ZGW v ZGY

NCAT Appeal Panel|2018-02-23

Introduction

The appellant, ZGW, is a nurse and he has appealed a decision of the Tribunal made in the Guardianship Division on 12 September 2017. The decision of the Tribunal related to the appellant's mother, ZGX, the second respondent in these proceedings. ZGX is 89 years of age and has a diagnosis of Alzheimer's Disease.
The appellant and his sister, ZGY (the first respondent in this appeal and daughter of ZGX), have at all times agreed that their mother is "a person in need of a guardian".
In July 2017, ZGY made an application to the Guardianship Division of the Tribunal seeking review of the enduring guardianship instrument and power of attorney executed by ZGX, in October 2012. ZGX had appointed the appellant and ZGY, jointly as her enduring guardians and she appointed the appellant and ZGY severally as her attorneys. In August 2017, the appellant also made an application to the Guardianship Division seeking review of the instruments executed by his mother in October 2012.
In relation to the applications concerning the enduring guardian appointment by ZGX, the Tribunal determined that the applications for review should be treated as if they were an application under the Guardianship Act 1987 for a guardianship order for ZGX. The Tribunal went on to decide the following: 1. as a result of her Alzheimer's Disease ZGX is unable to make important life decisions and is a "person in need of guardian" and for whom an order could be made; 2. it was in ZGX's best interests that a guardianship order be made and that the order should include the functions of accommodation, access, services, health care, and medical and dental treatment; 3. the Public Guardian be appointed ZGX's guardian; and 4. 12 month guardianship order should be made.
In November 2017, the Tribunal made similar orders in regard to the review applications concerning ZGX's appointment of the appellant and ZGY as her attorney. However, in this appeal the appellant only seeks to appeal the decision of the Tribunal relating to the guardianship order that it made.

A party's right of appeal

Subsection 80(1) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) makes provision for a party to proceedings before the Tribunal, where an "internally appealable decision" is made, the right to appeal that decision by the Appeal Panel. The decision of the Tribunal the appellant seeks to appeal is an "internally appealable decision".
A party's right to appeal against such decisions and orders is restricted to "questions of law" and it may be extended to "other grounds" with the leave of the Appeal Panel: see NCAT Act, s 80(2)(b).
Clause 25(4)(c) of the Civil and Administrative Tribunal Rules 2014, provides that, subject to the Appeal Panel extending time, an appeal from an internally appealable decision is to be lodged within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later).
In this case, the appellant had lodged his appeal 8 days late and sought an extension of time: see NCAT Act, s 41. That application was not opposed by ZGY. In light of that concession and the fact that the delay in lodging the Notice of Appeal was not significant we are satisfied that it is appropriate to make the order sought and have made an order accordingly.

Grounds of appeal

In his Notice of Appeal the appellant contended that the Tribunal contravened the Guardianship Act, the actual evidence before it and the rules of natural justice. Of particular concern to the appellant was that the Tribunal had ignored his evidence and revoked his enduring guardianship in the face of clear, documented and indisputable evidence that he had performed his role as intended. He went on to say that there was no evidence before the Tribunal to support its reasoning and decision to appoint the Public Guardian "rather than a willing, qualified, experienced, skilled and self evidently capable family member".
The appellant also sought leave to appeal on similar grounds.
The appellant elaborated on his grounds of appeal in a 21 page written submission attached to his Notice of Appeal and in further submissions he filed and served in January 2018.
We have dealt with the appellant's grounds of appeal in more detail below.
The orders sought by the appellant were for the decisions of the Tribunal to be set aside and to approve the resignation of his sister as joint guardian and confirm his appointment as his mother's guardian.

Reply to the grounds of appeal

In her Reply to the appeal, ZGY said she supported the decision of the Tribunal and that she would like things to settle down so that they could all get on with their lives.

The hearing of the appeal

With the leave of the Appeal Panel, the appellant appeared by telephone at the hearing of his appeal. He lives and works in rural New South Wales and was not able to attend the hearing in person.
ZGY appeared in person at the hearing. Supporting ZGY was her other brother (i.e. the third child of ZCX), who did not seek to be a party to the appeal. We note that this brother/son was also present at the hearing before the Tribunal below.
Prior to the hearing, the Appeal Panel, constituted by Principal Member Britton, had made an order under s 58 of the NCAT Act appointing a separate representative for ZGX. However, Legal Aid New South Wales was not satisfied that in the circumstances it was reasonable to provide a grant of legal aid for ZGX to be legally represented in these proceedings.
At the commencement of the hearing, the appellant, ZGY and their brother advised that there would be no appearance by their mother as she had no real understanding about the nature of the proceedings. It was agreed that the appeal could proceed without her being present.
There was also no appearance by the Public Guardian who had previously advised that he would enter a submitting appearance.

