YKX v NSW Ageing and Disability Commissioner

Background facts

1. The following facts are taken principally from the reasons given by the Tribunal for the decision under appeal (the Reasons).
2. In 2008, one of NCAT's predecessors, the NSW Guardianship Tribunal, made a guardianship order in respect of the Daughter and appointed as her guardians the Public Guardian and her parents for a term of 12 months. The Tribunal gave the Public Guardian the functions of health care, services and authority to consent to medical and dental treatment on behalf of the Daughter and gave the parents the function of accommodation.
3. In December 2009, after conducting an end-of-term review of that order as required by s 25(2)(b) of the Guardianship Act 1987 (NSW), the Tribunal made a further order for a term of 12 months, removed the Public Guardian and appointed the parents as guardians for the Daughter. In December 2010, after conducting an end-of-term review of the 2009 guardianship order, the Tribunal decided to allow that order to lapse.
4. In August 2021, the ADC received a "report of concern" in relation to the Daughter. That report alleged:

• "[The Daughter] has a serious untreated mental illness and has not had access to medical treatment or mental health care in a decade.
• [The Daughter's] father is her primary carer and was described as 'volatile'. Concerns were raised that [the Daughter's Father] was experiencing a cognitive decline and/or untreated mental illness and did not have assistance for this.
• [The Daughter] is fed by her father placing her food on a plate on the ground.
• There has been turnover of allied health staff with two occupational therapists and a behaviour support therapist having been involved and then fired, with no allied health support being provided to [the Daughter].
• [The Daughter] is extremely isolated, residing in the upper portion of the house, with her father as her primary carer. [The Daughter] may occasionally go for a walk in the yard but has not ventured from the property for years.
• [The Daughter] would benefit from, but has not had access to, intensive behaviour support to overcome challenges with her access to the community.
• While some assessment reports have been completed by allied health professionals, [the Daughter's] mother will not allow these reports to be provided to the NDIA to enable them to understand her support needs.

1. In September 2022, following unsuccessful attempts to obtain information from the Mother about the allegations listed above, the ADC commenced an investigation.
2. On 7 September 2023, after issuing a "notice of requirement" under the Ageing and Disability Commissioner Act 2019 (NSW), ADC officers visited the family home and met with the Mother. The officers were unable to meet with the Daughter who apparently was asleep.
3. In a letter addressed to the Mother dated 26 October 2023, the ADC identified several matters requiring further investigation including:

• that the Daughter had not consulted a registered medical practitioner for over 13 years
• that the Mother had failed to implement the recommendation made by a psychologist that the Daughter receive allied health services: occupational therapy, speech pathology, exercise physiology and behavioural support
• that the level of support services being provided to the Daughter is inadequate, especially given that the Father, who was previously providing most of her daily supports, had recently been hospitalised
• that the Daughter "is isolated and does not have access to the community … and has not had any meaningful community access or left the property for purposeful engagements in approximately 10 years".

1. In a letter to NCAT dated 12 March 2024, ADC manager, Ms Cecilia Cox, said that the Mother had failed to respond to the request for information detailed in the ADC's letter dated 26 October 2023. In addition, Ms Cox said in a telephone conversation on 28 November 2023, the Mother had refused to provide her with any information about the Daughter's health care.
2. In submissions dated 19 March 2024, the Mother responded to the allegations made by the ADC: "A disadvantage of Medicare is that the healthcare you may require may not be covered. [The Daughter] is an individual with her own unique set of needs. She has social interaction daily. She has a peer group. She goes beyond the boundary of the property. My appraisal has been that she does not like the idea of special needs group activities and does not want to be treated as 'special'. It is outrageous that the medical system that is responsible for the disaster that we have nurtured her through, could now want to take over with the [pretence] of mitigating it. We are fearful that she will deteriorate as a result of this Application. Given my experiences and what I saw happen to [the Daughter] there is no more loving person than me and her father. No carer, no service will provide for her like I do and will. This level of provision will not be possible when [the Daughter] is made a ward of the State nor foreseeably under the direction of [the Brother]. It is well known that any setting other than her current home will not be able to accommodate [the Daughter's] needs in any size, shape or form. At present [the Daughter] is provided for as an individual and her unique set of needs are met biomedically, emotionally, physically with an objective to improve her social participation and adaptation within her community."
3. In a subsequent letter to the Tribunal dated 25 March 2024, the Mother provided further information in response to the concerns raised by the ADC.
4. Following a hearing on 26 March 2024, the Tribunal made a guardianship order in respect of the Daughter and appointed the Public Guardian and the Brother as the Daughter's guardians for 12 months. The Tribunal gave the Public Guardian authority to make decisions about accommodation, authorise others to take, keep and return the Daughter to a place approved by the Public Guardian, and authority to consent to medical and treatment on behalf of the Daughter, and the Brother authority to make decisions about services and heath care and restrictive practices.

