ZCP v ZCQ

NCAT Appeal Panel|2016-08-12

REASONS FOR DECISION

This appeal relates to guardianship and financial management orders made by the Guardianship Division of the Tribunal under the Guardianship Act 1987 (the Act).
(As is usual in proceedings of this kind, the names of the individual parties are anonymised. For convenience, we will not use the full three letter pseudonyms. We will simply use the end letters as they are distinctive.)
R is the son of P and Q. P and Q separated some time ago. R is a person with a disability, diagnosed as severe intellectual disability and autism. He has been assessed as 'non-verbal and requires 24 hours monitoring of his at times impulsive behaviours'. He turned 21 a few days after the appeal hearing.
From the time of his birth until late 2014 his primary carer was his mother, Q. In November 2014 P moved to a group house, Bladwell House, in Goulburn, following a request for assistance from Q. In December 2014, P visited him, and took him home to his place for Christmas. P did not return him to Bladwell House. Since then R has lived primarily at P's home and P has been his primary carer. Q remains actively involved. P spends 5 days in every fortnight with Q at her home.
In January 2015, following his removal from Bladwell House, a residential care worker applied to the Tribunal for the making of guardianship and financial management orders in relation to R. On 4 February 2015 the Tribunal made a guardianship order for 12 months appointing the Public Guardian as a limited guardian with the functions of making decisions in relation to access, accommodation and services. There was no financial management order. P continued to manage R's income.

Right of Appeal

A party's right to appeal against decisions and orders of the present kind is restricted to 'questions of law'. It may be extended to 'other grounds' with the leave of the Appeal Panel. See Civil and Administrative Tribunal Act 2013, s 80(2)(b).

Grounds of Appeal

The amended notice of appeal was prepared by P's solicitor, Ms Park. It is confined to questions of law. There is no application for leave to extend the appeal to other grounds.
The two questions of law are: (a) whether the Tribunal failed to take into account considerations it was bound to take into account; and (b) whether the Tribunal observed its duty of procedural fairness.
The procedural fairness objection concerned the way in which the Tribunal dealt with material relating to P's suitability as a guardian and the role of S, P's partner, in providing care and support for R.
P submitted that as he had complied in all respects with the guardianship order made 4 February 2015. In particular the Public Guardian had not expressed any concern about R's accommodation at his home. He considered that there was no need for the Public Guardian to remain involved in R's care. In relation to the management of R's financial affairs, he noted that Q had sought the order at the review hearing. He contended that he had managed R's affairs competently, and there was no need for such an order.

Applicable Law

The making of guardianship and financial management orders is governed by the general principles set out in s 4 of the Act, i.e. 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) (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.
The making of guardianship orders is subject to detailed regulation by Part 3 of the Act. Of most relevance to the issues raised by the appeal are s 14 and s 15(3), i.e. 14 Tribun al 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. 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.
The making of financial management orders is subject to detailed regulation by Part 3A of the Act. Of most relevance to the issues raised by the appeal is s 25G which provides: 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.

Consideration

A court or tribunal, when making a decision founded on a discretion, must only give weight to 'relevant' considerations and any considerations that is required to consider ('mandatory' considerations). It must not give weight to irrelevant considerations and must not disregard mandatory considerations. These are the basic requirements of the relevant law. The Tribunal's weighing of the permitted considerations, in the sense explained, can only give rise to an error of law in extreme circumstances, such as an absence of logically probative evidence, a failure to make a rational decision ('irrationality') or the making a decision that is manifestly unreasonable. See further, BTK v The Public Guardian [2015] NSWCATAP 89 at [41].