Decision of the Tribunal

In its reasons for decision, the Tribunal set out the background that gave rise to the applications made by ZGY and the appellant. In this regard the Tribunal noted that ZGX had been living in her own home when in May 2017 she had a fall that required hospitalisation.
At that time, ZGY had been closely involved in discussions with her mother's treating health professionals, where a decision was made for ZGX to be placed into respite care with a view to permanent placement in residential care. The Tribunal noted that according to ZGY and ZGX's treating Geriatrician this was a plan to which ZGX was agreeable.
On or about 19 June 2017, ZGX was transferred from the hospital to a respite care facility that had been arranged with the agreement of ZGY and ZGX's treating Geriatrician.
On 28 June 2017, the appellant took his mother, ZGX, back to her home and did not return her to the care facility as expected. As at the time of the hearing before the Tribunal below, ZGX was still residing in her home with the appellant.
As a result of ceasing respite care, there was a marked deterioration in the relationship between the appellant and his siblings (i.e. ZGY and the appellant's older brother). Communications between the appellant and his older brother ceased at the end of June 2017 and by the end of July 2017 communications between the appellant and his sister, ZGY, the oldest of the three siblings, had also ceased.
The Tribunal noted that in the proceedings before it, ZGY had initially sought removal of the appellant as their mother's guardian. However, as at the time of hearing she no longer sought to be an enduring guardian and had no preference as to whether the appellant or the Public Guardian were to be appointed enduring guardian.
The Tribunal also noted that the appellant sought to be appointed sole enduring guardian for his mother.
At [30] the Tribunal said: "Having conducted a review, the Tribunal considered that the appointment of enduring guardian was unworkable, with no communication between the two enduring guardians and their joint appointment clearly not operating in [ZGX's] best interests. … The Tribunal formed the view that it was the most appropriate course of action and in the best interests of [ZGX] to deal with the application for review as an application for a guardianship order, pursuant to section 6K(3), of the Guardianship Act."
At [42], the Tribunal noted that while ZGX was able to express her wishes, including about where she lives, these were subject to change and were influenced by a number of factors including in whose company she is in at particular points of time. The Tribunal went on to say that having had the opportunity to observe ZGX during the course of the hearing, her presentation was consistent with the professional evidence of cognitive deficits arising from her disease that prevented her from making important life decisions. On this basis, the Tribunal found that ZGX was a person in need of a guardian.
In coming to the decision that it was satisfied that it was in ZGX's best interest that a guardianship order be made, the Tribunal had regard to the matters set out in s 14(2) of the Guardianship Act and the evidence before it. In this regard the Tribunal had regard to the following matters: 1. the fact that communications between the appellant and his siblings had broken down; 2. ZGX's Geriatrician had expressed concern about the appellant's decision to remove his mother from the respite care facility without any formal support services having been arranged; and 3. the fact that the appellant ordinarily lives and works some distance away from where his mother lives and that, subject to the availability of suitable support services, it was agreed ZGX could continue to live in her own home.
In deciding who should be appointed as the guardian of ZGX, the Tribunal noted that the appellant sought to be appointed as sole guardian. In this regard the Tribunal noted that it was unable to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed: see Guardianship Act, s 15(3).
The Tribunal also noted the matters of which it must be satisfied in appointing a person as a private guardian: see Guardianship Act, s 17(1). In this regard the Tribunal found that: 1. ZGX loved all her children and wanted them to be part of her life; 2. ZGX's current wish was that she continue to be cared for by the appellant; 3. it was troubled by some of the statements made by the appellant. For example, the appellant's assertion that his mother made her own decision to leave respite care and that he was merely supporting his mother to carry out her wishes, which was in contrast to the evidence that his mother had been supportive of the plan to enter respite and that she had settled in well into the respite care facility; 4. it was the decision of the appellant and not ZGX that she be reviewed by her treating Geriatrician and that she engage a solicitor; 5. the appellant was in effect making and implementing the majority of important decisions for his mother; and 6. the current conflict between ZGX's children was significant in that there was no significant communication between them and if the appellant were to be appointed as guardian it was difficult to foresee any effective and non-conflictual consultation occurring in respect of the important decisions pertaining to ZGX's accommodation and care.
At [77] the Tribunal concluded by saying: "Therefore, the Tribunal considered that an independent guardian, rather than a family member, should be appointed for [ZGX]. Such an appointment will help ensure the views of [ZGX] and the views of the important people in her life are taken into account, and will provide a neutral and impartial approach to decision-making."
As we have noted above, the appointment of the Public Guardian as ZGX's guardian was for a period of 12 months.