Grounds of appeal

1. As a party to the proceedings before the Tribunal, the Mother has a right to appeal 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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2)(b).
2. To bring an appeal on a question of law, the Mother must 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].
3. The question of law identified by the Mother is whether the Tribunal failed to afford the Mother procedural fairness: 1. by giving her inadequate notice of the hearing on 26 March 2024, and/or 2. by proceeding to conduct that hearing in her absence and failing to offer her an adjournment.
4. In addition, the Mother seeks leave to appeal on the ground that the purported finding made by the Tribunal that she "was unable to care for [the Daughter]", was against the weight of evidence.

Submissions received after the hearing

1. The Mother participated in the hearing of the appeal by telephone from the family home. The Daughter did not participate in that hearing.
2. About 90 minutes into the hearing of the appeal, NSW Ambulance Services, accompanied by NSW Police, arrived at the family home to take the Daughter to hospital. Apparently, in exercising its authority to consent to a medical treatment on behalf of the Daughter, the Public Guardian had arranged for the Daughter to be taken to hospital for the purpose of conducting a health assessment.
3. We adjourned the hearing to enable the solicitor for the Mother in the appeal, Dr Hal Ginges, to obtain instructions from the Mother about whether to continue the hearing.
4. With the consent of the Mother and the other parties participating in the hearing of the appeal, we decided not to resume the hearing but to invite the parties to make written submissions as permitted by s 50 of the NCAT Act about the remaining issue to be determined in the hearing of the appeal, that is, whether leave to appeal should be granted because the purported finding made by the Tribunal that the appellant "was unable to care for [the Daughter]" was against the weight of evidence. Reflecting that agreement, we made the following directions: 1. The parties agree that the remaining issue to be determined in the appeal, whether the purported finding made by the Tribunal that the appellant "was unable to care for [the Daughter]" was against the weight of evidence (the remaining issue) can be adequately dealt with on the papers as permitted by s 50 of the Civil and Administrative Tribunal Act 2013 (NSW). 2. By 5 August 2024, the appellant must give to NCAT and the other parties submissions about the remaining issue. 3. By 16 August 2024, the respondents must give to NCAT and the other parties submissions about the remaining issue. 4. By 22 August 2024, the appellant must give to NCAT and the other parties any submissions in reply about the remaining issue. 5. By 22 August 2024, any party who is no longer of the view that the remaining issue can be adequately dealt with on the papers as permitted by s 50 of the Civil and Administrative Tribunal Act, must notify the Tribunal and each other in writing.
5. In submissions filed on 7 August 2024 and 22 August 2024, the Mother canvassed several issues that had no apparent relevance to the remaining issue. Among other things, those submissions challenged several observations and findings made by the Tribunal and expanded on the procedural fairness argument that had been advanced by the Mother in written and oral submissions.
6. We did not consider the submissions that addressed matters beyond the scope of the remaining issue. The Mother was legally represented and did not request leave to do so. The authorities have consistently identified the harm in filing submissions without, or outside, leave: NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48; at 192; Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226; at 513, 514; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at 330; [2003] HCA 28.
7. For the same reasons, we disregarded the medical report dated 13 August 2024 filed by the Brother after the hearing. In that report, a psychiatrist said that in their opinion the Daughter had, and requires treatment for, schizophrenia.

Did the Tribunal fail to afford the Mother procedural fairness?

