court, now that it is seized with the detail of this matter to completely rectify the consequences of the denial of procedural fairness to the husband which occurred at the outset of this proceeding before the Tribunal. The analysis of the various grounds of appeal above shows that the consequences of an initial denial of procedural fairness to him were never fully resolved by the Tribunal. This Court can resolve them now by making the decision in the Tribunal's place.
3. The Tribunal, and now this Court on appeal, is entitled to refuse to review a guardianship order, if in the opinion of the Tribunal (or the Court) the request does not disclose grounds that warrant a review: Guardianship Act, s 25A. The evidence adduced on this review in my opinion discloses ample grounds warranting a review. The errors of law that have been identified require correction.
4. The Tribunal, and now this Court, can vary, suspend, revoke, or renew or vary the guardianship order already in place: Guardianship Act, s 25C. It is convenient to deal briefly with the issue of revocation or suspension first.
5. The husband's evidence on this review, including his fresh evidence, must now be considered. It throws a different light both upon both the initial events the subject of the Tribunal's orders and explains the developments which have occurred since the Tribunal's February 2016 hearing.
6. There is no basis either to revoke or to suspend the guardianship order. Both the medical and lay evidence strongly suggests that the wife's mental capability has continued to deteriorate, since she has entered the local aged care facility. A continuing guardianship order is required for her. The remaining issue on this appeal is whether the Public Guardian should continue in the role as the wife's guardian or whether the husband should now be appointed to that role.
7. That decision must be taken under the direction of the Guardianship Act's several commands, some positive and some negative. The positive statutory commands in Guardianship Act, s 4(a) to (g) require the Court to observe the seven principles identified earlier in these reasons, when it exercises functions under the Guardianship Act in relation to persons under guardianship.
8. The Court will deal with the questions in this section of the appeal by reference to such of these seven principles as are applicable. Not all these principles have immediate relevance to the guardianship orders in this case. The statutory order of these principles is not significant and a slightly different logical order is followed here.
9. The Court must also consider the statutory prohibitions under Guardianship Act, s 17 on the appointments of certain guardians. A person should not be appointed as a guardian, unless the Tribunal is satisfied of: (a) the compatibility of the personality of the proposed guardian with the person under guardianship; (b) the absence of undue conflict of interest between the two; and, (c) the willingness of the proposed guardian to exercise the relevant functions. The provisions of Guardianship Act, s 17 are set out earlier in these reasons. The Court's reasons dealing with the various grounds of appeal already show that the Court is satisfied that these statutory prohibitions do not prevent the husband's appointment as guardian: see Grounds 1 and 7.
10. (a) The Wife's Welfare/Interests and (g) Protection from Abuse or Neglect. Does the appointment of the husband as the wife's guardian, or the confirmation of the Public Guardian in that role, best promote the wife's welfare and interests? The Court would not consider appointing the husband as the wife's guardian: (1) if there appeared to be any risk of harm to her welfare or interests through his appointment; and (2) if in all the circumstances confirmation of the appointment of the Public Guardian was more consistent with the wife's welfare and interests than the substitution of the husband as appointee.
11. The most important sub-issue here is whether the husband now represents any risk of injury to the wife. This issue requires some analysis of the evidence of the events of October 2014 and of the husband and wife's relationship since then.
12. A number of factors support the husband's account that he was not responsible for his wife's injuries on 19 October 2014. And there is no other evidence he engaged in domestic violence towards her on any other occasion. No evidence suggests the local hospital has recorded any other assault-related admissions for her. All the couple's acquaintances say in evidence that domestic violence is completely inconsistent with the relationship between the couple. The deep entwinement of the couple's successful financial affairs through the conduct of a general store business and the development of properties, which could only have been achieved by long-term high level co-operative behaviour that is hardly consistent with a relationship characterised by periodic episodes of violence and the distrust and resentment consequence upon such behaviour. The couple were continuing to buy and develop such properties right up until the wife's admission to the local hospital. Their shared future plans to travel together around Australia, and possible move to the North Coast, are not readily consistent with such a conclusion. Moreover, it seems generally improbable that a man in his mid-60s would suddenly commence being violent to his wife, when there was no past indications of such misconduct. Interestingly neither of the husband's critics, the wife's sister and Ms N, accuses him of domestic violence before November 2014.
