ZKF v ZKG

Publication of the names of the parties

1. The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1) and 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.
2. In this appeal, the Registrar assigned pseudonyms to the parties: "ZKF" (the appellant), "ZHG" (the appellant's mother and the person the subject of the guardianship order which was the subject of this appeal) and "ZKH" (ZHG's daughter and ZHG's "carer"). For ease of reading, in these reasons we will not refer to the parties by pseudonyms. Rather, we will refer to ZKF, ZHG and ZKH as "the appellant", "the mother" and "the daughter", respectively.

Appointing a guardian: statutory framework

1. Where the Tribunal decides to make a guardianship order, it must appoint a person(s) who is aged 18 years or more as the guardian of the person under guardianship: s 16(1)(a) of the Guardianship Act.
2. Where, as in this case, the Tribunal decides to make a continuing, as opposed to a temporary, guardianship order, s 15(3) of the Guardianship Act instructs that the Tribunal must not appoint the Public Guardian where another person can be appointed as the guardian: 15 RESTRICTIONS ON TRIBUNAL'S POWER TO MAKE GUARDIANSHIP ORDERS … (3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person. …
3. Before appointing a person to act as the guardian of the person under guardianship, the Tribunal must satisfy itself that the proposed guardian satisfies each of the three matters listed in s 17(1): 17 GUARDIANS (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
4. Section 17(1) does not apply to the appointment of the Public Guardian: s 17(2).
5. Section 4 imposes a duty on anyone exercising functions under the Guardianship Act, including the Tribunal and any appointed guardian, to observe the principles in s 4 of that Act: 4 GENERAL PRINCIPLES It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.

Background to decision under appeal

1. In September 2017, the manager of the aged care facility where the mother resided, and continues to reside, made an application to NCAT seeking guardianship and financial management orders in respect of the mother. Apparently, the trigger for that application was ongoing conflict between the appellant and the daughter about their mother's care and accommodation.
2. On 18 January 2018, the Tribunal (Senior Members C L Grant and C M Kennedy and General Member R Epstein-Frisch) made a guardianship order in respect of the mother for a term of six months, appointing the Public Guardian to act as guardian (the original guardianship order). In its reasons for its decision at [14] the Tribunal gave this explanation for making the term of the order six months: The Tribunal decided to make an order for 6 months and this should be enough time to ensure the Public Guardian would be able to undertake important decisions on [the mother]'s behalf regarding her accommodation.
3. On 20 July 2018, as required by s 25(2) of the Guardianship Act, the Tribunal (Senior Member B Shipp) conducted an end-of-term review of the original guardianship order. The Tribunal decided to renew that order for a period of 12 months, again re-appointing the Public Guardian to act as the mother's guardian and to confer on the Public Guardian the function of making decisions about the mother's accommodation. This is the decision under appeal.
4. In the hearing to review the original guardianship order, the appellant urged the Tribunal to appoint him as his mother's guardian. The daughter opposed that appointment and urged the Tribunal to re-appoint the Public Guardian.

Grounds of appeal

1. The appellant appeals on a question of law against the decision to renew the original guardianship order. In addition he seeks leave of the Appeal Panel, to appeal under s 80(2)(b) of the NCAT Act.
2. In the grounds of appeal the appellant identified a single question of law, namely that the Tribunal misapplied s 17(1). The appellant contends that the Tribunal applied the wrong legal test by imposing an additional requirement to the criteria for appointment as guardian, namely that "a full independent consideration" of the appellant's proposal to move the mother to live in England be undertaken.
3. In addition, the appellant seeks leave to appeal on the ground that the finding made by the Tribunal at [44] that he was unable to make a "best interests" decision about his mother's accommodation was against the weight of evidence.