1. Dr Ginges submitted that the period of notice of the hearing given to the Mother was inadequate in circumstances where she had significant caring responsibilities. Dr Ginges said that on the day of the hearing the Mother was caring for her nine-year-old grandson together with the Daughter. In addition, since August 2023, the Mother had been regularly visiting her husband in hospital.
2. Further, Dr Ginges contended that a short period of notice was unwarranted in circumstances where there was no evidence that the Daughter was at risk of harm. In support, Dr Ginges pointed to the three-year delay between the ADC receiving the report of concern which triggered its investigation into the Daughter and the ADC applying to NCAT for a guardianship order.
3. Dr Ginges asserted that the Mother was unable to attend the hearing and, therefore, as a matter of procedural fairness, the Tribunal was obliged to offer her an adjournment. Dr Ginges said that the reason the Mother did not request an adjournment was because she "simply did not have the wherewithal" to do so. In addition, Dr Ginges pointed out that he was on leave when the Mother received notice of the hearing.
4. During the hearing of the appeal, the Mother said that, when telephoned by the Tribunal at the commencement of the hearing, she told the Tribunal that she was unable to participate in the hearing because she was showering the Daughter.
5. The ADC disagreed that the Tribunal failed to afford the Mother procedural fairness.
6. The ADC contended that it was clear from the Mother's written submissions that she had elected to participate in the proceedings to the Application in writing. The ADC asserted that the Mother's written submissions dated 20 March 2024 and her letter to the Tribunal dated 25 March 2024 demonstrated that the Mother was articulate and able to express herself well in writing.
7. In response to the claim that the Mother was unable to obtain legal representation, the ADC pointed out that the Mother was aware that parties in the Guardianship Division of NCAT are generally self-represented. The Mother had represented herself in guardianship hearings in 2008, 2009 and 2010 in respect of the Daughter, and in early 2024, in respect of her husband.
8. The ADC disagreed with the submissions that there was no urgency surrounding the Application. It contended that this was implicit in the concerns raised in its letter to the Mother dated 23 October 2023 and its subsequent telephone conversation with the Mother, about the Daughter's health and well-being. Those concerns had been confirmed, in part, by interviews with the Daughter's support workers and Medicare records which disclosed that the Daughter had not received any medical treatment for over a decade. By the time of the hearing the Mother had failed to respond to the ADC's repeated requests for information.
9. The Brother supported the ADC's submission. He said that the Application raised serious concerns about the Daughter's health and well-being. Despite being given the opportunity to answer those concerns, the Mother had failed to do so. The Daughter was a vulnerable person with a long history of mental illness. The evidence indicated that the Daughter was not receiving proper care and support and "something needed to be done". He argued that those concerns were heightened given his father's experience of having fallen and broken his leg and an ambulance not being called for three days. He claimed that it was a support worker, and not the Mother, who had called the ambulance.
10. The Mother disputed those claims. She claimed that she, not a support worker, had called the ambulance to take her husband to hospital. In addition, she claimed that hospital staff told her that it was not possible to determine when her husband had broken his leg and that it may have been broken for some time.

Statutory framework and principles

1. The Tribunal was required to observe the rules of natural justice or, as they are now more commonly referred to, the rules of procedural fairness: NCAT Act, s 38(2). Reflected in s 38(5)(c) of the NCAT Act, those rules required the Tribunal to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
2. In its practice and procedure, the Tribunal is required to give effect to the guiding principle of the NCAT Act and to facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, ss 36(1)-(2). In addition, in exercising its functions under the Guardianship Act, the Tribunal was required to observe the general principles listed in s 4 of that Act: Guardianship Act, s 4; NCAT Act, Sch 6, cl 5(1). Those principles included that the welfare and interests of the Daughter should be given paramount consideration, and that she be protected from neglect and abuse: Guardianship Act, ss 4(a), 4(g).
3. In Kioa v West (1985) 159 CLR 550; [1985] HCA 81 at 612, Brennan J described the hearing rule, one element of the rule of procedural fairness, as being "chameleon-like". At 585, Mason J said that that rule "conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case".
4. The Guardianship Act requires the Tribunal, before conducting a hearing into an application for a guardianship order, to serve on each party to the proceedings "a notice specifying the date on which, and the time and place at which, the Tribunal will conduct the hearing": Guardianship Act, s 10(1A). Neither the Guardianship Act nor the NCAT Act stipulate a minimum period of notice that the parties must be given of a hearing. While not relevant to this appeal, we note that the Tribunal is not required to serve notice of a hearing if it considers compliance with that requirement would be likely to cause a real, material and imminent risk of harm to the person who is the subject of the application to which the hearing relates: NCAT Act, Sch 6, cl 6A.

