ZLE v ZLF

NCAT Appeal Panel|2019-07-08|Before: Armstrong J

Introduction

This is an appeal under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the NCAT Act") from a decision of the Guardianship Division of the New South Wales Civil and Administrative Tribunal (the Tribunal) made on 1 November 2018 in which the Tribunal continued the appointment of a guardian for ZLF and appointed the Public Guardian as ZLF's sole guardian. ZLF's father, ZLE, appealed the Tribunal's orders.
We have concluded that the appeal should be dismissed. As a result, the Public Guardian remains as ZLF's sole guardian with the authorities as outlined in the Tribunal's order of 1 November 2018.

Publication of the names of the parties

The publication or broadcast of the name of any person who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT, is prohibited: s 65(1) of the NCAT Act. Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties.

History of the current order

ZLF is a 35-year-old woman. She was born overseas and migrated to Australia in 1987 when she was 14 years old together with her father, ZLE, her mother and her sibling.
ZLF completed her education to Year 12, performed well at school and was a talented musician. Sadly, ZLF's general cognition and functioning has been impaired since the early-2000s. Her impairment is stated to be on a background of several reported traumatic events: difficulty adjusting to Australian culture; significant bullying at school, a failed love interest, and most significantly, the death of her mother from cancer in 2005.
ZLF has been diagnosed with chronic treatment resistant schizophrenia for many years and has had numerous periods of hospitalisation due to her psychiatric conditions.
On 5 September 2017, a social worker employed by NSW Health and engaged in providing care and treatment for ZLF, made an application with the Tribunal seeking the appointment of a guardian for ZLF. Subsequently on 18 September 2017, ZLE also made an application with the Tribunal, seeking the appointment of both a guardian and financial manager for his daughter, ZLF. At that time ZLF was living in the family home in an outer suburb of Sydney with ZLE and her sibling.
The Tribunal conducted a hearing on 15 November 2017 and made a guardianship order for ZLF and determined that such order be reviewed in 12 months' time. The Tribunal appointed the Public Guardian to make decisions for ZLF as to her accommodation (including authorising others to enforce such decisions) and services. The Tribunal appointed ZLE as ZLF's guardian to make decisions as to her health care and to provide substitute consent to medical and dental treatment. At the same hearing, the Tribunal adjourned the application requesting the appointment of a financial manager. The financial management application was subsequently heard on 13 December 2017 and ZLF's estate was committed to the management of the NSW Trustee and Guardian, with such order to be reviewed after 11 months (in conjunction with the review of the guardianship order).
In 2018 the Public Guardian made the decision to transition ZLF from the family home to supported accommodation.

