ZJA v Public Guardian

Uncontested facts

1. The facts recited at [2] and [3] and [5] to [11] above appear to be uncontested.

Time of lodgement of the application

1. The application was not filed within the time prescribed by clause 23 (3) (a) of the Civil and Administrative Tribunal Rules 2014; that is, within 28 days from the day on which the applicant became entitled under the enabling legislation to make the application. It is clear that ZJA became entitled to do that on 9 January 2018, when he received notice of the decision under review. His application was received by the Registry on 19 June 2018. However the Public Guardian, through Counsel, has confirmed that this issue is not pressed. Section 41 of the Civil and Administrative Tribunal Act (No.2) 2013 ("the NCAT Act") allows the Tribunal of its own motion to extend the period of time for doing anything under the legislation over which it has jurisdiction. For the sake of certainty I ordered that the time for the filing of the application by ZJA was extended to 19 June 2018.

ZJA's standing to bring this application

1. I am satisfied that ZJA had standing to make the present application as a person whose interests are adversely affected by the reviewable decision, within the meaning of s 80A (2) (d) of the Guardianship Act 1987 (NSW) ("the Guardianship Act"). That subsection is extracted in the Appendix.

Non-publication

1. Subsections 65(1) and (2) of the NCAT Act prohibit publication of the names of certain persons to whom proceedings relate, if the proceedings relate to certain decisions, including decisions made under the Guardianship Act. The prohibition extends to anyone to whom any proceedings in the Tribunal relate, a witness in proceedings, or someone who is mentioned or otherwise involved in the proceedings. These are proceedings relating to a decision made under the Guardianship Act. I have used the acronyms set out earlier in order to preserve the anonymity of family members.

My role: "standing in the shoes" of the decision maker

1. Sub-section 63 (1) of the Administrative Decisions Review Act 1997(NSW), ("the ADR Act"), sets out the role of the Tribunal in determining an application for administrative review under that Act. That role is: "… to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law."
2. Subsection 63(2) of the ADR Act provides that for the purpose of making my decision I may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
3. The effect of these two subsections is often described as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. As is often the way with these shorthand expressions, that is perhaps not a sufficiently precise description of the Tribunal's role. I am required to decide what the correct and preferable decision is having regard to any relevant factual material that is before me at the hearing and the applicable law. My decision must be made "as things stand" at the hearing and it is clear that I may take into account material that was not before the primary decision-maker. See: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77.

The section 4 principles

1. The Public Guardian exercises functions under the Guardianship Act. Section 4 of that Act sets out important general principles which must be observed by anyone exercising functions under the Act with respect to people who have disabilities. Clearly, the Public Guardian exercises such a function when it makes decision as a guardian appointed under a guardianship order. The Public Guardian accepts that in making the decision under review it was under a duty to comply with the section 4 principles. For convenience of reference, those principles are set out in the Appendix.

Sections 36 and 38 of the NCAT Act

1. The "guiding principle" and related requirements which are set out in section 36 of the NCAT Act have the effect of requiring the Tribunal, the parties to the proceedings and their respective legal representatives to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The section imposes a duty on the parties and their representatives to cooperate with the Tribunal to give effect to that principle. In order to comply with the guiding principle, the Tribunal obviously needs to take early steps to identify the real issues in the proceedings.
2. It follows from the nature of the application, the ruling by Principal Member Britton as to the reviewable decision and the relevant statutory provisions discussed above that the real issue in these proceedings is whether the Public Guardian's decision that ZJB be placed at the Speers Point property was the correct and preferable one.
3. Because the Public Guardian is under a duty to observe the section 4 principles and because I effectively stand in the shoes of the Public Guardian, it must follow that in making my decision I must also observe the section 4 principles. That in turn will involve some assessment by me of the extent to which and the manner in which the Public Guardian observed those principles in making the decision under review.

