ZZT v Public Guardian

Disclosure of names of parties to proceedings

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: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), ss 65(1). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: NCAT Act, s 65(3). 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 non-statutory parties to the appeal: 1. "ZZT", the Mother 2. "ZZU", Arwyn 3. "ZZV", the Communities and Justice caseworker who applied to NCAT for guardianship and financial management orders in respect of Arwyn
3. For ease of reading, in these reasons we will not refer to these individuals by their assigned pseudonyms but by the following descriptors: 1. "ZZT", the Mother 2. "ZZU", Arwyn 3. "ZZV", "the Caseworker"
4. "Arwyn" is the pseudonym given to ZZU by the NSW Supreme Court and used in multiple proceedings [2] . To minimise confusion, we will follow that practice and will refer to ZZU as "Arwyn".

Participation in the appeal

1. The Mother, the Public Guardian and Arwyn were the only parties to participate in the hearing of the appeal. The Public Guardian, the Father and the Caseworker each urged the Appeal Panel to refuse the Mother leave to appeal the Joinder decision.
2. Arwyn participated in the appeal by AVL and was represented by a separate representative, solicitor, Mr Paul Mathers.

Background to the Joinder Decision

1. The Caseworker lodged applications with NCAT requesting guardianship orders (on 13 April 2022) and financial management orders (18 May 2022) in respect of Arwyn (together, "the Application"). The Caseworker urged the Tribunal to appoint the Public Guardian and the NSWTG respectively as Arwyn's guardian and manager claiming that there are "no family members or significant others who have been identified as appropriate to make decisions in [Arwyn's] best interests".
2. On 8 June 2022, each parent applied to NCAT requesting to be joined as a party to the proceedings commenced by the Applications (the Guardianship proceedings). At a directions hearing on 9 June 2022, the Tribunal (Senior Member Booby) refused those applications (the Joinder Decision) and made a series of orders about the conduct of the proceedings. The Caseworker, her legal representatives, the separate representative appointed for Arwyn, and the Father attended the directions hearing. The Mother did not attend.
3. On 19 July 2022, the Mother requested NCAT to set aside the Joinder decision. The Tribunal (Principal Member Fougere) refused that request, reasoning that as the Joinder decision was an interlocutory decision and "did not determine proceedings" the power to set aside a decision conferred by cl 9 of the Civil and Administrative Tribunal Regulation 2013 (NSW) could not be exercised.

Principles governing the grant of leave

1. The Joinder decision is an "internally appealable decision": NCAT Act, s 32(4). Because it is an interlocutory decision, the Mother requires leave to appeal from the Joinder decision: NCAT Act, s 80(2)(a). As the person who applied to be joined to the guardianship proceedings, the Mother is entitled to apply to bring an appeal against the Joinder decision: Civil and Administrative Tribunal Rules 2014 (NSW), r 27(a) and NCAT Act, s 80(1).
2. In Collins v Urban [2014] NSWCATAP 17 (Collins) at [84], an Appeal Panel of NCAT stated that there must be a "sound basis" for granting leave to appeal under s 80(2)(b) of the NCAT Act. The Appeal Panel said that an appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact. Ordinarily, it will only be appropriate to grant leave to appeal in matters that involve: "(a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) 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; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) 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" (Citations omitted)
3. While the Appeal Panel was referring to the exercise of the discretion to grant leave to appeal from a decision other than an interlocutory decision (NCAT Act, s 80(2)(b)), in our view those principles apply equally to the exercise of the discretion to grant leave to appeal from an interlocutory decision (NCAT Act, s 80(2)(a)). Indeed, at 84, the Appeal Panel expressly referred to an application for leave to appeal relating to a "question of practice and procedure", stating that such applications are to be approached with "the restraint applied by an appellate court when reviewing such decisions".

Power to join a person as party to proceedings

1. Contained in Part 4 (Practice and procedure), s 44(1) of the NCAT Act provides: 44 Parties and intervention (1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party. (2) The Tribunal may order that a person be removed as a party to proceedings if the Tribunal considers that the person has - (a) been improperly or unnecessarily joined, or (b) ceased to be a proper or necessary party. ...
2. Clause 7 of Sch 6 (the Division Schedule for proceedings allocated to the Guardianship Division) to the NCAT Act states: 7 Tribunal may join parties (1) The Tribunal may make an order under section 44(1) of this Act joining a person as a party to proceedings for the exercise of a Division function if, in the opinion of the Tribunal, the person should be a party to the proceedings (whether because of the person's concern for the welfare of the person the subject of the proceedings or for any other reason). ...
3. Where the relevant Division Schedule makes provision for the practice and procedure to be followed in connection with certain proceedings allocated to the Division for determination, the provisions of that Schedule prevail to the extent of any inconsistency with the provisions of Part 4 of the NCAT Act: NCAT Act, s 17(3). While different, in our view, the two provisions are not inconsistent. Each gives the Tribunal a broad discretion to join a person to proceedings. Clause 7 of Sch 6 to the NCAT Act identifies the joinder applicant's "concern for the welfare of the person the subject of the proceedings" as a ground which might justify the exercise of the discretion to join a person to proceedings. In contrast, s 44 of the NCAT Act does not identify any grounds which might warrant the exercise of that discretion.
4. In Commissioner of Police, NSW Police Force v Fine [2014] NSWCA 327, the Court of Appeal (Bathurst CJ, Beazley P and Ward JA) considered the operation of s 44 of the NCAT Act. At [41], the Court said the power to join a party conferred by s 44(1) should be read in conformity with s 44(2) which provides for the removal of a party if "the person has been improperly or unnecessarily joined or ceased to be a proper or necessary party": at [38]. The Court stated that a person who is a "proper or necessary party" ought to be joined to the proceedings: at [38].