(1) Financial Management Order

The major difference between the original order and the new orders is the addition of a financial management order. This was P's main area of dispute with the decision.
In his appeal submissions, written and oral, P referred to the inadequacy of the present amount of the disability support pension payable to R ($421.50, fortnight) and his carer's allowance ($86, fortnight). (Now that R is 21, there will have been an increase in the disability support pension.) P gave an account of the way those sums are expended by him for the needs of R. Q, on the other hand, referred to the amount of time R spends with her, and P's failure to provide her with part of R's pension to meet the costs she incurs. At our hearing, a number of strong remarks were made by P and by Q about each other in regard to a range of issues, including the management of money. They included claims by Q against P that he was in substantial arrears in respect of his child support obligations. P acknowledged at hearing that he was in arrears but not to the extent claimed by Q. It was plain that the deep conflict between them has not abated - conflict referred to in the Tribunal decisions of 2015 and 2016, and in Ms Morgan's report of February 2016.
The Tribunal, having noted there was no proposal for a private financial manager, concluded that it was in R's best interests for the statutory manager to be appointed, the NSW Trustee and Guardian.
A key objective for the Tribunal in making its financial management order was to provide R with the ability to have an involvement in the use of the assistance payments received by him. The Tribunal recognised that a significant proportion of those payments would need to be expended, but saw value in him having a say in those decisions, to the extent that it could be obtained, and providing him with the opportunity to spend some money as he saw fit. The Tribunal was seeking, in that way, to give expression to the key principles found in s 4, such as: (b) (freedom of decision should be restricted as little as possible), (f) (encouraging self-reliance) and, ultimately, (a) (the protected person's welfare and interests are the paramount consideration).
The Tribunal had before it the earlier Tribunal decision, together with a detailed history in relation to R's circumstances, and numerous reports from health practitioners and social workers connected with R's care. There was a body of material that supported the desirability of introducing a point of independent oversight into R's financial management.
At our hearing, P and Q each referred to the difficulty of providing adequate financial support from the assistance payments for R's needs. Equally P did not dispute Q's claim that nothing was being provided to her to cover the costs she incurred when R stayed with her. It is plain, we think, that in the absence of co-operation between P and Q over allocating a proportion of those payments to Q, the Tribunal had no practical choice but to appoint an independent manager. The evidence is that they are unable to co-operate to make private decisions about these matters.
In our view, the Tribunal engaged in a deliberative process of the kind required by the law. It must approach the matter before it by reference to the best interests of the protected person. It is clearly in R's interests that areas of conflict between his parents are minimised. It is plain that one of those conflicts surrounds the issue of the financial contribution that should be made on his behalf to each of them for the care and support they provide.
While P was dissatisfied with that outcome, he did not identify any failure by the Tribunal to have regard to the considerations set out in s 4 and s 25G, to the extent that they arose in the circumstances of the case.

(2) Guardianship Order

P criticises the continuation of the guardianship order on the basis that he was proactive in having R removed from the group home, had been doing a good job since R moved to his place, there have been no matters of concern for the Public Guardian, and therefore there is no longer any need for the Public Guardian to remain involved.
He said that he made all decisions in consultation with Q. He described himself as 'his son's guardian in all respects'. On the other hand Q said there was no consultation, and this accords with the reports of the Public Guardian, the Tribunal's reasons and the mother's documentary evidence before the Tribunal below (emails between P and service providers that Q is not to be kept informed or attend planning meetings). We have referred previously to the deep conflict that we witnessed at our hearing.
In this instance, the Tribunal accepted the report of the Senior Guardian, Ms Morgan, as to the general satisfactoriness of the present care arrangements for R. She did not dispute P's account of why he had considered the placement at the group home to be so unsatisfactory, and the value to R of leaving there and coming to his place to live. She advised the Tribunal that there were no present issues in relation to accommodation and services, but that there was a need for active management of access issues. At the appeal hearing the accuracy of that observation was clear. P and Q made a number of criticisms of each other over the carrying out of access arrangements, included over events that had occurred just a few days before the hearing.
The question of whether an order is to be continued cannot be resolved solely by reference to the satisfactoriness of the care that is being provided. The decision whether or not to continue the order must have regard to the all of the principles set out in s 4 of the Act as well as any particular principles relevant to the particular class of application. The first principle and most important of these principles is s 4(a) which requires the Tribunal to ensure that 'the welfare and interests of such persons [persons who may be in need of protection] should be given paramount consideration'.
In cases where there is a history of conflict between the parents, it may well be in the protected person's best interests for a neutral and professionally experienced functionary such as the Public Guardian to have a role in mediating differences.
P did not dispute at our hearing Q's statement that she had been primarily responsible for R's care since birth, and especially since she and P had separated and divorced. P's present degree of personal, day to day, involvement in R's care and support is, comparatively, a new experience for R. In those circumstances, it is plain we think that care needs to be taken to ensure that R's bond with his mother is maintained.
It is clear from the reasons given in 2015, and again in the reasons under appeal, that the Tribunal was conscious of these difficulties in the approach it took.
In our view, the Tribunal applied the criteria set out in s 4 and s 25G to the case.