Consideration

At the hearing we explained to the appellant a number of times that an appeal was not a fresh hearing of the same matters that were before the Tribunal below.
Instead, in these proceedings, he bore the onus to identify where, in law, the Tribunal below had erred, or alternatively an error in the decision of the Tribunal which warranted a grant of leave to appeal: see Collins v Urban [2014] NSWCATAP 17 at [84]. Leave will normally granted only where there is: 1. "an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand"; and/or 2. "a factual error that was unreasonably arrived at and clearly mistaken".
We appreciate the appellant is not legally trained and he may have found it difficult to couch his submissions in terms of what he was required to prove. Nevertheless, we have identified from the material he has filed the following as possible grounds of appeal (i.e. where the Tribunal erred): 1. Procedural matters - a failure by the Tribunal to comply with the NCAT Act and the Guardianship Act; 2. A failure by the Tribunal to take into account and have regard to the appellant's evidence; and 3. Placing emphasis on the subjective and unsupported statements and evidence of ZGY and his mother's Geriatrician.

Procedural matters

The appellant's first ground of appeal relates to procedural matters. He asserts the Tribunal conducted the hearing in a rigid and inquisitorial manner and did not attempt to promote or use any resolution processes.
While the appellant obtained a CD recording of the hearing he did not point us to any part of that recording that supported his assertions. However, it is evident from the Tribunal's reasons for decision, the material before us and what we were able to observe during the hearing of this appeal, that there was and continues to be considerable conflict between the appellant and his siblings in regard to their mother's on going care.
We note that there was a three-hour hearing before the Tribunal in which it only dealt with the issue of whether a guardianship order should be made and who should be appointed as ZGX's guardian. That is, there was insufficient time to deal with the applications to review the 2012 power of attorney executed by ZGX, which was adjourned to another day.
On the material before us, the Tribunal conducted the proceedings before it in accordance with the guiding principles set out in s 36(1) of the NCAT Act. The appellant has failed to identify where the Tribunal failed to observe the rules of natural justice or any of the other procedural requirements prescribed in s 38 of the NCAT Act.
Hence we find that the appellant has failed to establish this ground of appeal.
The appellant asserted that the Tribunal waived or ignored his mother's right to legal representation.
Section 45(1)(a) of the Civil and Administrative Tribunal Act provides that a party to proceedings before the Tribunal has the carriage of his/her own case and is not entitled to be represented by any person. However, s 45(1)(b) gives the Tribunal the discretion to grant leave for a party to be legally represented.
In this case, the Tribunal noted in its reasons for decision that the appellant had sought to be legally represented by a solicitor. The solicitor, who was present at the hearing, had informed the Tribunal that he had been approached by the appellant and his mother. As we have noted above, the Tribunal found that this approach had been at the instigation of the appellant and not his mother. At [16], the Tribunal found that there had been no request by ZGX or ZGY to be legally represented and it was not satisfied that there was a sufficient basis to invoke the Tribunal's discretion to grant leave to the appellant to be legally represented.
The appellant asserted that the Tribunal had erred in that it was not he but his mother who was seeking to be legally represented.
Again, the appellant did not point to any section of the CD recording of the hearing before the Tribunal, or evidence that was before the Tribunal below which supported his assertion. In any event, even if he were able to provide such evidence, in our opinion, on the material before it, it was open to the Tribunal to reach the conclusion it had reached.
Accordingly, we find that the appellant has failed to establish this ground of appeal.
The appellant also asserted that the Tribunal failed to comply with the provisions of Guardianship Act. In our opinion, it is clear from the contents of its reasons for decision that the Tribunal had regard to the relevant provisions of the Guardianship Act in so far as they were relevant to the particular issues it was required to decide. For example, in determining whether the Tribunal should make a guardianship order and what order should the Tribunal make, the Tribunal specifically referred to the matters prescribed in s 14(2) of that Act which the Tribunal is required to take into account. The Tribunal then went on to discuss any applicable legal principle to the matters in issue, the evidence that was before it relating to that matter and its findings in regard thereto.
While the appellant may not have agreed with the findings reached by the Tribunal, this does not mean the Tribunal erred in applying the applicable provisions of the Guardianship Act. As we have already noted, in our opinion we can find no error in the Tribunal's reasons for decision, which are methodically and clearly set out.
Accordingly, we find that the appellant has failed to establish this ground of appeal.