Reasons given by the Tribunal for appointing the Public Guardian

1. The Tribunal's reasons for decision detail the dispute between the appellant and the daughter about whether, as proposed by the appellant and supported by the mother, the mother should return to live with the appellant and his medical practitioner wife in England. In its reasons at [24], the Tribunal summarised the views of the parties about the proposal: (a) [The mother] expressed the strong and consistent view that she did not want to remain living at [the aged care facility], and she wanted her son to take her back to live with him in London. She suggested it was "very hard" living at [the aged care facility]. She does not want to live with her daughter. She wants to live with her son. She suggested it was "shameful" living in the house of her daughter and son-in-law. (b) [The appellant] was keen to honour his mother's wishes and return with her to London. He had prepared a detailed submission indicating his plans for his mother's care if his wishes are granted, including renovations to his home to accommodate her needs. He had arranged for respite care for his mother while the renovations were being undertaken. He and his wife plan to provide care for his mother directly and with care agencies. He has also made arrangements with Qantas for safe transport of his mother to the UK. (c) [The daughter] indicated she had only received her brother's detailed submission on the evening before the hearing (hence my decision to allow further time for submissions). She suggested this was the first detailed information provided by [the appellant] relating to his care plans for their mother. [The daughter] remains of the view that her mother is best cared for in her current environment at [the aged care facility]. She does not believe her brother is genuine in his desire to care for her mother, as this is totally inconsistent with his previously expressed views. She acknowledges her mother's views, but states this is inconsistent with her previously expressed unhappiness about living in London. She suggests her mother is "like a child" and needs professional care, which is what she is receiving now. She knows how "mentally exhausting" it is to care for her mother, and does not believe her brother would be able to manage this. (d) [The manager of the mother's care facility] indicated that [the mother]'s care needs have increased since she has been a resident of [the aged care facility]. She was quite independent at first, but now cannot walk and needs a stand-up lifter. She refuses any physiotherapy, and prefers just to stay in bed. If living in a home, she would need someone to constantly be available for her, and would need 2 persons for transfers, and appropriate modifications. She has seen the proposals put by [the appellant] and believes they are "feasible".
2. The appellant was the only person to nominate to act as the mother's guardian. Under the heading "Who should be appointed as the guardian?" the Tribunal noted that in the January 2018 hearing, the mother stated that she "wanted her son to be appointed guardian" at [28]. The Tribunal wrote at [28] that the appellant: [I]ndicated a willingness to be guardian, stating that he knew what his mother wanted and that he would act in her best interests. He stated he could communicate with [the daughter] in a civilised manner, while acknowledging that they had stopped speaking to each other in 2016.
3. The Tribunal went on to record, at [29], that the appellant's proposal to be appointed guardian appeared to be: [P]redicated upon the likelihood that [the mother] would be returning to the UK with him, and that it would be most practical for him to be the appointed representative. He noted that he had briefed solicitors in the UK who could assist him. He states: "I request the Tribunal appoint me as my mother's guardian and a financial manager so I can take my mother home to live with me, so she can enjoy the last years of her life at home in England surrounded by her family and friends".
4. After referring to ss 15(3) and 17(1) of the Act and discussing the relevant principles which govern the operation of those provisions (at [35]-[40]), the Tribunal stated at [40]: "[T]he suitability of any private guardian should be considered before appointing the Public Guardian".
5. The Tribunal then went on to consider the question of whether it could be satisfied that the appellant satisfied each of the matters listed in para (a), (b) and (c) of s 17(1). With respect to s 17(1)(a), the Tribunal concluded, contrary to the assertions made by the daughter, that the appellant's personality was "generally compatible" with the personality of the mother: at [42]. With respect to s 17(1)(b), the Tribunal found that despite allegations made by the daughter about the potential use of the mother's funds by the appellant for his own benefit, "There is also no clear evidence of any undue conflict of interest (especially financial) between [the appellant] and his mother": at [43].
6. With respect to par (c) of s 17(1), the Tribunal concluded that while the appellant was "clearly willing" to be appointed as his mother's guardian, the Tribunal could not be satisfied that he was able to do so, reasoning at [44] and [45]: [I] have decided however that he is not "able" to make the decision about his mother's accommodation, in the context of the paramount consideration of [the mother]'s welfare and interests. It was clear that [the appellant] was absolutely committed to the decision to return his mother to his care in the UK, even to the extent of having booked a ticket for her to leave with him about one week after the hearing. He also notes correctly that this is in accordance with his mother's stated wishes. Appointing [the appellant] as guardian is therefore tantamount to making the decision to remove her from her current accommodation at [the aged care facility], and returning her to the UK. I am not satisfied that [the appellant] would be able to make any other decision as guardian than this, even with the assistance of his solicitors as a channel of communication. In my view, [the mother]'s welfare and interests require a full independent consideration of [the appellant]'s detailed proposals, both in relation to the travel arrangements and the arrangements for her short-term and long-term care in the UK. [The mother]'s views, and her capacity to understand her care needs, must also be carefully taken into account. The only way this can occur is by maintaining the appointment of the Public Guardian. I cannot be satisfied that [the appellant] can make this decision in a sufficiently dispassionate and objective way which gives paramountcy to [the mother]'s welfare and interests. For these reasons, I find that [the appellant] cannot be properly appointed as guardian. In the absence of any other suitable person, I appoint the Public Guardian.