Decision under Appeal

On 11 September 2018, ZLS, a senior occupational therapist employed by NSW Health and engaged in providing care and treatment for ZLF, made an application to the Tribunal requesting that the guardianship order be reviewed due to concerns that ZLF may seek to travel overseas. In the same week that the application was lodged, ZLF was admitted to a mental health unit as an involuntary patient under the Mental Health Act 2007 (NSW).
The Tribunal held a hearing on 1 November 2018 and dealt with: the end of term review of the guardianship order made on 15 November 2017; a review of the financial management as ordered on 13 December 2017; and the requested review of the guardianship order made by ZLS. Upon completion of the hearing, the Tribunal ordered that ZLF's estate remain managed by the NSW Trustee and Guardian (without further review). The Tribunal also ordered that the guardianship order be renewed with the same functions as the previous order together with the additional function of making decisions as to whether ZLF should travel to any place outside of Australia, as well as to make decisions whether or not her passport should be surrendered to her guardian or some other authority. Unlike the previous guardianship order, however, the Tribunal granted all guardianship authorities solely to the Public Guardian, rather than sharing the role between the Public Guardian and ZLE.
As outlined later, ZLE does not challenge the Tribunal's decision that the guardianship order should have been continued with the functions that were granted, but does challenge the decision to appoint the Public Guardian as sole guardian. ZLE had sought appointment as his daughter's guardian at the hearing the subject of this appeal.
In reaching the decision to appoint the Public Guardian as ZLF's sole guardian, the Tribunal's reasons for decision, which were distributed to the parties on 5 November 2018, provide as follows: 55 The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17(1) of the Act. He/she must: (a) have a personality generally compatible with the personality of the person under guardianship, (b) have no undue conflict of interest (particularly financial) with those of the person and (c) be able and willing to exercise the functions of the order. … 60 After consideration of all the evidence before me I am not satisfied that [ZLE] meets all the necessary requirements to be appointed as guardian for his daughter. While he may have a personality generally compatible with that of his daughter; have no undue conflict of interest with her; and be willing to act as guardian, I am not satisfied that he is able to exercise the functions of the order. I also do not believe that his appointment would result in the policy considerations and principles set out in the Guardianship Act 1987 being given effect. 61 To be an effective guardian may require [ZLE] to make decisions with which his daughter does not agree about many aspects of her life. I (sic) also requires him to encourage her, as far as possible, to live a normal life in the community and to be self-reliant in matters relating to her personal and domestic affairs in accordance with section 4 of the Guardianship Act 1987. The evidence is that historically [ZLE] has been unable to do this with respect to his daughter. 62 It is not disputed that [ZLE] cares deeply for his daughter and that he is very concerned about her safety. However his approach to solving the safety issues surrounding his daughter by taking her home appeared simplistic. He did not demonstrate insight into the complexity of her illness or a proper understanding of the role of a guardian. He was fixated at times during the hearing on the dose and side effects of the medication prescribed for [ZLF] and had to be redirected to issues of relevance. This was consistent with the evidence of professionals at the hearing. I do not believe that [ZLE] is, at this stage, able to objectively consider the expert advice of the range of professionals involved in [ZLF]'s care prior to making decisions that are in her best interest.

Scope and nature of appeals

Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.
Without expressing exhaustively possible questions of law, the Appeal Panel has previously identified the following as questions of law (e.g. Prendergast v Western Murray Irrigation [2014] NSWCATAP 69 at [13]): 1. whether there has been a failure to provide adequate reasons; 2. whether the Tribunal identified the wrong issue or asked the wrong question; 3. whether a wrong principle of law had been applied; 4. whether there was a failure to afford procedural fairness; 5. whether the Tribunal failed to take into account relevant (that is, mandatory) considerations; 6. whether the Tribunal took into account an irrelevant consideration; 7. whether there was no evidence to support a finding of fact; and 8. whether the decision is so unreasonable that no reasonable decision maker would make it.
As to appeal grounds other than on questions of law, in Collins v Urban [2014] NSWCATAP 17, the Appeal Panel stated at [84] that ordinarily it is appropriate to grant leave to appeal only in matters that involve: 1. issues of principle; 2. questions of public importance or matters of administration or policy which might have general application; or 3. an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or 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; 4. a factual error that was unreasonably arrived at and clearly mistaken; or 5. the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Notice of Appeal and Interlocutory matters