The Public Guardian's Case

1. The Public Guardian's case was set out in its written submissions (which for convenience I marked for identification as "MFI-R2") supplemented by the oral submissions of Ms Mahoney of Counsel. My understanding of the Public Guardian's case was assisted by a comprehensive affidavit sworn on 12 September 2018 by Ms Sharon Nichols, the Principal Guardian who acted as the guardian for ZJB at relevant times. There were no objections to that affidavit and Ms Nicholls was not required by the applicant to attend the hearing for cross-examination. I admitted her affidavit as Exhibit R1. I was also assisted by a chronology handed up by Ms Mahoney, (marked for identification as "MFI-R1") and by Ms Hall's substantial reasons for the decision under review which were sent to ZJA with her "Decision Information Notice" dated 12 December 2017. Her reasons were included in the bundle of documents filed by the Public Guardian in accordance section 58 of the ADR Act, which was admitted without objection as Exhibit R2.
2. In summary the Public Guardian's case is as follows: 1. The decision under review, to place ZJB at the Speers Point property, was made in a way which is consistent with the principles set out in section 4 of the Guardianship Act. 2. All relevant section 4 principles were satisfied at the time of the making of the decision and continued to be satisfied as at the hearing. 3. In particular, ZJB's placement at Speers Point with continuous ("24/7") support and the engagement of specific services through the National Disability Insurance Scheme was made with regard to, and continues to reflect, his needs interests and welfare as the paramount consideration, while allowing him to live a normal life in the community, to the extent which his disabilities permit. 4. The decision also enables ZJB to preserve his existing family relationships. The Public Guardian asserts that clear and cogent steps have been taken to ensure that there is contact between ZJB and his father ZJA. 5. The Public Guardian asserts that there is no other suggested or suitable accommodation available for ZJB. ZJA has not previously been able to maintain accommodation for his son, resulting in them living in a motel. It was asserted in the Guardianship Division proceedings and is repeated in Ms Hall's reasons for the decision under review and in Ms Nichols' affidavit at [32] that at that time ZJB's medication was not given to him in accordance with medical directions. 6. There is clear evidence, reflected in Ms Nichols' affidavit at [53] and [54] that it is not in ZJB's interests to be moved at the present time. Ms Nichols' evidence in this regard was not objected to by ZJA. The relevant paragraphs are in the following terms: "53. I am of the opinion that My Goal, in cooperation with other service providers, is currently meeting (ZJB's) needs. My Goal, who is providing (ZJB) with accommodation and daily support services, is working hard to ensure (his) quality of life is maintained… (ZJB's) accommodation at Speers Point offers him the stability and security he requires, as well as (allowing him) to live in the community… Although relocating (him) may be a possibility in the future, I do not believe it would be in (his) best interests at this time. In addition, changing or removing My Goal as (ZJB's) accommodation and daily support services provider would create instability and, at present, would not be beneficial to (his) needs. 54. I have no issue with (ZJA) having access to (ZJB), as long as (ZJB) can be well supported and access progresses slowly. Based upon my knowledge of (ZJB)…including my knowledge about his complex medical and psychological needs, (his) family history and dynamic, past behaviours exhibited by (him) after visits from (ZJA), I believe that supported and measured contact between (ZJA) and (ZJB) is in (ZJB's) best interests and will ensure the best outcome for (him) is achieved.

ZJA's Case

1. ZJA did not produce any documentary evidence at the hearing, but he did hand up a three page handwritten memorandum headed "Your Points" which I marked for identification as "MFI-1". At the hearing I gave him the opportunity to put his case to me orally and, at a later stage, to respond to the written and oral submissions of the Public Guardian. His case, as I understand it, is essentially as summarised below. I emphasise that ZJA's contentions were not in every case put to me by him in the precise terms set out below, but I have attempted to summarise his case accurately and fairly.
2. ZJA contended that the decision to place his son ZJB at the Speers Point property was not, at the time it was made or as at the hearing date, the correct or preferable decision because: 1. ZJB has expressed to ZJA that he is not happy at the Speers Point property; 2. his access to the community and to other people is restricted by supervising staff at Speers Point, to the extent that ZJB is virtually a prisoner there; 3. ZJB's existing family relationships, in particular his relationship with his father ZJA, are prejudiced by his continued accommodation at Speers Point; 4. ZJB's disabilities and in particular his autism spectrum disorder require specialised treatment and care, but the staff at Speers Point are not properly qualified to look after him; his medication and health care generally are being mismanaged and there are inadequate records of administration of medication to him. I understood ZJA to assert that these matters would improve if he had greater responsibility for supervising them, which required greater access to ZJB; 5. ZJA's family relationships and care would be enhanced by allowing him to live in closer proximity to ZJB on the Central Coast; and 6. the Public Guardian through its offices have had insufficient contact with ZJA all the supervising staff at Speers Point and other relevant health and care staff) to be able to make a proper decision as to his accommodation.