Did the Tribunal misapply s 17(1) of the Guardianship Act?

1. The appellant contends that while the Tribunal correctly recited the statutory provisions and principles which govern the exercise of the power to appoint a guardian for a person under guardianship, it misapplied those provisions. It did so, contends the appellant, by adding to the criteria listed in s 17(1), a requirement that there be "a full independent consideration of [the appellant's] detailed proposals" that his mother return to live in England: at [45]. The daughter disagrees.
2. The assessment of whether, as contended by the appellant, the Tribunal impermissibly added an additional criterion to the matters listed in s 17(1) requires that the Tribunal's reasons be read as a whole and not approached with an "eye keenly attuned to the perception of error": Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272.
3. By the combined operation of ss 15(3) and 17(1) of the Guardianship Act, if satisfied that the appellant (the only person to nominate to act as guardian) met the criteria for appointment listed in s 17(1), the Tribunal was precluded from appointing the Public Guardian to act as the guardian of the mother.
4. As noted, the Tribunal found that the appellant satisfied pars (a) and (b) of s 17(1). In addition, the Tribunal found that the appellant satisfied the first limb of par (c) of s 17(1) - being willing to exercise the accommodation function conferred by the guardianship order. However, the Tribunal was not satisfied that the appellant satisfied the second limb - being able to exercise that function.
5. The task posed by s 17(1)(c) required the Tribunal to make an evaluative judgement about whether the appellant was "able" to exercise the accommodation function. This required the Tribunal to consider not only whether the appellant possessed the necessary skill and experience to be able to exercise that function (or put another way, to make decisions about his mother's accommodation on her behalf) but also whether he had the personal attributes, such as judgement and integrity, required to exercise that function. In addition, as correctly acknowledged by the Tribunal, this required the Tribunal to consider whether the appellant was able to make those decisions in a manner consistent with the statutory duty imposed by s 4 of the Guardianship Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J).
6. A fair reading of the Tribunal's reasons indicates that the finding that the appellant was not "able" to make the decision about his mother's accommodation "in the context of the paramount consideration of [the mother]'s welfare and interests" turned on the fact that he was "absolutely committed" to his plan that his mother return to live in England. As the Tribunal noted at [33], "Appointing [the appellant] as guardian is … tantamount to making the decision to remove her from her current accommodation at [the aged care facility], and returning her to the UK".
7. The Tribunal went on to state at [45]: In my view, [the mother]'s welfare and interests require a full independent consideration of [the appellant]'s detailed proposals, both in relation to the travel arrangements and the arrangements for her short-term and long-term care in the UK. [The mother]'s views, and her capacity to understand her care needs, must also be carefully taken into account. The only way this can occur is by maintaining the appointment of the Public Guardian.
8. Notably, the Tribunal did not find that the appellant's plan to return his mother to England was so lacking in merit that the only available finding was that the appellant lacked the judgement necessary to make decisions about his mother's accommodation. Nor did the Tribunal suggest that the appellant lacked insight into his mother's needs or, in developing the plan, failed to give, or endeavour to give, paramount consideration to her interests. Nor did the Tribunal impugn the appellant's motives for concluding that his mother should return to live in England, expressly rejecting the daughter's allegation that the plan evidenced "undue conflict" between the interests of the mother and those of the appellant: at [44]. Rather the Tribunal appears to have concluded that the appellant was not "able" to perform the accommodation function because he had concluded without the benefit of an independent assessment, that his mother's interests would be best served if she were to return to England, a view to which he was wedded. The Tribunal reasoned that because of his firm view, an independent assessment was required of the plan. While the Tribunal referred at [44] to the appellant being unable to make the decision about his mother's accommodation "in the context of the paramount consideration of [the mother]'s welfare and interests", read in context its reasons indicate that the Tribunal considered the determining factor to be the absence of an independent assessment of the plan, rendering the appellant ineligible for appointment.
9. The word "able" in par (c) in our view cannot be construed to mean the ability to provide a full independent assessment of what is in the subject person's best interests, particularly given the separate requirement, contained in (b) that there be no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship.
10. The Tribunal interpolated into s 17(1) an additional requirement, namely that an independent assessment be undertaken of the proposal to relocate the mother to England. The Tribunal concluded in effect that it would be preferable if the decision about the proposed move to England was made by the Public Guardian not the appellant. In so doing, the Tribunal deviated from the central question posed by s 17(1), namely whether the appellant was able to make that decision in a manner consistent with the statutory duty to give paramount consideration to the interests of the mother. That another reasonable mind (of an "independent assessor") might take a different view is not to the point. If the appellant satisfies the test, it is inappropriate to go further.
11. For these reasons we find that the Tribunal misapplied s 17(1)(c). The appeal must be allowed.