Insufficient notice of hearing

1. Dated 18 March 2024, the notice issued by the Tribunal to the Mother stated that a hearing to determine the Application would be held on 26 March 2024 in regional NSW, and if the parties were unable to attend in person they could attend by telephone or video. On the available material it is not possible to say exactly when the Mother received that notice. However, the opening line of her submission dated 19 March 2024, "I recently obtained a document pertaining to an End of Term Review … [which] relates Guardianship (sic) of our daughter by [my husband] and myself", suggests that the Mother had received a copy of that notice by 19 March 2024. So, too, does the following note of a conversation with the Mother contained in a hearing report dated 19 March 2024, prepared by an NCAT staff member, "[The Mother] is opposed to the applications. She said [the Daughter] has had an active NDIS plan for approximately 5 years and has 4 support workers. Support workers attend 7 days per week. [The Daughter] also has a psychologist who she speaks with by telephone fortnightly. [The Mother] said [the Daughter] is not isolated and not alone; she has the support workers and goes for walks. [The Mother] will be making a written submission prior to the hearing." (emphasis added)
2. We find that the Mother probably received notice of the hearing on 19 March 2024. The question to be decided is whether, in the circumstances, six days constitutes a reasonable period of notice.
3. In considering that question we note, as suggested in Judicial Review of Administrative Action and Government Liability M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) at [9.100] that "reasonable prior notice may constitute the minimum content of natural justice" and that the "fundamental" or "cardinal" value of notice has been confirmed by many judicial statements.
4. The Mother was a party to the proceedings and as such had a right to be notified of, and to participate in, the hearing. In addition, the Mother was entitled to express, and the Tribunal was obliged to take into account, her views about whether the discretion to make or not to make a guardianship order in respect of the Daughter should be exercised: Guardianship Act, s 14(2)(a)(iii).
5. While undoubtedly a relatively short period of notice, for the following reasons we find six days of the hearing to determine the Application to be a reasonable period of notice in the circumstances of this matter.
6. First, it could not be said that the Mother was taken by surprise by the concerns raised by the ADC about the Daughter. Those concerns were particularised in the ADC's letter to the Mother dated 26 October 2023 which formed the basis of its application to NCAT.
7. Second, it is likely that the Mother had received a copy of the Application a week before receiving notice of the hearing. In the Application, lodged on 12 March 2024, Ms Cox advised she had sent a copy of the Application to all parties.
8. Third, the Mother's written submissions dated 19 March 2024, and her letter to the Tribunal dated 25 March 2024, indicate that in the six days after being notified of the hearing the Mother was able to prepare a comprehensive response to the Application and to respond to the concerns raised by the ADC.
9. Fourth, at no time did the Mother suggest to the Tribunal that she required additional time to prepare for the hearing.
10. Fifth, it is not apparent how Dr Ginges being on leave when the Mother received notice of the hearing, is relevant to the assessment of whether the period of notice was reasonable. The Mother did not seek leave to be legally represented in the hearing. While it was suggested in submissions, there is no evidence that the Mother attempted to obtain advice from Dr Ginges after receiving notice of the hearing.
11. Finally, the Application and material in support raised serious concerns about the Daughter's health and well-being. If accepted, that material was capable of supporting the claims made by the ADC that the Daughter had a history of mental illness, had not consulted a registered medical practitioner for over a decade, had limited access to allied health care, was receiving inadequate care and support and was socially isolated. Those claims suggested that there was some urgency in the application. Whether the Tribunal ultimately found those claims to be proven, and, if so, whether individually or together they warranted the exercise of the discretion to make a guardianship order, is not to the point.
12. Notably, at the time of the hearing there was no independent evidence to support the Mother's claim that the ADC's concerns about the Daughter's health and well-being were baseless. By the time of the hearing, the ADC had not met with or spoken with the Daughter. Despite having attempted to do so on two occasions, the separate representative, solicitor, Mr Mathers, had not been able to meet with the Daughter before the hearing. In the hearing report dated 19 March 2024, an NCAT staff member recorded that when they sought to speak to the Daughter to obtain her views about the Application, they were told by the Mother that she was unavailable.
13. The fact that, as the Tribunal found, the ADC may have investigated the allegations raised in the initiating 2021 report of concern "less expeditiously that may have been desirable" (Reasons at [26]) is not determinative of whether the Daughter's circumstances warranted a relatively short period of notice. That was a question for the Tribunal to decide having regard to the protective nature of its jurisdiction, together with the statutory instructions to give paramount consideration to the Daughter's welfare and interests, and to give effect to the guiding principle of a just, quick and cheap resolution of the real issues in the proceedings.
14. We find in the circumstances six days' notice of the hearing was reasonable.