ZLE filed a Notice of Appeal with the Tribunal on 22 January 2019 challenging the guardianship order made by the Tribunal on 1 November 2018. There was no challenge to the orders made in relation to financial management of ZLF's estate.
In his Notice of Appeal, ZLE listed that the only parts of the guardianship order he challenged were the functions granted to ZLF's guardian to make decisions as to her healthcare and to make substitute decisions about proposed minor or major medical or dental treatment for ZLF. ZLE sought orders that he be appointed solely as guardian with these authorities whilst the Public Guardian remain appointed with the remaining functions and that the Public Guardian be directed to consult with ZLE when exercising those functions. At the commencement of the hearing before us, ZLE amended his Notice of Appeal, requesting that he also be appointed with the authority to make decisions as to ZLF's travel outside of Australia and utilisation of her passport. There was no opposition to this amendment.
As to his grounds of appeal, ZLE stated as follows in the Notice of Appeal: [ZLF] has been under the Mental Health Unit of [a Sydney] Hospital and when discharged under the Community Mental Health Team since 2010. Her final diagnosis was Schizophrenia and in September 2017 it was amended to Treatment Resistant Schizophrenia. [ZLF] was tried on nearly two dozen medications and injections over the period. I never interfered with the treatment at any stage. Both the Mental Health treating teams at the hospital and the Community Mental Health teams, ganged up against me and put in a request that [ZLF] is managed by the Public Guardian, ever since I made a complaint in May 2018, to the HCCC, regarding the treating Psychiatrist, Dr [ZLY], was playing around with her medication and dosages and even threatened to increase the doses if the recommended dosage was refused by [ZLF]. I have it on CD that Dr.[ZLY] is medicating [ZLF], because of her strong beliefs in Jesus and she talks about Jesus. In the conciliatory meeting with the HCCC and Dr. [ZLY], when asked why did he increase the dose, he said that's because she refuses to have the recommended dose. I am a single parent and Father of [ZLF], with the Order passed on 01/11/2018, there has immediately and already been a lot of detrimental and negative effects from organisations such as the NDIS, where after introducing myself and in less than two minutes I was asked to leave the meeting as I had no authority from the Public Guardian. When I later contacted the Public Guardian, he said he was not advised of this NDIS meeting and also informed me that he did not advise the NDIS to keep me out of the meeting. [Service Providers] are not ready to answer my queries, saying I am not her Public Guardian. The records section of the [a Sydney] Hospital are not ready to liaise with me saying I am not her Public Guardian. The applicant and her support network consisting of teams from the Mental Health Unit of [a Sydney] Hospital and [service provider], mentioned that I being [ZLF]'s Guardian for Medical/Dental had not taken her for any treatment. [ZLF] was in and out of hospitals often, on an average twice a week. I managed to take her to see the doctor on two occasions. Another two points, the three teams were harping on, I mentioned and informed both the Mental Health teams that on two occasions, when I was in deep sleep in the middle of the night, [ZLF] was very unwell and came and lay down on my bed. On waking up I told [ZLF], why did you come and sleep on my bed, and not to sleep on my bed again. The [service provider] and the Hospital staff also said that they observed [ZLF] masturbating when talking to me on the phone. I would like to bring to your attention, that numerous strong and high doses of medication and change of medications, [ZLF] landed up in hospital because of severe bleeding from her vagina. I noticed [ZLF]'s dresses stained both in front and back, as due to severe itching she would vigorously scratch her vagina and rectum thus staining her dress, this was even before being moving to the to the Supported Accommodation. These thoughts from [ZLX] and [ZLK] of Challenge Community Services and ZLZ], Social Worker, [a Sydney] Hospital, only goes to show the upbringing, mentality and culture of these women. I have discussed this with elderly ladies, who remarked these women have gone to the extremes and exhibited their culture. I am a single parent, was a carer for six months for my late wife who succumbed to [Cancer] in March 2005 and gave up my job in the NSW Public Service, over four years ago to take care of my daughter who developed a severe mental illness after her mother passing away. I am mentally, physically fit. For all the above reasons I would like to continue to being the Guardian for [ZLF]'s Medical and Dental Care.
ZLE's Notice of Appeal asserted that he was appealing only on questions of law, that is, he was not seeking leave to appeal on other grounds.
At a directions hearing on 25 February 2019 the Tribunal: gave leave to all parties to be legally represented if they wish to do so; extended the time to appeal the decision to 22 January 2019; and amongst other directions, directed that any party wishing to rely on what happened at the hearing the subject of the Appeal provide to the Tribunal a copy of the sound recording; and listed the appeal for hearing in the week commencing 29 April 2019. We note that no party was legally represented at the hearing before us, that we were not provided with the sound recording of the first instance hearing by any party, and the appeal was listed for hearing on 3 May 2019.
On 29 April 2019 ZLE requested that the hearing date of 3 May 2019 be rescheduled to another date as he had managed to obtain an urgent medical appointment for his son on the allocated date of 3 May 2019. There was no opposition to ZLE's request from other parties. Accordingly the Tribunal relisted the hearing for 8 July 2019.
On the morning of 8 July 2019 ZLE advised the Tribunal's registry that he was unwell and that hearing could not proceed. The hearing did proceed as scheduled and ZLE participated by telephone from the office of his advocate.