Initial observations

1. The starting point for my analysis is this. Even if each of ZJA's contentions as set out above were to be established, it would nevertheless still remain for me to identify the correct and preferable decision as to ZJB's accommodation.
2. I commence by observing that ZJA's contentions were at times, although not always, presented in an inflammatory style with substantial reliance on hyperbole; for example, he made assertions previously made by him to the guardian ad litem, that his son ZJB was being poisoned and "was being murdered" in his present accommodation, as a result of the Tribunal's and the Public Guardian's decisions. Those particular allegations were unsubstantiated. They were strenuously denied by the Public Guardian. They were found by the guardian ad litem to be baseless. I found them to be without foundation.

The written submissions of the guardian ad litem

1. Mr Bill Harris was appointed as guardian ad litem for ZJB. I understand that Mr Harris is independent of the Public Guardian. Unfortunately he was not available to appear at the hearing. However Mr Harris provided written submissions In those submissions, (marked for identification by me as "MFI-A2") Mr Harris addressed what he understood to be ZJA's contentions concerning his son's accommodation and needs. His summary of those contentions was consistent with my summary of them at [27] above.
2. I placed considerable weight on what appeared to be the detailed and objective observations and conclusions made by Mr Harris as guardian ad litem. His conclusions in relation to each of the principal assertions of ZJA are set out in the summary at [32] below.

