YJY v YJX

YJY v YJX - [2024] NSWCATAP 179 - NSWCATAP 2024 case summary — Zoe

[4]

Background to the decision under appeal

In August 2020, in separate applications, the Spouse and the appellant requested NCAT to make guardianship and financial management orders in respect of the father. At a hearing on 22 September 2020, the Tribunal considered those applications together and declined to make a guardianship order in respect of the Father. The Tribunal declined to exercise the discretion to make a guardianship order, reasoning that any decision about the Father's personal affairs could be made informally without a guardianship order. In addition, the Tribunal decided to make a financial management order and committed the management of the Father's estate to the NSW Trustee and Guardian.
On 23 October 2023, the appellant made a further application to NCAT requesting that a guardianship order be made in respect of the Father and that she be appointed as guardian. In that application, the appellant claimed that major decisions had been made on behalf of the Father by the Spouse without consultation with her or her sisters. In addition, the appellant claimed that the Father's health and care needs were not being met.
On 3 January 2024, the Spouse made an application for a guardianship order and requested that she be appointed as the Father's guardian.
At a hearing on 23 February 2024, the Tribunal considered both applications.
At that hearing the parties agreed that the Father is "a person in need of a guardian" within the meaning of s 14(1) of the Guardianship Act 1987 (NSW) and that the discretion to make a guardianship order should be exercised. However, the parties disagreed about who should be appointed guardian.
The Tribunal decided to make a guardianship order for a period of 12 months with the functions of accommodation, health care medical and dental consent and restrictive practices (chemical restraint) (the guardianship order). The Tribunal found that neither the appellant nor the Spouse was able to exercise the functions conferred by that order and appointed the Public Guardian as the Father's guardian. This is the decision under appeal.

[5]

The Appeal

The appellant is entitled to appeal from the decision under appeal, an "internally appealable decision", on any question of law or, with the leave of the Appeal Panel, on any other ground: NCAT Act, s 80(2)(b).
The appellant is required to identify with precision the question of law said to be raised by the appeal: Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 at [6], [22]; Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 at [13].
The notice of appeal and submissions in support contained an extensive commentary about the decision under appeal but did not articulate any question of law. In considering whether she had identified a question of law, because the appellant was not legally represented in the appeal, we adopted the "more generous or benevolent approach" endorsed by the Court of Appeal (Griffiths AJA, Meagher and Kirk JJA agreeing) in Kudrynski v Orange City Council [2024] NSWCA 33 at [50]-[51] and ask whether, as a matter of substance, there exists a question of law.
From the notice of appeal, the material filed in the appeal by the appellant and her oral submissions, the following questions of law appear to be raised: 1. Whether by appointing the Public Guardian as the Father's guardian the Tribunal misapplied ss 15 and 17 of the Guardianship Act. 2. Whether there was no evidence to support the "family conflict finding". 3. Whether there was no evidence to support the finding that the appellant was unable to exercise the functions conferred by the guardianship order.
In addition, the appellant seeks leave to appeal on the grounds that each of the findings identified in (1) and (2) above were against the weight of evidence.
At the hearing, the appellant agreed that the above grounds encapsulated her concerns about the decision under appeal.
The Spouse disagrees that the Tribunal made errors of the type identified by the appellant and opposed leave to appeal being granted.
The Public Guardian neither supported nor opposed the appeal.

[7]

Appointing a guardian: statutory framework

Where the Tribunal decides to make a guardianship order, it must appoint a person or persons aged 18 years or more as the guardian of the person under guardianship: Guardianship Act, s 16(1)(a).
Where, as in this case, the Tribunal decides to make a continuing guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: 15 Restrictions on tribunal's power to make guardianship orders … (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. …
Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1) of the Guardianship Act: 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.
Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act (the section 4 principles): 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.

[8]