Grounds of appeal

Whilst he had been granted leave to be legally represented in the Appeal, ZLE was not represented in the hearing before us. He did however have the support of an advocate.
It was appropriate for us to consider the grounds of appeal in the context that ZLE was self-represented, and therefore, it may have been difficult for him to clearly articulate those grounds and distinguish between questions of law and errors of fact in relation to which leave to appeal is required.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) of the NCAT Act provides that that Tribunal 'may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice'.
In addition to the statement provided by ZLE outlining his grounds of appeal as reproduced at [19] above, ZLE provided a 5-page submission dated 28 March 2019. ZLE otherwise provided little to us in support of his appeal. He did not provide us with a sound recording of the hearing at first instance. What documents he did provide us were predominantly copies of email interactions between himself and ZLF's care providers and all had taken place after the hearing the subject of the Appeal.
It was difficult for us to discern from the documentation before us the precise nature of ZLE's arguments and accordingly we spent some time in the early stages of the hearing seeking to obtain clarity as to how ZLE believed the Tribunal had erred. ZLE made it clear to us that his main concerns related to what he perceived as ramifications flowing from the order made, specifically: he had been excluded from discussions regarding ZLF's NDIS funding since the order under appeal was made; and those treating ZLF would not provide him with information as he was not the appointed guardian. We should record that ZLE subsequently informed us that his relationship with ZLF's treating team had improved significantly in recent times and that he understood that his exclusion from an NDIS related meeting had been a misunderstanding on the part of NDIA representatives and not due to the operation of the guardianship order.
We explained to ZLE that it appeared to us that his grievances did not amount to grounds of appeal, in that they were focussed on possible ramifications of the order the Tribunal made rather than submitting that the Tribunal made an error in making the orders it did based on the evidence and submissions before it. ZLE told us that he wished to proceed with the appeal and submitted that the Tribunal had made an error in not appointing him as his daughter's guardian for at least some of the functions of guardianship. It was his position that evidence the Tribunal received that ZLF had on occasion slept in the same bed as him, and that ZLF had been seen to masturbate whilst on telephone calls with him, had been misinterpreted and caused the Tribunal to appoint the Public Guardian solely. On this point ZLE provided a quote relating to the representative of the Public Guardian and otherwise stated as follows in his submissions: Quote: "The Public Guardian's view is that having his adult daughter sleep with him makes [ZLE] unsuitable to be appointed as [ZLF]'s Guardian." It was I who informed the staff of the Mental Health Teams, that on two occasions in the past, when I was fast asleep, in the dead of night, [ZLF] came up and slept at the corner of my bed, being in deep sleep, I couldn't get up to ask her to leave. Next morning on awaking I said to [ZLF], I scolded her, why did you come and sleep on my bed and that she must sleep in her own bed. This is the reason the Guardianship Division has been taken away the Guardian for Medical and Dental from me and passed on to the Public Guardian.
Based on the grounds of appeal provided by ZLE in his notice of appeal, and the submissions he provided in writing and made to us at the hearing, we could only identify one possible ground of appeal: that the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken in that it concluded that ZLE was not able to perform the role as his daughter's guardian in compliance with the principles enunciated in s 4 of the Act and such conclusion was based upon a misunderstanding or misinterpretation of the evidence as to ZLF sleeping on occasion on the same bed as ZLE and masturbating whilst on the telephone to ZLE. This ground of appeal does not involve a question of law and therefore would require leave to proceed.