Assessment of JZA's contentions in light of the guardian ad litem's report

1. I deal below with the guardian ad litem's response to ZJA's contentions as summarised at [27] above, adopting the same order of treatment as appears there. 1. (ZJB not happy in his present accommodation). Mr Harris concedes that during his visit to the premises ZJB was unable to express any views as to whether or not he was happy, but Mr Harris observed that "there was no obvious unhappiness observed.". In Mr Harris' view, the staff at Speers Point demonstrated a practical understanding of ZJB's day-to-day presenting behaviours. They outlined to Mr Harris what appeared to be appropriate responses to his behaviour. Mr Harris reported that he saw no visible evidence of neglect, malnutrition, abuse or injury that would lead him to conclude that ZJB is being inappropriately or inadequately cared for. 2. (ZJB denied access to the community and freedom of movement generally). Mr Harris appears to have undertaken a detailed inspection of the premises with a view to formulating comments on these matters. He reported that the house at Speers Point had locks on the front door as do normal houses in the community and a sign inside the front door which reads "(ZJB) Stop Here". Mr Harris expressed the view that although in accordance with good practice, there was a need for staff to monitor ZJB's movements to and from the house and to know his whereabouts so as to ensure his safety, there was no evidence during his visit that ZJB was in any sense "a prisoner" within the house or that he never left the house. 3. (Existing family relationships prejudiced) Mr Harris noted that the staff at Speers Point supervises all contact between ZJB and ZJA. He opines that if the allegations that ZJA removed ZJB without consent from the House With No Steps accommodation and at that time stopped his medication were made out, then supervised contact as currently implemented at Speers Point would be the only realistic safe practice. Although Mr Harris accepted that ZJA, as ZJB's father, wishes to care for his son and wants what he feels is best for him, he was not persuaded that ZJA is fully aware of his son's needs or that unsupervised contact between them is justified. 4. (Specialised treatment for ZJB unavailable; his medication and health care are mismanaged). Mr Harris noted that ZJA has expressed particular concerns about the qualifications and competence of the person nominated by My Goal Australia to be the principal carer for ZJB at Speers Point and has expressed concern that that gentleman and other staff are not qualified to meet ZJB's special care needs. Mr Harris confirms that he has no knowledge as to whether My Goal Australia's accreditation relates specifically to work with adults with autism, but that the principal carer was able to demonstrate to him a practical understanding of ZJB's day-to-day presenting behaviours and to outline appropriate responses. The contents of the house suggested that some thought had gone into making it safe. He saw no outward signs of inappropriate medication or health care. Mr Harris concluded that that there were no indications that ZJB is being inappropriately or inadequately cared for physically, that he was impressed by the principal carer and that he: "…would feel comfortable in the professionalism of the staff if the others are equally competent and knowledgeable". 1. (Family relationships and care enhanced by allowing ZJB to live on the Central Coast, closer to ZJA). Mr Harris' view is that ZJB's current placement is meeting his current needs, his care staff appears to be satisfactory and that he is not unduly restricted in his movement or his access to the community. He concludes that he has seen no evidence from ZJB of his awareness of ZJA's real needs. 2. (Insufficient contact by Public Guardian). Mr Harris concludes that ZJB will need a guardianship order into the future. He saw no evidence to suggest that the Public Guardian is providing an inadequate level of guardianship to protect ZJB's best interests.
2. For completeness, I should add that there were some other relevant matters raised by Mr Harris. However they do not dilute his findings as to ZJA's specific contentions. Those matters included: 1. the fact that ZJA is reported to have visited the premises twice since January 2018 and both times ZJB has "exploded" after his father had left the premises. Mr Harris notes that it is not clear whether those outbursts are cause by his father's visit, or because his father had subsequently left without him. Staff members had no view as to that; 2. the fact that furnishings and general atmosphere of the house were in his words "somewhat sterile with little visual stimulation" and that this could be improved fairly readily; and 3. that although there was no evidence that ZJB was being inappropriately or inadequately cared for, it would be appropriate for an assessment of ZJB to be undertaken by an autism specialist, particularly to assess whether it continued to be appropriate for ZJB to be given children's books as reading material and being allowed repeatedly to watch the same children's animated movies.

My conclusion as to ZJB's contentions

1. In relation to each of the matters outlined in the subparagraphs of [32] above, I preferred the detailed and objective observations of Mr Harris to the unsubstantiated assertions of ZJA. I found ZJA's assertions not to have been made out.
2. However, it does not necessarily follow that, in making the decision under review, the Public Guardian made the correct and preferable decision. My obligation is to ascertain the correct and preferable decision as at the date of this hearing.

The starting point

1. The first task is to ascertain whether the Public Guardian correctly applied the general principles under section 4 of the Guardianship Act in making its original decision (that is, the decision under review) on 12 December 2017.
2. The important thing to note is that, even if it were established that the Public Guardian reached that decision through some misapplication of the section 4 principles, its decision (the decision under review) must be affirmed by me if I find that as at the hearing date, it nevertheless represents the correct and preferable decision.

The legal authorities: application of the section 4 principles

1. In the matter of WL v NSW Trustee and Guardian [2011] NSWADTAP 22, the Administrative Decisions Tribunal Appeal Panel, with Deputy President Hennessy as presiding member, undertook a detailed analysis of the principles set out in section 4 of the Guardianship Act. The Tribunal observed, at [71], as follows: "Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 9064 0127, 14 August 1996). The "principles clause" in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles"
2. Four important aspects of the operation of the section 4 principles emerge from WL and the leading Supreme Court case of P v NSW Trustee and Guardian [2015] NSW SC579. 1. In WL the Deputy President noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4. 2. In the same case at [76], it was observed that the section 4 principles are not expressed in absolute terms and that phrases such as "as little as possible" and "as far as possible" make it clear that observing a particular principle does not mean that, where discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although some of the principles in section 4 are expressed in that conditional way, that cannot be said of the principle in paragraph (a), which is sometimes referred to as "the paramount principle". It unconditionally requires the welfare and interests of subject person to be given paramount consideration. 3. Thirdly, in WL at [75], the Deputy President confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and at the decision-maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. I would add the gloss in relation to s4 (a) that the wording of that particular paragraph compels the decision maker to give regard to the welfare and interests of the subject person and demonstrate their compliance with that requirement by referring to paragraph (a) expressly or by providing reasons for decision which demonstrate clearly that that paramount principle has been observed. To put it another way, paragraph (a) is always "relevant". 4. In P v NSW Trustee and Guardian at [56], Lindsay J of the Supreme Court of NSW, relying on the earlier case of Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at 543 [167], confirmed that: "… the Guardianship Act should be construed beneficially, having regard to its protective character.