Reasons for appointing the Public Guardian

After deciding to make a guardianship order in respect of the Father, at [38]-[44] the Tribunal considered who should be appointed as the Father's guardian. The appellant and the Spouse each proposed that they be appointed. Each opposed the appointment of the other.
At [39]-[40], the Tribunal outlined the appellant's submission that she was able to act as the Father's guardian: "39 [The appellant] said that a Public Guardian should not be appointed as 'it is not our choice'. In relation to conflict, she said that she does not understand that there is any conflict. She said that they have a disagreement but this is not conflict. If she was appointed as the guardian she would set up a meeting with the aged care facility and ensure that a care plan is put in place to accurately reflect her father's needs. She would also convene a one-on-one meeting with her father and work out what he wants and work together to make appropriate decisions. What is strikingly obvious, to date, this has not been able to occur on an informal basis. The inference we draw is because of conflict or disagreement between [the Spouse] and the family members. We accept and prefer [the director of clinical services of the Facility where the Father resided (the Director)] evidence in this regard. 40 We asked [the appellant] how she would deal with any accommodation decision given that she wants her father to possibly move from his current facility. She said that she would discuss with family members, review his care plan and activities of daily living. She would 'give it a 6 month trial'. She would discuss with [the Spouse] and see what her concerns were. If they cannot agree she said 'one would have to give up, whoever gives valid reasons for him to stay in a particular facility'."
At [42], the Tribunal outlined the Spouse's submission that she should be appointed as the Father's guardian: "[The Spouse] said that she has been [the Father]'s wife for a long time and should be the guardian. She takes him to all appointments and it is unlikely [the appellant] will take her father to any appointments. She said that if she did not get yelled at and abused there would be no conflict. However, this is how [the appellant] acts towards her and in her view 'there is conflict with [the appellant]'. [The Spouse] last spoke with [the appellant] at Easter 2023. During that phone call she said that she was abused and [the Spouse] hung up on that phone call. [The Spouse] said that the Public Guardian would not be preferred."
At [46], the Tribunal found that the appellant and the Spouse each satisfied pars (a) and (b) of s 17(1) of the Guardianship Act. In addition, the Tribunal found that each satisfied the first limb of par (c) of s 17(1) of the Guardianship Act - being willing to exercise the functions conferred by the guardianship order: accommodation, health care, medical and dental consents and restrictive practices (chemical restraint).
However, at [44] the Tribunal rejected the respective submissions made by the appellant and the Spouse that each satisfied the second limb of par (c) of s 17(1) of the Guardianship Act - being able to exercise those functions: "We do not accept [the appellant] and [one of the appellant's sister]'s submissions that there is no conflict in the matter. At a minimum, there is definitely disagreement between [the Spouse] and [the appellant] which is interfering with the facility being able to obtain clear consent for decision making for [the Father]. [The appellant]'s evidence was also not consistent. On the one hand she said in her primary evidence that there is no conflict. In her oral reply submissions, she said 'the conflict is because of not being given information relating back to a car accident some years ago when [the Spouse] did not give information.' She then went on to indicate that [the Spouse] had not given other family members information about turning off an internal defibrillator and [the Father] signing a statement of choice for all treatment to be given which is inconsistent with the turning off the defibrillator. She then went on to say that the conflict has stayed because of a lack of information concerning their father. She concluded by saying 'we are never going to get information for my father I need more rights.' In our view this evidences the entrenched conflict between [the Spouse] and [the appellant], which, when considering if they are 'able' to carry out the role of a guardian as required by s17 of the Guardianship Act, leads to a conclusion that they are not."
At [46], the Tribunal went on to say: "An appointment of either of them would, more than likely, not preserve family relationships as required by s 4. We also have a concern that their relationship may impede their ability to maintain [the Father]'s best interests by considering his and the views of his immediate family members in making decisions."

[9]

Consideration

The appellant is correct in stating that s 15(3) of the Guardianship Act directed the Tribunal not to appoint the Public Guardian as the Father's guardian "in circumstances in which such an order can be made appointing some other person as the guardian of the person".
Whether an "order can be made appointing some other person as the guardian of the person" required the Tribunal to consider whether it was satisfied that any person proposed to act as guardian met each of the three matters listed in s 17(1) of the Guardianship Act.
The task s 17(1)(c) of the Guardianship Act required the Tribunal to undertake was to make an evaluative judgement about whether the appellant and/or Spouse were "able" to exercise the functions conferred by the guardianship order. This required the Tribunal to consider whether the appellant and/or spouse were able to exercise those functions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25]; IR v AR [2015] NSWSC 1187 at [36]; AS by her tutor SS v NSW Public Guardian [2021] NSWSC 889 at [37], [38]; ZKF v ZKG [2019] NSWCATAP 64 at [34].
The Tribunal was not satisfied that either the appellant or the Spouse were able to discharge the functions of the guardianship order in a manner which observed the principles in s 4 of the Guardianship Act (the section 4 principles). While not expressly stated, it is apparent from [44] and [46] of the Reasons (see [29], [30] above) that the particular principles the Tribunal was referring to were the principles that: "the welfare and interests of [the Father] should be given paramount consideration" (s 4(a)); "the views of [the Father] in relation to the exercise of those functions should be taken into consideration (s 4(d)); and "the importance of preserving the family relationships … [the Father] should be recognised" (s 4(g)).
Having found that neither proposed guardian was able to exercise the functions conferred by the guardianship order in a manner which observed the section 4 principles, it was not open to the Tribunal to appoint either of them as guardian. By the combined operation of ss 4, 15(3) and s 17(1)(c) of the Guardianship Act, the Tribunal had no option but to appoint the Public Guardian.
The contention that the Tribunal misapplied ss 15(3) and 17(1) must be rejected. This ground has not been made out.