Conducting the hearing in the absence of the Mother and failing to offer an adjournment

1. At [10]-[13] of the Reasons, the Tribunal explained why it decided to proceed to conduct the hearing in the absence of the Mother: 10 [The Daughter] was not present at the hearing. A Tribunal Officer attempted to contact [the Daughter] on 19 March 2024, at which time she spoke to [the Mother]. [The Mother] advised that [the Daughter] was not available to speak with. She claimed that [the Daughter] was very upset about the application which had been made to the Tribunal. 11 Mr Mathers advised that he attempted to speak with [the Daughter]. He had attended the [family] home but was advised by [the Mother] that [the Daughter] had been taken unwell so that Mr Mathers was unable to see her. Mr Mathers organised to meet with [the Daughter] the following Sunday, however, on Sunday morning he received a text message from [the Mother] saying that [the Daughter] had declined the interview. Mr Mathers reported getting the sense that [the Mother] had no intention at any time of allowing him to enter the home or to meet with [the Daughter]. He reported catching a glimpse of [the Daughter] through an upstairs window as he left the home. 12 [The Mother] had written to the Tribunal on 25 March 2024. In that letter she advised that she did not intend to be at the hearing due to a prior commitment. At the commencement of this hearing we telephoned [the Mother] and invited her to participate, however, she declined. [the Mother] had provided written submissions, both in her letter of 25 March 2024 and an earlier letter dated 19 March 2024 so that her views were known to us. 13 Given the serious concerns held by the NSW Ageing and Disability Commission which led to this application being made, we determined that it is appropriate that the hearing proceed in the absence of both [the Daughter] and [the Mother].
2. There will be circumstances where the Tribunal's failure to offer a party an adjournment may amount to a failure to afford procedural fairness. This is not such a case for these reasons.
3. First, the day before the hearing the Mother wrote to the Tribunal and said that she would not "be in attendance at the hearing on 26 March 2024, due to prior commitments". There is nothing in that letter, or the Mother's submission dated 19 March 2024, to suggest that if the hearing were held at some future date that she would be likely to attend. Nor did she make that claim when contacted by the Tribunal at the commencement of the hearing.
4. Second, as argued by the ADC, it was reasonable for the Tribunal to infer from the detailed submissions filed by the Mother that she had elected to participate in the hearing by way of that material.
5. Third, this was not a case where, because of some procedural irregularity or other factor, it could reasonably be suggested that the Mother misapprehended the nature of the Application or the purpose of the hearing. The Mother had been involved in four sets of guardianship proceedings, three in relation to the Daughter, one in respect of her husband. The material filed by the Mother in response to the Application demonstrated that she understood that the purpose of the hearing was to determine whether a guardianship order should be made in respect of the Daughter. In that material the Mother responded to the concerns raised by the ADC.
6. Fourth, the evidence does not support a finding, as the Mother appears to claim in this appeal, that because of carer's responsibility she was unable to participate in the hearing. The Mother was given the option to participate in the hearing by telephone or video. There is no evidence to indicate that the care needs of the grandson and/or the Daughter were of such a nature that the Mother was prevented from participating in the hearing remotely from the family home. Notably, in submissions dated 19 March 2024, the Mother said that in her opinion the Daughter was largely functionally independent and did not require "24/7 supervision". If the grandson required direct care and supervision on the day of the hearing because of a disability, or some other reason, this was not disclosed to the Tribunal or the Appeal Panel.
7. Fifth, in the hearing of the appeal, the Mother claimed for the first time that when contacted by the Tribunal by telephone at the start of the hearing she said that she was showering the Daughter. The extract of the transcript of the hearing attached to the submissions filed by the Mother in the appeal contains no reference to that claimed statement. In any event, it is unclear why it was necessary for the Mother to shower the Daughter during the hearing in circumstances where support workers were engaged for the Daughter, and, in any case, when, in submissions dated 19 March 2023, the Mother claimed the Daughter was able to shower herself.
8. Sixth, as to the submission that the Tribunal was obliged to offer the Mother an adjournment because the Mother did not have the wherewithal do so, the premise on which this submission is based is not made out. The available evidence does not support the inference being drawn that the Mother lacked the ability to request an adjournment.
9. By s 38(5)(c) of the NCAT Act, the Tribunal was obliged to take such measures as are reasonably practicable to ensure that the Mother had "a reasonable opportunity to be heard or otherwise have [her] submissions considered in the proceedings". That obligation did not require the Tribunal to ensure that the Mother avail herself of that opportunity. Nor did that obligation require the Tribunal to offer the Mother an adjournment. We reject the contention that the Tribunal failed to afford the Mother procedural fairness by hearing the Application in her absence and by failing to offer her an adjournment.