The appeal

1. The Mother submits that the following considerations, separately and in combination, support the exercise of the discretion to grant leave to appeal the Joinder decision: 1. The Tribunal's failure to provide written reasons for the Joinder decision 2. The Tribunal's decision to proceed to determine the Mother's application to be joined to the Guardianship proceedings in her absence 3. The Tribunal's purported lack of power to determine the Application in circumstances where: 1. Arwyn was the subject of orders made by the Children's Court and the Supreme Court 2. the Caseworker allegedly lacked standing to bring the Application. 1. The Tribunal's failure to recognise that, as his mother, she was Arwyn's guardian and therefore a party to the guardianship proceedings.

Ground 1: Failure to provide written reasons for the Joinder decision

1. The Tribunal did not provide the Mother, or any other party, with written reasons for the Joinder decision. It is unknown whether the Tribunal gave oral reasons for that decision. The parties to the appeal did not provide us with a transcript or sound recording of the directions hearing where that decision was made.
2. The Mother claims that she requested the Tribunal to provide written reasons for the Joinder decision.

Obligation to give reasons for decision

1. Clause 11(a) of Sch 6 (Guardianship Division) to the NCAT Act requires the Tribunal "to give each party to proceedings for the exercise of a Division function a written statement of reasons for any decision it makes in the proceedings". That requirement does not extend to all decisions made by the Tribunal and expressly excludes interlocutory decisions: NCAT Act, cl 11(2)(c) of Sch 6.
2. However, unless the Tribunal has already done so, if requested by a party to do so, the Tribunal is required to provide a written statement of reasons for its decision within 28 days of that party being given notice of the decision: NCAT Act, s 62(2). The Tribunal must provide that statement within 28 days after the request is made: NCAT Act, s 62(2).
3. As we explain below, the Mother was not a party to the proceedings either in respect of the application for guardianship orders or the application for financial management orders in respect of Arwyn. However, as the person who applied for a decision that she be joined to those proceedings, she was a party to the proceedings to determine that application: Civil and Administrative Tribunal Rules, r 27(a).

Did the Mother request a statement of reasons?

1. The Mother claims that she emailed the Tribunal requesting reasons for the Joinder decision shortly after being notified of that decision. At the hearing of the appeal, we informed the parties that we had inspected the Tribunal's file and found no record of that request. At that hearing, we made directions inviting the Mother to provide us with a copy of the email claimed to have been sent to the Tribunal requesting a statement of reasons for the Joinder decision.
2. In answer to that direction, the Mother filed a copy of an email she had received from a registrar of NCAT (the Registrar) on 22 June 2022. That email attached a copy of the orders made by the Tribunal on 9 June 2022 which included the Joinder decision. In that email, referring to "your email sent on 17 June 2022", the Registrar stated that as "the applicant to the request to be joined" the Mother was entitled to appeal the Joinder decision and referred the Mother to information on NCAT's website about her appeal rights.
3. The Mother did not provide us with a copy of the email sent to NCAT on 17 June 2022 that she apparently claims contained a request for a statement of reasons for the Joinder decision. The only email on the Tribunal file received from the Mother on 17 June 2022 was an email to the NSW Attorney General copied to NCAT. In that email, the Mother requested the NSW Attorney General: 1. to sack the Tribunal member who conducted the 9 June 2022 directions hearing 2. to prosecute the barrister who represented the Caseworker in the 9 June 2022 directions hearing for making "false and misleading statements to guardianship tribunal, as a contempt of court" 3. to dismiss the Application with costs, alleging that that the Department of Families and Communities "assaulted [Arwyn] continuously with illegal medical treatment for hunger strike … and are criminally negligent" 4. to return Arwyn to her care.
4. The 17 June 2022 email does not contain a request for reasons for the Joinder Decision.
5. The Mother sent several emails to NCAT between 9 June 2022 and the date she lodged the notice of appeal. None contain a request for a statement of reasons for the Joinder decision.