[10]

Ground 2: no evidence of family conflict finding

The finding that conflict existed between family members, primarily the Spouse and the appellant, about decisions relating to the Father's personal affairs, in particular, whether he should remain at the aged care facility (the Facility) and the type of medical treatment and care he should receive, is the subject of this ground. We refer to that finding by the short-hand term "family conflict finding".
The appellant concedes that there was evidence of "disagreement" between herself and the Spouse about decisions relating to the Father's personal affairs. However, she contends that there was no evidence to support a finding of family conflict. The appellant made much the same point at the hearing before the Tribunal: Reasons at [39]. One of her sisters who participated in the hearing (the Sister) supported that submission: at [41].
To consider this ground, it is necessary to refer to the reasons given by the Tribunal (the Reasons).
At [27], the Tribunal summarised the evidence given by the director of clinical services of the Facility (the Director): "[The Director] said that there was a lot of family conflict which has been going on for three years with respect to [the Father]. The conflict and disagreement makes it very difficult for the facility to provide care and obtain consent for decision making."
At [43], again referring to the evidence given by the Director the Tribunal said: "[The Director] said that the current arrangements are not working. There is definitely conflict between [the Father]'s family members as set out above. [The Director] supported an external party being appointed to make decisions given the inability of [the appellant] and [the Spouse] to make decisions with some degree of agreement for [the Father]."
At [42], reproduced at [27] above, the Tribunal recorded the view expressed by the Spouse about whether there existed family conflict in respect of decisions concerning the Father:
At [35], the Tribunal explained its reasons for exercising the discretion to make a guardianship order for the Father. Referring to decisions being made by the Spouse about the Father's care and medical treatment the Tribunal said: "It would appear that there is some disagreement about whether those decisions are being made appropriately, or, whether the exchange of information concerning decisions about [the Father]'s medical and dental treatment and health care between [the Spouse] and other family members is occurring. We placed significant weight on the evidence of [the Director]. It would appear that the aged care facility is acting as a mediator in terms of exchanging health care information concerning [the Father]. This also extends to concerns about his accommodation. We acknowledge that the aged care facility is able to assist the family in mediating, but not always. It is noteworthy that this is not a role which aged care facilities should be primarily concerned with. The main concern for the aged care facility is ensuring [the Father]'s accommodation is meeting his needs and he has access to appropriate health care and other services."
At [44], the Tribunal said: "We do not accept [the appellant's] and [the Sister's] submissions that there is no conflict in the matter. At a minimum, there is definitely disagreement between [the Spouse] and [the appellant] which is interfering with the facility being able to obtain clear consent for decision-making for [the Father]."
The Tribunal continued in [44] to analyse the evidence and concluded: "In our view this evidences the entrenched conflict between [the Spouse] and [the appellant], which, when considering if they are 'able' to carry out the role of guardian as required by s17 of the Guardianship Act, leads to a conclusion that they are not."
At [47], the Tribunal said: "We have placed significant weight on and prefer the evidence of [the Director] with respect to the effect [the Spouse's] and [the appellant]'s relationship has on decision making for [the Father]. We find that the most appropriate appointment to further the guiding principles as set out in s 4 and when considering s 17 of the Guardianship Act, is to appoint the Public Guardian."

[11]

Consideration

It is an error of law to make a finding of fact for which there is no evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6; [1990] HCA 33; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 (2010) 241 CLR 390 at [91].
A finding of fact which is supported by at least some evidence does not reveal an error of law, even if it was made by ignoring the probative force of the evidence which supports a different finding of fact: Azzopardi v Tasman UBE Industries Pty Limited (1985) 4 NSWLR 139 at 155-156 (Glass JA). Where judgment is formed on the basis of conflicting indicators, it will be difficult, if not impossible, to establish a "no evidence" ground of review: L & B Linings Pty Limited v WorkCover Authority of NSW [2012] NSWCA 15 at [34] (Basten JA).
The effect of the impugned finding was that, because of the conflict between family members, decisions were not able to be made on behalf of the Father on an informal basis and that increasingly the Facility was acting as mediator between family members: see, for example, [35], [39]. The evidence to support that finding included that given by the Spouse and the Director. In the proceedings before the Tribunal, and in this appeal, the appellant endeavoured to draw a distinction between evidence which supported a finding of "disagreement" and that which is "conflict". In our view, that distinction is largely an exercise in semantics. The appellant's own evidence and that given by the Sister was not inconsistent with the finding that there existed conflict between family members about decisions which needed to be made about the Father's personal affairs. The point of difference is that the appellant claimed that if she were appointed as guardian, she should be able to resolve those differences, or at least, "give it a 6 month trial": at [40].
The appellant's submission that there was no evidence to support the family conflict finding is, in truth, an expression of disagreement with that finding. The contention that there was no evidence to support that finding must be rejected.
This ground has not been made out.