Replies to the Appeal

ZLS, a senior occupational therapist employed by NSW Health and engaged in providing care and treatment for ZLF, was a party to the Appeal by virtue of the fact that she made an application to the Tribunal requesting that the guardianship order be reviewed and the orders which flowed from that request form part of the orders the subject of ZLE's appeal.
ZLS filed a reply to the appeal on 16 April 2019 opposing the appeal. In submissions lodged with her reply, ZLS stated: [ZLE] has continued to show limited understanding of [ZLF]'s complex mental health needs and appropriate treatment for this. Due to this, we support the application for the Public Guardian to remain for the medical / dental and health care orders.
Whilst a party to the appeal, the Public Guardian did not seek to put a formal position in reply to ZLE's appeal grounds.

Consideration of the Ground of Appeal

Once having decided to exercise the discretion the Tribunal has to renew a guardianship order, the Tribunal must determine whether to appoint a person who seeks appointment to the role, or alternatively, appoint the Public Guardian. As was outlined in the reasons for the decision at first instance at [55], prior to appointing a person seeking appointment the Tribunal must be satisfied that the person satisfies the criteria provided in s 17(1) of the Act. In reviewing the guardianship order for ZLF, the Tribunal concluded that ZLE did not satisfy the criteria as it made a finding that he was not "able" to perform the role as ZLF's guardian in accordance with the principles in s 4 of the Act (see [13] above).
As previously summarised, we understood ZLE's ground of appeal to be that the finding by the Tribunal that he was not able to perform the role of guardian was a factual error that was unreasonably arrived at and clearly mistaken as such finding was based upon a misunderstanding or misinterpretation of the evidence as to ZLF sleeping on occasion on the same bed as ZLE and masturbating whilst on the telephone to ZLE.
The Tribunal's reasons for its orders of 1 November 2019 make it clear at [60] to [62] that the conclusion reached that ZLE was not currently able to perform the role as his daughter's guardian was based on evidence that ZLE: had on occasion been shown to be unable to make decisions that ZLF disagreed with; failed to demonstrate insight into the complexity of ZLF's illness or a proper understanding of the role of a guardian; and was unable to objectively consider expert advice of professionals involved in ZLF's care to make decisions in her best interests. The reasons, as they relate to the assessment of ZLE's ability to perform the role of guardian, make no mention of any incidents relating to where ZLF has slept or her having engaged in masturbation.
The Tribunal's reasons do make mention of these matters as follows: 26 In his report [representative of the Public Guardian] notes that the decision to transition [ZLF] from her father's home to a group home was supported by [ZLE]. [ZLF] has remained ambivalent about living apart from her father and her desire for contact: … has been challenging for [ZLF] in trying to gain the separation he first sought when seeking for his daughter to live elsewhere. [The representative of the Public Guardian] notes that there are concerns about the appropriateness of [ZLF] sharing her father's bed and the risks to both individuals of this behaviour. 33 [ZLK] is a supervisor at [ZLF's residential facility]. She gave evidence that there are concerns about the appropriateness of the relationship between [ZLF] and her father. She noted that in addition to reports of them sharing a bed, [ZLF] has been observed several times on the phone to her father naked and masturbating. [ZLK] stated that this behaviour has also been observed while [ZLF] has been in hospital. 35 [ZLE] acknowledged that on occasions his daughter has slept in the same bed as him, but stated that he was not aware of her masturbating while on the phone to him. [ZLE] stated that 'it is not true'.
However, this evidence is recounted in relation to the issue as to whether the Tribunal should have exercised the discretion to renew the guardianship order for ZLF, not in relation to who should be appointed as her guardian which we understood to be the issue under challenge in the appeal. Even within this context, it is not clear that this evidence played any meaningful role in leading the Tribunal to decide to renew the guardianship order.
In any event, we are not satisfied that either of these evidentiary matters played any substantial role in leading the Tribunal to make the decision it did to not appoint ZLE as guardian for his daughter. The Tribunal's reasons make it plain that these were not the matters upon which the Tribunal relied in determining that ZLE did not meet the criteria to be appointed as guardian for his daughter.
Accordingly, we are not satisfied that the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken, in determining that ZLE should not be appointed as his daughter's guardian. We are not satisfied that this ground of appeal merits a grant of leave.

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

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. 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: 18 July 2019

At a glance

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