Consideration

1. The Mother has failed to establish that she requested the Tribunal to provide a statement of reasons for the Joinder decision. In the absence of such request, the Tribunal was not obliged to provide a statement of reasons for that decision. The premise on which this ground rests is not established.

Ground 2: Determining the Joinder application in the absence of the Mother

1. The Mother contends that she was denied procedural fairness because her application to be joined as a party to the guardianship proceedings was determined in her absence.
2. The Public Guardian disagrees and points out that the Mother was notified of, and given the opportunity to attend, the hearing at which that application was decided.

Background to 9 June 2022 directions hearing

1. To put the submissions made by the parties in context, it is necessary to detail the procedural background to the 9 June 2022 directions hearing.
2. On 31 May 2022, the Mother emailed NCAT stating that she opposed guardianship and financial management orders being made in respect of Arwyn. The Mother asked the Tribunal to dismiss the Application or, in the alternative, to adjourn any directions hearings until the Court of Appeal had determined her appeal from the decision of Sackar J to dismiss her appeal against the decision made by the Children's Court on 3 April 2020: GR v The Department of Communities & Justice [2021] NSWSC 1081 (the Sackar J Decision). In that decision, the then President of the Children's Court (Johnstone ChCP) made orders allocating parental responsibility for Arwyn to the Minister until he attains 18 years of age (the Children's Court Decision). On 18 August 2022, the Court of Appeal dismissed the appeal brought by the Mother from Sackar J's Decision: GR v Secretary, Department of Communities and Justice [2022] NSWCA 153 (GR). [3]
3. In an email in reply, also sent on 31 May 2022, the Registrar notified the Mother of the directions hearing listed on 9 June 2022. In that email, the Registrar advised that the Mother was "not automatically a legal party to these proceedings" and pointed out that the Mother was entitled to apply to the Tribunal to be joined as a party and attached a copy of an application form "should you wish to proceed" to apply to be joined as a party. The Registrar stated that such application "can be heard at the Directions listed on 9 June 2022". Attached to that email was a notice of listing stating that the directions hearing would be held on 9 June 2022 at 16:00. That notice carried the statement: "Directions can be made even if you do not attend".
4. In an email sent to NCAT on 8 June 2022 at 11:08, the Mother requested a copy of the form to request to be joined as a party in WORD format. The Mother repeated her request for the directions hearing to be adjourned until the Court of Appeal had determined her appeal from the Sackar J Decision. In addition, the Mother stated that she was unable to attend the directions hearing because she would be in the "Children's' Court for my s90 rescission application of the care order of FACS".
5. In an email sent to NCAT on 8 June 2022 at 12:29, the Mother attached an "unsworn request to be joined as party" and repeated her request that all directions be adjourned until the Court of Appeal determined her appeal from the Sackar J Decision. In an email sent on 8 June 2022 at 15:15, the Registrar advised the Mother that the Directions hearing listed for the next day "would go ahead as planned at this stage" and that her request to be joined as a party had been provided to the Member conducting that hearing. On 8 June at 15:35, the Mother requested "instructions to appear by telephone or AVL". The following day at 9:01, the Tribunal asked the Mother to provide a contact telephone number.
6. In the hour before the directions hearing, the Mother sent two further emails to the Registrar repeating her request that the Tribunal adjourn all directions hearings until the Court of Appeal had determined her appeal. In the first of those emails sent at 15:11, referring to a direction said to have been given by the Court of Appeal to the Crown Solicitor's Office to provide "a full medical update" on Arwyn, the Mother stated: "You are put on notice to not proceed with any hearings in NCAT until Court of Appeal has determined the appeal and NCAT has joined all parties including myself".
7. In the second email sent at 15:19, the Mother said that she was on a train and would not be contactable by telephone.
8. At 17:00 on 9 June 2022, the Mother sent the Registrar a third email repeating her request that the directions hearing be adjourned. In that email, the Mother stated that Arwyn had been given anti-psychotic medication without his consent and each dose of that medication "carries risk of permanent neurological injuries". In support, the Mother attached a report, dated 15 July 2020, prepared by psychiatrist, Professor Jon Juriedini.