Failure to take into account the appellant's evidence

The appellant contends that the Tribunal ignored his evidence, in particular that he had at all times acted in the interest of his mother and that it was her wish and not his wish to remove her from respite and take her home.
In our view, the Tribunal did consider the evidence of the appellant in so far as it was relevant to the issues it was required to determine under the Guardianship Act. For example, at [72] the Tribunal noted that there was no evidence that the appellant was not providing appropriate supervision and care for his mother. What was of concern to the Tribunal was the lack of communication between the appellant and his siblings concerning his mother's ongoing care. In this regard the Tribunal expressed some concern about the appellant having failed to consult the important people in the life of his mother, which included her treating Geriatrician, before he took his mother home.
As we have already noted, in determining what was in the best interest of ZGX, the Tribunal accepted that ZGX loved all her three children and it was important to her to preserve her relationships with each of her children: see Guardianship Act, s 4. As we have noted above, at [30] the Tribunal found that due to the breakdown of communication between the appellant and ZGY the then existing appointment of enduring guardian was unworkable and not operating in the best interest of ZGX.
That there was a breakdown in communication was not disputed. Who was to blame for that lack of communication and resolving that issue was not a matter the Tribunal was required to inquire into and it did not do so.
It is evident from the Tribunal's reasons for decision that it did take into account ZGX's wish that the appellant continues to care for her and that the appellant was willing to do so: see at [71] to [75]. However, at [76] the Tribunal found that due to there being no effective communication between the siblings it was difficult to "foresee any effective and non-conflictual consultation occurring in respect of important decisions pertaining to ZGX's accommodation and care" if the appellant were to be appointed as her guardian. In making this finding, the Tribunal did not attribute any blame on one or more of the siblings.
In our opinion, the above finding of fact was clearly open to the Tribunal on the material before it. We also find that the orders made by the Tribunal, based on its findings, were appropriate and were made in accordance with ss 4, 14 and 17 of the Guardianship Act.
Accordingly, we find that the appellant has failed to establish this ground of appeal.

Placing emphasis on the subjective and unsupported statements and evidence of ZGY and his mother's Geriatrician

In his submissions, the appellant makes a number of serious allegations against his sister, ZGY, concerning her conduct as their mother's appointed guardian and her evidence before the Tribunal. In our view, these allegations demonstrate the extent of the animosity between the appellant and his sister. They are also indicative of the appellant disagreeing with the findings made by the Tribunal.
For the reasons we have given, it was not for the Tribunal to determine the cause of the animosity between the siblings, or to resolve that animosity. Hence, it is not a matter relevant to this appeal.
As to the findings of the Tribunal, the appellant has failed to demonstrate where the Tribunal made an error in its decision or reasons for decision by reason of his assertions. In our opinion, the findings that were made by the Tribunal were open to it on the evidence.
In his written submissions the appellant also makes a number of allegations against his brother. Again, for the reasons we have given, this is not a matter relevant to this appeal.
Finally, the appellant is critical of the evidence given by his mother's Geriatrician to the Tribunal. In our view, this is again an example of the appellant disagreeing with the findings of the Tribunal. Again, the appellant has failed to demonstrate where the Tribunal made an error in its decision or reasons for decision by reason of his assertions.
Accordingly, we find that the appellant has failed to establish this ground of appeal. We nevertheless note that the appellant and his siblings all agreed that the Tribunal's appointment of the Public Guardian as their mother's guardian was working well.

Conclusions

For the reasons set out above, we find that: 1. time should be extended within which the appellant is to lodge his Notice of Appeal; 2. the appellant has failed to establish an error of law in the Tribunal's decision or reasons for decision; and 3. the appellant has otherwise failed to identify an error in the Tribunal's decision or reasons for decision.
Hence it is appropriate to make orders extending time within which the appellant is to lodge his Notice of Appeal and otherwise refusing leave to appeal and otherwise dismissing the appeal.

Orders 1. Time is extended in which the appellant is to lodge his Notice of Appeal to 16 November 2017. 2. Leave to appeal is refused. 3. Appeal dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

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: 30 May 2018

At a glance

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Judgment (14 paragraphs)

Parties

Cases Cited (1)

Cited By (1)