13. The husband has denied any domestic violence towards the wife on the night in question or at any other time. He has said he abhors such conduct. The allegations of domestic violence have never been put to him in cross-examination in the proceedings before the Tribunal or this Court and answered. But his statements and sworn evidence before this court clearly denies such conduct. In the absence of any challenge to them, his denials are material of very considerable weight for this Court to take into account in his favour. The denials may be discounted if there were strong objective or other persuasive evidence to the contrary. But there is not.
14. The depth and quality of the husband's evidence on this appeal tells its own story. The husband has given a number of detailed statements about his relationship with the wife, the history of their married life and their financial affairs. Not only do these statements include a satisfactory account of the personal and financial relationship of the couple, but they deal in more than sufficient detail about every allegation which has been raised against the husband by anyone in the course of the various Tribunal hearings.
15. The fact that these statements have been prepared in the form and detail that they have been, says much about the husband's openness in accounting for his financial and personal behaviour and his commitment toward the wife. Although their content is far more important than their volume, the volume of the evidentiary material is not inconsiderable and shows the husband's desire to give the fullest possible account of himself. The husband's first statement of September 2015 is 55 pages and 256 paragraphs with annexures. The husband's second statement of 14 November 2015, produced in anticipation of the hearing on 3 December 2015, is some 21 pages and 71 paragraphs with annexures. The husband's updating statement of 3 December 2015 covers visits that the husband made in more recent times to the wife in November and December 2015 just before the 3 December 2015 hearing and is 17 pages and some 88 paragraphs with annexures. Before the 23 February 2016 Tribunal hearing the husband filed another substantial statement dated that day and of some 30 pages and 130 paragraphs with annexures. Finally the husband filed a further updating affidavit for these appeal proceedings sworn on 15 August 2016 of some 4 pages and 15 paragraphs.
16. The passage of time since the Tribunal's hearing on 23 February 2016 presents the Court with different evidence about the husband from that the Tribunal considered. Prominent features of this evidence are the husband's continuing regular weekly visits to the wife at the local aged care facility (26 visits since the Tribunal's hearing) and his consistent personal and physical support for the wife based upon his demonstrably close concern for her welfare, using information that could only have been acquired through attentiveness during his regular visits to her.
17. Until the Court made orders on 21 December 2016 varying the Tribunal's orders, all of the husband's visits were required to be undertaken under supervision. Ms D, the supervisor of the husband's visits to the wife under the Court's previous orders, has not been advanced as a witness to dispute that any of the post-February 2016 visits have gone well. Nor has she been called to give evidence to promote a case that the husband's personality has not proved throughout his visits to be compatible with that of the wife. The Public Guardian's submitting appearance and failure to adduce evidence from Ms D assists the Court to infer that there is no continuing concern about the wife's welfare from these visits.
18. The primary allegations of domestic violence came from the wife in the course of an interview with Dr H on 20 October 2014, the day after her admission. But there is considerable dissonant evidence (of which the wife is the only likely source) countering her 20 October allegations, both in the hospital notes and other objective materials. This contradictory information appears both before and after the wife's statements to Dr H on 20 October. For example the hospital notes record that on 21 October 2014 she stated she fell at home. On 22 October 2014 she spontaneously expressed to nursing staff that she wanted to call her husband. On 21 or 22 October in an interview with a social worker she "reiterated her story of falling onto a table and her husband [the husband] finding her". On the same date she denied that [the husband] had hurt her" and explained "that she had been drinking before the accident". This is consistent with his account that she had been drinking significant quantities of alcohol before the accident.
19. The witness evidence provides a powerful counterweight to any inference of domestic violence against the husband. Evidence from the couple's friends is compelling. The Court has made extensive findings based on the evidence of the wife's and the husband's friends. As late as December 2015 the wife still recognised these friends, did not want them to leave the facility, and was asking them about when the husband would next visit.
20. The husband's case includes a considerable number of statutory declarations of evidence from long-standing friends and relatives about his good relationship with the wife. In addition to his evidence, these statutory declarations bespeak a relationship between this couple that was harmonious, co-operative and loving, and without any hint of domestic trouble, let alone domestic violence before October 2014. The picture presented is far distant from the bare facts previously alleged against the husband. These are some of the people who the wife recognised at the local aged care facility and to whom she has addressed questions about the husband visiting her. The following paragraphs contain a brief summary of the effect of their evidence, all of which the Court accepts. This evidence is so extensive that is not possible to provide anything other than a short summary of it. None of these witnesses can be named but their role in the couple's life can be mentioned. Collectively their evidence weighs heavily in the husband's favour. It was before the Tribunal but the Tribunal did not mention it in the Reasons.