Conclusion

1. The contention that the Tribunal failed to afford the Mother procedural fairness must be rejected. This ground of appeal is not established.

Should leave to appeal be granted?

1. The Mother contends that leave to appeal should be granted because the evidence does not support a finding that she was unable to care for the Daughter. She asserts that that finding is at odds with the Tribunal's acknowledgement that to remove the Daughter from the family home "could be very traumatising for her": Reasons at [56].
2. Referring to the finding made by the Tribunal at [54] that the Mother "appears to lack objectivity and capacity to make sound decisions for [the Daughter]", the Mother argues that the Tribunal appears to accept the ADC's opinion that she lacks sound judgment because she is opposed to conventional medical treatment for the Daughter. The Mother contends that this reasoning is based on the flawed assumption that "sound decisions" are necessarily consistent with recommendations made by conventional medical practitioners. The Mother contends that the Daughter continues to suffer from the "catastrophic effects" of anti-psychotic medication she was given as a teenager. The Mother asserts that "it was the medical system which led to the disabilities from which [the Daughter] suffers".
3. The ADC points out that the Tribunal did not find that the Mother was unable to care for the Daughter. Indeed, the Reasons indicate that the Tribunal considered that the Mother would remain as the Daughter's informal carer. The ADC pointed out that the Tribunal explained that it had decided to "split the roles of guardian" and to give the Public Guardian and not the Brother "the potentially contentious functions" of accommodation, authorise and authority to consent to medical and treatment for the Daughter was "in the hope of encouraging a collaborative approach with [the Mother] into the future care of [the Daughter]": at [66].
4. The ADC contends that the absence of any finding that the Mother was unable to care for the Daughter explains why, in submissions made in response to the directions made by the Appeal Panel on 25 July 2024 (see [23] above), the Mother failed to directly address the remaining issue.

Principles involving the grant of leave to appeal

1. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of NCAT explained at [82]-[84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for doing so. Ordinarily, to obtain leave the appellant must identify some point of principle, question of public importance, an unorthodox approach to fact finding, a finding that was unreasonably arrived at and clearly mistaken, or a clear injustice.
2. Where, as here, the decision under appeal was made by the Guardianship Division in the exercise of the discretion to grant leave to appeal, the protective character of the jurisdiction exercised by that Division must be considered: C v W [2015] NSWSC 1774 at [44]-[46]; BPY v BZQ [2015] NSWCATAP 33 at [33]-[34]; ZII v ZIJ [2018] NSWCATAP 255 at [60].