(3) Procedural Fairness

The procedural fairness question goes to two areas of tension as between P and Q - P's adequacy as a carer, and the role played in R's care by P's partner S.
P considers that he was unfairly treated in having a very serious allegation of misconduct against him incorporated into the Tribunal's reasons for decision, and the Tribunal making no reference to a positive letter in support of his performance of his carer responsibilities from his partner, S.
The Tribunal received evidence from R's brother, K. K gave oral evidence by telephone, further to a written statement provided to the Tribunal. K made, to use P's description (which we think apt) scandalous comments about P's adequacy as a father. K alleged that during his childhood P had been violent towards him. R was in attendance at that hearing. P referred to the emotional impact, as he saw it, on R of what he heard K say.
P's complaint is that it was unfair of the Tribunal to entertain these comments, and record them in its reasons for decision, and not to give him a full opportunity to reply. It did record his denial of the claims.
At this point of its deliberations, the Tribunal was inquiring into the continuation of the accommodation function as part of the guardianship order. The allegations made by K were grave in their terms, and recorded in a specific way in the reasons for decision. The Tribunal followed with the statement: '[R] denied the claims made by [K].' The Tribunal then referred to the Duty Guardian's opinion that differences of this kind supported the need for an ongoing substitute decision maker in relation to accommodation. The Tribunal decided to leave decisions in relation to accommodation with the Public Guardian. We note, in that regard and at variance with P's account to us of his desire at the time of the first instance hearing, that P had agreed that there was a continuing need for a substitute decision maker for accommodation (reasons [20]).
We think the reasons read in context indicate that the Tribunal did not give any weight to the allegations themselves, saw them as further evidence of the degree of animosity that existed on either side of R's care situation, and another instance of the kind of conflict that justified keeping the Public Guardian as the overseer of accommodation. The Public Guardian had expressed satisfaction with the present accommodation arrangements. There was, therefore, no need to go on and assess the strength of the allegations.
Moreover the Tribunal saw it as necessary to continue the orders in relation to access and healthcare, placing those functions under the control of the Public Guardian, given that there was disagreement and entrenched conflict between the parents.
In approaching the task of reviewing a Tribunal decision for error of law, we agree with the view expressed by Lindsay J in A (by his tutor Brett Collins) v Mental Health Review Tribunal (No4) [2014] NSWSC 31 at [225] (there referring to the Mental Health Review Tribunal): In reviewing Reasons for Decision published by the Tribunal the court approaches the task beneficially, fairly and not in an overzealous search for error: Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259 at 271-272.
In our view the Tribunal could perhaps have used more circumspect language to refer to K's allegations. It should, ideally, have indicated expressly that it did not propose to make any finding on them. P is in the difficult position that a serious allegation remains in the official record of the reasons for decision.
However we do not consider that their ventilation of itself gave rise to any procedural unfairness to P in the circumstances of the case. The Tribunal accepted the positive report received from the Public Guardian as to the adequacy R's existing care and accommodation arrangements. It expressed no concern about the possibility that P might continue as carer. In our view K's allegation made no difference to the outcome of the case (applying the test in Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141). On the other hand, we think it unwise for a Tribunal decision to ventilate a serious allegation which if true would cast considerable doubt on the suitability for the role of a carer, and then just simply note that it is denied. Ideally, a view should be expressed as to what is to be done with the allegation. It would be better if the Tribunal stated expressly what regard if any it had given to the allegation.
The second concern raised by P was the non-reference to S's positive letter about him. It is clear from the Tribunal's file that it had that letter before it. It did not refer to it in the reasons, and P questions whether it was taken into account. Clearly P feels that the direct reference to K's negative statements about his adequacy as a carer, and the omission of any reference to the positive things said about him by S painted an unfair picture of him. It is apparent that the Tribunal accepted the Public Guardian's reports on this issue. It was not necessary to refer to S's letter.

(4) Duration of Order

The final matter raised by the appeal relates to the duration of the order. As is usual in the early period of operation of protective orders, there has been a first hearing followed a year later by a review hearing. The Tribunal includes expert membership in the field of disability services. The members have special knowledge of the nature of specific disabilities, and their likelihood of continuation. The Tribunal is well placed to form a view on whether after the first review the next review period should move from one year to a longer period. This is a discretionary judgment. Nothing was put to us to suggest that any irrelevant considerations were brought to bear on that judgment.

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: 20 September 2016

At a glance

Court

Decision date

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Judgment (11 paragraphs)

Parties

Cases Cited (5)