Assessment of evidence and submissions on "correct and preferable"

1. I found the evidence of the responsible guardian for ZJB, Ms Sharon Nichols, to be detailed, professionally objective and reliable and for those reasons strongly persuasive. As noted above, particularly at [25] (6), the Public Guardian's case relied heavily on the assertions of fact made in Ms Nichols' affidavit. This strong and persuasive evidence from her, as the officer directly responsible for guardianship of ZJB, was supplemented by the detailed and objective review provided in the written report of Mr Hoyles, the guardian ad litem. I found his evidence to be objective, reliable and persuasive.
2. As noted at [29] and [34], I found the evidence and the submissions of the applicant ZJA to be much less reliable. It was in significant instances uncorroborated. It was presented in a random fashion and contained frequent irrelevant and unsupported assertions of fact.
3. For those reasons I preferred the evidence of Ms Nichols and Mr Hoyles.
4. I appreciate that ZJA is motivated by genuine love and concern for his son ZJB in bringing this application and generally in his attitude to the conduct and decision-making of the Public Guardian.
5. I made a substantial efforts during the hearing to provide ZJA with an understanding as to the real issue in these proceedings (namely whether the Public Guardian's decision to place his son at Spears Point was the correct and preferable one as at the date of this hearing), an understanding of the section 4 principles and of the sort of evidence which I would need in order to find in his favour as to the application of those principles. Unfortunately, ZJA's case as presented to me did not reflect a complete appreciation of those matters.

Conclusions and order

1. I conclude as follows. 1. The correct and preferable decision as at the day of the hearing is one which gives proper consideration to the relevant section 4 principles and gives paramount consideration to ZJB's welfare and interests and there is no proper basis for concluding that the Public Guardian failed to give proper consideration to those principles. 2. The evidence establishes that the Public Guardian gave proper consideration to each of those principles and in particular that ZJB should be encouraged as far as possible to live a normal life in the community, that his views should be taken into consideration, that the importance of preserving his family relationships should be recognised and that he should be encouraged, as far as possible, to be self-reliant in matters relating to his personal affairs. I am also satisfied that in reaching the decision under review the Public Guardian gave paramount consideration to ZJB's welfare and interests. 3. I am satisfied on the basis of the evidence as analysed by me above that as at the hearing date, when I give paramount consideration to ZJB's welfare and interests and appropriate weight to the other relevant factors in section 4 as described in (2) above, the correct and appropriate decision is that ZJB's place of accommodation is the Speers Point property.
2. In short, the decision under review is, at the date of this hearing, the correct and preferable decision. It follows that the decision under review should be affirmed and I ordered accordingly.

Orders 1. The decision under review is affirmed.

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: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles.

80A. Administrative review by the Civil and Administrative Tribunal of guardianship decisions of Public Guardian 1. An application may be made to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: 1. is made in connection with the exercise of the Public Guardian's functions under this Act as guardian, and 2. is of a class of decision prescribed by the regulations for the purposes of this section. 1. An application under this section may be made by: 1. the person to whom the decision relates, or 2. the spouse of the person, or 3. the person who has the care of the person to whom the decision relates, or 4. any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision."

17. Administrative review by Tribunal of guardianship decisions by Public Guardian For the purposes of section 80A (1) (b) of the Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed. 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: 21 March 2019