[12]

Ground 3

The appellant contends that there was no evidence to support the finding that she was unable to exercise the functions conferred by the guardianship order. There is significant overlap between this ground and Ground 2.
As explained above, to appoint the appellant as the Father's guardian, the Tribunal was required to be satisfied that that she was "able" to discharge the functions conferred by the guardianship order in a manner which conformed with the section 4 principles.
The Tribunal found that the conflict between the appellant and the Spouse affected their respective abilities to discharge the functions conferred by the guardianship order. At [27], the Tribunal referred to the evidence given by the Director that "the conflict makes it very difficult for the facility to provide care and obtain consent for decision making".
At [44], the Tribunal said: "…[the appellant]'s evidence was also not consistent. On the one hand she said in her primary evidence that there is no conflict. In her oral reply submissions, she said 'the conflict is because of not being given information relating back to a car accident some years ago when [the Spouse] did not give information.' She then went onto indicate that [the Spouse] had not given other family members information about turning off an internal defibrillator and [the Father] signing a statement of choice for all treatment to be given which is inconsistent with the turning of the defibrillator. She then went on to say that the conflict has stayed because of a lack of information concerning their father. She concluded by saying 'we are never going to get information for my father I need more rights.' In our view this evidences the entrenched conflict between [the Spouse] and [the appellant], which, when considering if they are able to carry out the role of guardian as required by S 17 of the Guardianship Act, leads to a conclusion that they are not." (Emphasis added)
We note in passing that the Macquarie Dictionary online defines "entrenched" to mean "to establish so strongly or securely as to make any change very difficult". The term "entrenched" to describe the long history of conflict between the appellant and the Spouse is apt.
As explained above, s 17(1)(c) of the Guardianship Act required the Tribunal to make an evaluative judgment, or to form an opinion, about whether the appellant was "able" to exercise the functions conferred by the guardianship order in a manner which observed the section 4 principles. It is apparent that in undertaking that task, the Tribunal considered significant the evidence of the conflict within the family about matters relating to the Father, the history of the difficulty with making and implementing decisions in relation to the Father since he moved into aged care, and the likelihood that this would continue if the appellant (or the Spouse) were to be appointed as guardian. The contention that there was no evidence to support the conclusion reached or the finding made by the Tribunal that it was not satisfied that the appellant was "able" to exercise the functions conferred by the guardianship order is rejected. As was the case with the family conflict finding, in truth, this ground is an expression of disagreement with that finding.
This ground has not been made out.

[15]

Was the finding that the appellant is unable to exercise the functions of the guardianship order against the weight of the evidence?

In oral submissions, the appellant reformulated this ground and contended that there was insufficient evidence that the conflict within the family was affecting decisions made in relation to the Father.
Contrary to the submission made by the appellant, there was evidence before the Tribunal that the conflict between the parties was affecting decisions made in relation to the Father. Indeed, the Tribunal identified the difficulty reported by the Facility "in continuing to provide the best care to [the Father] given the disagreement between [the Spouse] and [the appellant]" as key to its decision to exercise the discretion to make a guardianship order. At [44], the Tribunal rejected the "no conflict" submission made by the appellant and the Sister and said "at a minimum, there is definitely disagreement between [the Spouse] and [the appellant] which is interfering with the facility being able to obtain clear consent for decision making for [the Father]".
Finally, we reject the argument that the conclusion reached by the Tribunal that it was not satisfied that the appellant was "able" to exercise the functions conferred by the guardianship order in a manner which observed the section 4 principles was against the weight of evidence. In making the evaluative judgment required to be undertaken by s 17(1)(c) of the Guardianship Act, the Tribunal was entitled as it did to have regard to the history of conflict between the appellant and the Spouse and to ask whether, if the appellant were to be appointed as guardian, that conflict would be likely to continue and, if so, whether it might impede her ability to exercise the functions in a manner which observed the section 4 principles. The only evidence before the Tribunal to support a finding that the family conflict would not impede the appellant's ability to exercise the function conferred by the guardianship order was the appellant's self-report that, if appointed, she would be able to navigate the difficulties in her relationship with the Spouse and to take into account any concerns the Spouse might have about decisions the appellant proposed to make in relation to the Father: see [39], [40]. It could not reasonably be suggested that the totality of the evidence preponderated so strongly against the conclusion reached by the Tribunal about the appellant's ability to exercise the functions of the guardianship order that it was not a conclusion a reasonable tribunal member could have reached.

At a glance

Court

Decision date

Before

Source

Judgment (19 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (27)

Cited By (1)