How should the appeal be determined?

1. Having concluded that the Tribunal misapplied s 17(1) the decision to appoint the Public Guardian must be re-considered.
2. We have considered whether the decision should be re-determined by the Tribunal or by the Appeal Panel. As the appellant points out, having the decision reconsidered by the Appeal Panel has the advantage of a speedy resolution of the review of the initial guardianship order, which would be consistent with one of the guiding principles of the NCAT Act: the quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1).
3. Nonetheless, even though there may be a delay, we have decided it would be more appropriate for the matter to be re-determined by the Tribunal. First, in the appeal the appellant filed significant additional material in support of his claim to be able to exercise the accommodation function. The daughter, who was self-represented, did not engage with that material in the appeal. Second, the mother did not participate in the appeal. While she has repeatedly expressed the view that she wishes to return to England and live with her son, on the available material it appears that she has not had the opportunity to comment on her son's ability to act as guardian. Given the extent of her disability, it may be that she is unable to comment on that issue. A separate representative should be appointed for the mother.

Orders 1. The appeal is allowed. 2. The question of whether the appellant satisfies s 17(1)(c) of the Guardianship Act 1987 (NSW) is remitted to the Tribunal for reconsideration in accordance with these reasons, on the basis of the evidence that was before the Tribunal at the hearing on 20 July 2018 and any fresh evidence, or evidence in addition to or in substitution for the evidence that was before the Tribunal. 3. The decision to re-appoint the Public Guardian is set aside. This decision will come into effect once the Tribunal reconsiders the question identified in Order 2. 4. Pursuant to s 35(4)(c) of the Civil and Administrative Tribunal Act 2013 (NSW), ZHG is to be separately represented in the proceedings remitted to the Tribunal.

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: 22 March 2019