21. The statutory declarations expound a number of themes: the strong affection between the husband and the wife and the lack of any domestic discord between them; the wife's growing dementia and her capacity to wander and bump into things and become bruised as a result; the growing influence over the wife of Ms N as the wife's dementia developed; their willingness to visit the wife; and the wife's desire to see the husband after October 2014. A few examples will suffice.
22. A business owner in the local area, who has known the couple for almost 20 years and is a close friend, describes their relationship as "loving and caring". He says the wife's dementia was growing in 2013 and she had been drinking heavily as a result and that she had even had a car accident. After October 2014 she said to this witness that she wanted "to stop the AVO".
23. One former employee at their general store business developed a close relationship with the couple. She witnessed nothing other than happiness in the relationship between husband and wife. But she was well aware that the wife bruised easily because this witness did as well. She would welcome any opportunity to visit the wife if it were permitted. She observed Ms N start to take control of the wife's society and steer her away from other people in the local community.
24. Another witness was a customer in the shop and a casual employee. She observed that the wife did drink alcohol regularly. She observed Ms N to be quite manipulative and possessive with the wife. She would like to visit wife if she could.
25. Another customer and close family friend of 17 years had never heard the husband raise his voice against the wife. This friend has observed the wife bumping into objects in the shop and that she bruised easily as a result. Again this witness observed Ms N's possessiveness over the wife. This witness would wish to see the wife if it were permitted.
26. Two other members of the local community had managed to see the wife in the hospital. Both these women attest to the very close relationship between this husband and wife and that they were very much in love. They both happened to see the wife in a section of the hospital where she was isolated from the husband. The wife asked both of them for the husband.
27. Yet another friend had seen wife in hospital and the wife had been distressed that the friend was required to leave and the wife clearly intimated to her that the wife wanted more company from her friends.
28. Both the husband's biological daughter and the sister of the husband's first wife attest to the good quality of the couple's relationship, the fact that the wife was starting to drink heavily in mid-2014 and that she bruised easily. The husband's biological daughter attests to the excellent relationship between the wife and the biological daughter's six children, who the wife likes to see and the biological daughter would arrange for the wife to see them if she were permitted to do so.
29. (d) The Views of the Wife in Relation to Guardianship functions. For the same reason that the Court has found unreliable the views of the wife about whether any domestic violence occurred between the husband and the wife, the medical evidence is a sound basis to infer that the wife cannot express reliable and consistent views about how the functions of guardianship should be exercised in relation to her. The Court has found that the questions asked of her about her preferences in relation to her guardianship were not likely to elicit reliable responses from her, as they did not offer her a full range of choices. But the medical evidence raises the concern that whatever range of choices about guardianship was given to the wife, her verbalised answers would always be a poor guide to her views.
30. But the principles in Guardianship Act, s 4(d) still have a role to play in this case. The wife has continued to receive the husband's weekly supervised visits. Since his visits commenced the protocol has been that she is always asked at the end of each visit by Ms D whether she wants to see the husband again. The visits have continued up until the hearing. The wife's consistent consent to the acceptance of weekly visits by the husband, without rejecting future visits, is probably the most reliable available indicator of her "views" that can now be gained. It points to her fundamental comfort with his presence. Not only has he been present for her on a weekly basis but he has been using the weekly visit to ascertain her personal needs and to ensure that she has proper fitting underwear and presentable clothing reflecting her longer term preferences. This history supports the inference that her own views are compatible with his continued management of issues relating to her personal dignity and daily living.
31. The "views of a person under guardianship" can be monitored in yet another way. The sworn evidence of the couple's friends shows several examples of the wife's unprompted expression of her desire for the husband's company throughout 2015. The Court must of course be cautious from the medical evidence, such as that of the clinical neuropsychologist, Ms K, about the quality and reliability of the wife's expressions of her choices, because of her advancing dementia. Despite her illness, the wife's spontaneous recognition of friends, followed by her asking for her husband, must be given weight: the wife's recognition of her friends seems, to have triggered surviving recollections of her husband and followed by an immediate response of her asking for his company.
32. (e) Preserving Family Relationships. In this case, the s 4(e) principle of preserving family relationships has important status. The husband's relationship with the wife is a prime example of a "family relationship" of the wife. The Court has a duty to recognise the importance of preserving such family relationships: Guardianship Act s 4 (e). The wife's principal proven family relationships are with and through the husband. The wife has step-children (the husband's children by an earlier marriage) and step-grandchildren, through them, here in Australia. She also has a sister in New Zealand. But the evidence of any regular pre-October 2014 face-to-face contact between the wife and her sister in New Zealand is not strong. There is evidence before this Court from the social worker's records of the sister in New Zealand not having the practical capacity in her household to be able to accommodate the wife for a visit at the sister's home in New Zealand over Christmas 2014 due to space limitations and other competing family requirements for the space.