Conclusion

1. As the ADC points out, the Tribunal did not find that the Mother was unable to care for the Daughter. Rather, the key findings made by the Tribunal on which its decision to make guardianship order was based were that the Mother "appears to lack objectivity and capacity to make sound decisions for [the Daughter]" and that "[the Daughter's] welfare is [not] advanced by [the Mother's] informal decision making for [the Daughter] at this time". In fairness to the Mother, we considered the question of whether there was evidence to support those findings.
2. To put those findings in context, we set out in full the extract in the Reasons in which they appear: 54 "We have given careful consideration to the submissions of [the Mother] and the letter from Ms Tumbleson (sic) we are left with little doubt that [the Mother] loves her daughter dearly. We are however concerned that [the Mother] appears to lack objectivity and capacity to make sound decisions for [the Daughter]. We are conscious that [the Mother] has experienced very significant trauma arising from having seen her apparently achieving daughter develop a significant disability from the age of about 15 years. It is apparent from her submissions of 19 March 2024 that [the Mother] attributes [the Daughter's] current condition "to the medical system". More broadly, [the Mother] appears unable to recognise when someone is not able to necessarily provide informed opinion as to their own needs or to obtain for someone the assistance they require, as well illustrated by her views in respect of [the Daughter's Father]. It follows that we do not believe that [the Daughter's] welfare is advanced by [the Mother's] informal decision making for [the Daughter] at this time. 55 The evidence before us speaks of [the Daughter] requiring a very high level of support. It appears that the support she is currently provided may be less than adequate, resulting in the maintenance of, or possible exacerbation of [the Daughter's] disability. She has also not been subject to any medical review for a number of years (despite recommendations from Ms Matheson in her report in 2021 and apparently from Ms Tombleson for that to occur), so raising the question as to whether [the Daughter] may have a medical condition for which treatment might be available."
3. The Tribunal had before it the following material: 1. reports prepared by behaviour support specialist, Ms Karen Amour, dated 17 June 2019 and 12 October 2020, which state that the Daughter's quality of life is "currently poor", that she has not had access to supports outside of her family for over a decade, that she and her father are "experiencing high levels of isolation", that her "quality of life will be substantially improved by the provision of formal supports, to accompany her family's substantial efforts": Reasons at [37], [38] 2. reports of carers interviewed by the Commission that the Daughter "rarely leaves her unit to go outside, even to access the garden surrounding her home": Reasons at [41] 3. the Daughter's Medicare records which reveal that she had not consulted a registered health practitioner since August 2010: Reasons at [28] 4. the evidence that the recommendation made by Ms Amour and others that the Daughter receive specialist care and support had not been implemented: Reasons at [38],[43],[47].
4. The only independent evidence supportive of the Mother's claims that there were no issues of concern surrounding the Daughter was a report dated 23 March 2024 prepared by psychologist, Ms Janette Tombleson. Ms Tombleson last saw the Daughter 13 years ago. More recently she had been engaged to provide consultation to the support workers who "were experiencing difficulties in caring for that Daughter". Notably in that report, Ms Tombleson said that she found the report dated 17 June 2019 prepared by behaviour support practitioner, Ms Amour, to be "constructive". In that report, Ms Amour found the Daughter's quality of life to be "poor" and that her "quality of life will be substantially improved by the provision of formal supports, to accompany her family's substantial efforts". In her subsequent report dated 12 October 2020, Ms Amour observed that the recommendations she made in her previous report that the Daughter have access to expert therapists, including behaviour support/psychology, had not been implemented.
5. Each of the key findings were open to the Tribunal on the available evidence. Neither were against the weight of evidence.
6. As the basis for the application for leave is not established, that is, that the key findings are against the weight of evidence, it is not necessary to consider whether the discretion to grant leave to appeal should be exercised. In any event, as explained by an Appeal Panel in Collins v Urban at [82]-[84], generally to obtain leave the appellant must identify some point of principle or question of public importance, or an unorthodox approach to the fact finding, a finding that was unreasonably arrived at, or a clear injustice. The Mother has failed to do so.

Orders 1. Leave to appeal is refused. 2. The appeal is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2024