33. Continuation of the regime of supervised access is a major impediment to the preservation and fostering of the wife's relationships with her family. The Public Guardian has declined to increase the amount of contact that the husband can have with the wife beyond one visit per week. The Public Guardian says that the supervisor for these visits, Ms D, is only available once a week and that to introduce another stranger to the wife as a visit supervisor would not be in the wife's best interests. The Public Guardian's logic is acceptable whilst the current supervised access and guardianship orders are in place. There is evidence that the introduction of strangers to the local aged care facility troubles the wife. But the real question is whether supervised access is necessary any longer. In my view it is not.
34. (c) Living a Normal Life in the Community. The current orders for supervised access to the wife are no longer necessary. The husband is not a stranger. He can and wants to see her more frequently. Moreover, current orders inhibit visits by other friends and family members. Many of these people are not strangers to the wife, as she has recently recognised some of them. They should not present any anxiety for the wife. They can and want to visit her.
35. Supervision of the husband's visits to the wife should be ended. The need for supervision of his visits has long since disappeared. The wife can best have the benefit of the husband's companionship and the support of family and friends if he is given unrestricted access rights to her and the right to decide the access of others. Showing his insight and objectivity, the husband has said he does not seek to exclude his apparent detractors, Ms N, Ms R and the wife's sister, from access to the wife. The current arrangements have become an unnecessary encumbrance upon the wife having the benefit of her husband's company.
36. The wife is always likely to need the supportive environment of an aged care facility. Her mixing in the general community is not a likely future scenario. But engaging with the friends that she does have in the wider community has force as giving effect to a statutory principle under the Guardianship Act. These friends have not been able to see her under the current guardianship orders. The careful admission of some of these friends back into her regular circle by someone, such as the husband, who knows her and them all does not appear to have any obvious risk to her welfare or interests; giving her the opportunity of such visits points to a need for a more flexble decision-making regime for access to her.
37. (b) Freedom of Decision and Action and (f) Self-Reliance. The Court agrees with the Tribunal that the guardianship order should remain in place. This order constrains the wife's freedom of action and decision-making to a high degree. But it is in her best interests.
38. Indeed one other constraint is in her best interests. As these reasons show, the Court will revoke the appointment of the Public Guardian and appoint the husband as the wife's guardian. But it is too soon for the husband to have the capacity to move the wife out of the State, to Queensland where he suggests in his evidence that he wished to take her in the future. Such a move would be incompatible with many of the other principles which the Court is required to consider under Guardianship Act, s 4. Importantly such a move, without medical evidence in advance, may be inimical to her welfare and interests. She can readily engage with her acquaintances who come to visit her here at the local aged care facility. And if more distant family members wished to see her, they could travel to visit her while these orders are bedded down.

The Husband or the Public Guardian?

1. Were he to be appointed as guardian the husband could provide a number of benefits to the wife that she does not presently enjoy, especially through flexible and potentially enriching access arrangements for the wife. If the husband himself sees the wife more often (and he can more readily do so without supervision), she will have much more of his company, for which on evidence she has long been asking. The Court has no concern about her welfare from unsupervised visits from the husband, who has been looking after her personal care and personal grooming for some time.
2. Moreover, the wide and supportive network of people in the local area, who are well known to the wife, have offered to come and visit her. Whether or not they can be of assistance is a matter which can best be assessed flexibly by someone, such as the husband, who knows the wife and knows them and who in consultation with the local aged care facility is able to decide what future access they should have to the wife.

The Term of Any Guardianship Order

1. What should be the term of any future guardianship order? A further period of stability is needed in the wife's best interests. All parties to these proceedings need to assess and make the necessary adjustments to the changes which are given effect by the orders now being made. There should be a period of further stability which should be not less than 24 months from the date of the Court's orders, on 21 December 2016. The end of term review under Guardianship Act, s 25(2)(b) and (3) will take place at about that time. No order countermanding the requirement for an end of term review will be made under Guardianship Act, s 25(3)(b).
2. During that period of 24 months it is expected that: (1) the husband will have an opportunity to see the wife at the aged care facility as often as he likes; (2) the husband, as guardian, will have an opportunity to reintroduce the wife to some of the friends she had known in the local area for many years and whom she may still recognise as friendly faces;(3) the wife's local doctor and the nursing and ancillary staff in the aged care facility will have the opportunity of assessing the wife's progress under her husband's guardianship; and, (4) the Tribunal will have an opportunity at the end of term review to assess the operation of the revised arrangements.
3. The husband may encounter uncertainty about the administration of these new orders. Were that to occur, with the assistance of his legal advisers, the husband could apply to the Tribunal for directions under Guardianship Act Part 4, s 28.

Conclusion and Orders

1. The Court made the orders below in this matter on 21 December 2016. The Court indicated at that time that it would deliver its reasons for those orders at a later date. The Court's reasons were provided to the parties on 27 February 2017.
2. Accordingly, the Court makes the following orders and directions on 21 December 2016: 1. Order pursuant to clause 14(3) of Schedule 6 of the NCAT Act that this appeal will be dealt with by way of a new hearing with all evidence adduced at the hearing of these proceedings on 19 August 2016 being evidence on that new hearing. 2. Order pursuant to clause 14(4) of Schedule 6 of the NCAT Act that the appeal in the husband's Amended Amended Summons commencing the appeal, filed on 19 August 2016 be allowed. 3. Order that the decision under appeal (being the orders made by the Fourth Defendant, the Civil and Administrative Tribunal ("the Tribunal") on 23 February 2016 and the statement of reasons issued by the Tribunal and given to the husband on 3 May 2016 be quashed and another decision be substituted for such decision. 4. Upon the conclusion of the new hearing ordered pursuant to Order 1 hereof, the Court now substitutes for the decision of the Tribunal quashed pursuant to Order 3 the decision that: 1. the husband be appointed under the Guardianship Act 1987 as the guardian under the existing guardianship order of the wife, in place of the First Defendant, the Public Guardian and in his said capacity as guardian the husband is ordered for a period of at least 12 months or the next review of the existing guardianship orders, whichever is the earlier, not to remove or seek to remove the wife from outside State of New South Wales; and 2. the husband be appointed under the Guardianship Act as the financial manager of his wife's estate under the existing financial management orders in respect of her estate in place of the Second Defendant, the New South Wales Trustee and Guardian and in that capacity the husband is ordered to take prompt and reasonable steps to sell such of the estate properties as are necessary by applying the proceeds thereof to pay down to zero the accommodation bond for the wife's present nursing home accommodation. 1. Direct that the husband provide a copy of these orders to the Public Guardian, the NSW Trustee and Guardian and the Tribunal by 4pm on Thursday 22 December 2016. 2. Grant leave to each of the husband, the Public Guardian and the NSW Trustee and Guardian, to apply by motion up until Friday 3 February 2017 in relation to the implementation of these orders and as to whether any adjustment is necessary to the final form of the orders. 3. The Court makes no order as to costs, to the intent that each party shall bear his and its own costs of these proceedings.
3. Before the delivery of these reasons, the Court extended the date in Order (6) of the orders made on 21 December 2016 to 27 February 2017. But these reasons delivered on 27 February 2017 also indicate that it may become necessary to add an overall time limit of two years to the time periods specified in order (4) above. The Court now makes the following supplementary orders for the following reasons.
4. In his affidavit of 16 August 2016 the husband offered to "take any other steps that the Court thinks necessary in order to protect the interests of [the wife]". In light of the Court's full reasons the husband, and indeed other parties, may wish to put submissions about what other steps should be taken to protect the interests of the wife prior to the next review. The Court has already made some orders on 21 December but there may be others that these reasons indicate should be made. For example more specific guardianship orders may need to be made dealing with the wife's health and medical care, services and accommodation over the next two years. Liberty to apply will be granted for that purpose.
5. For example, it may be thought that periodic financial reports to NSW Trustee may be useful. Directions may be made under the NSW Trustee and Guardian Act to achieve this.
6. But in order to bring these matters to finality as quickly as possible the Court will grant liberty to the parties to approach the Court at any time in the next three days in order to make supplementary orders.
7. The Court's orders today therefore are: 1. Grant liberty to apply in relation to the implementation of and any adjustments to the Court's orders of 21 December 2016: 2. The parties are requested to make use of the liberty to apply provided for in order (1) if possible on 27 February, 28 February or 1 March 2017 and may contact my associate to arrange a suitable time for the matter to be mentioned. 3. Direct the plaintiff to notify relevant persons within the NSW trustee and Public Guardian of these orders.

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: 07 March 2017