Consideration

1. The NCAT Act required the Tribunal to observe the rules of natural justice (procedural fairness): NCAT Act, s 38(2). In addition, that Act imposed several specific obligations on the Tribunal, including that it take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings": NCAT Act, s 38(5).
2. In the appeal, the Mother offered several explanations for her failure to attend the 9 June 2022 directions hearing (the directions hearing) including that she would be attending proceedings before the Children's Court and was travelling home by train from those proceedings.
3. In evaluating whether, as claimed, the Tribunal failed to ensure that the Mother had a reasonable opportunity to be heard, we considered the following matters to be significant: 1. the Mother was on notice from 31 May 2022, nine days before the directions hearing, that if she decided to apply to be joined to the guardianship proceedings, her application may be determined at that hearing 2. the Mother was on notice from 31 May 2022 that any application to be joined may be determined in her absence 3. the Tribunal was provided with the Mother's joinder request which set out the reasons in support of that request 4. the Mother failed to provide an adequate explanation for her failure to attend the directions hearings 5. there is no evidence to suggest, and nor is it asserted, that because of disability, illness, disadvantage or some other factor, the Mother was unable to participate in the directions hearings or to understand that her application to be joined would be decided at that hearing. The Mother is tertiary educated and has represented herself in numerous legal proceedings in the Supreme Court and the Children's Court.
4. Taken in combination, these factors do not support a finding that the Tribunal failed to comply with the obligation imposed by s 38(5) of the NCAT Act.
5. Section 38(5) of the NCAT Act required the Tribunal to ensure that the Mother had a reasonable opportunity to be heard or have her submissions considered in the proceedings. The Tribunal was not required to ensure the Mother was given every opportunity to be heard or have her submissions considered. Nor was the Tribunal required to ensure that the Mother avail herself of that opportunity.
6. The contention that the Tribunal failed to afford the Mother procedural fairness by determining the joinder application in her absence is rejected.

Ground 3: The Tribunal lacked power to determine the Application

1. The Mother contends that the Tribunal lacked power to determine the Application because: 1. s 15 of the Guardianship Act prevented the Tribunal from making a guardianship order in respect of Arwyn without the consent of the Children's Court and the Supreme Court 2. the Caseworker was not entitled to make the Application.

Legislative framework

1. Contained in Division 3 (Guardianship orders) of Part 3 (Guardianship orders) of the Guardianship Act, s 14 gives the Tribunal discretion to make a guardianship order in respect of a person if satisfied that that person is "a person in need of a guardian". [4]
2. Section 15 the Guardianship Act restricts the Tribunal's power to make guardianship orders, relevantly, as follows: 15 Restrictions on Tribunal's power to make guardianship orders (1) A guardianship order shall not be made in respect of a person - (a) if the person is under the age of 16 years, or (b) in the case of a person who is the subject of an order made by the Supreme Court, in the exercise of its jurisdiction with respect to the guardianship of persons - unless the Supreme Court consents to the making of the order, or (c) in the case of a person who is the subject of an order made by the Children's Court in the exercise of its jurisdiction under section 79A of the Children and Young Persons (Care and Protection) Act 1998 - unless the Children's Court consents to the making of the order.

Did the Tribunal require the consent of the Supreme Court to make a guardianship order in respect of Arwyn?

1. The Mother contends that by s 15(1)(b) of the Guardianship Act the Tribunal lacked power to make a guardianship order because in the intervening period between the Caseworker lodging the application for a guardianship order (18 May 2022) and the Tribunal making that order (20 July 2022), she had applied to the Supreme Court for guardianship orders in respect of Arwyn.
2. The Mother claims that she applied for those orders in the "Further Amended Draft Notice of Appeal", and a Summons filed in the Supreme Court on 24 May and 20 June 2022 respectively. For current purposes we will assume but not decide that some of the orders sought in the Further Amended Draft Notice of Appeal and the Summons could be characterised as falling within the scope of s 15(1)(b) of the Guardianship Act, that is, an order made by the Supreme Court in "the exercise of its jurisdiction with respect to the guardianship of persons".
3. The argument advanced by the Mother mistakenly assumes that the restriction imposed by s 15(1)(b) of the Guardianship Act is enlivened where the Supreme Court has been requested to make an order in the exercise of its jurisdiction with respect to the guardianship of persons. The text of s 15(1)(b) of the Guardianship Act makes clear that the restriction is enlivened where the Supreme Court has made a relevant order. Neither the context nor purpose of s 15(1)(b) of the Guardianship Act supports the broad interpretation of that provision favoured by the Mother. On 20 July 2020, when the Tribunal made the guardianship order, neither the Supreme Court nor the Court of Appeal had made orders in respect of Arwyn "in the exercise of its jurisdiction with respect to the guardianship of persons". Neither the orders made by Sackar J on 27 August 2021, nor those made by the Court of Appeal on 18 August 2022, could be so described. The orders made by Sackar J dismissed the appeal brought by the Mother against the orders made by the Children's Court. The subsequent orders made by the Court of Appeal refused leave to appeal from Sackar J's decision.
4. The Tribunal did not require consent of the Supreme Court to make a guardianship order in respect of Arwyn.

Did the Tribunal require the consent of the Children's Court to make a guardianship order in respect of Arwyn?

1. The restriction in s 15(1)(c) of the Guardianship Act is enlivened where the person the subject of an application to NCAT for a guardianship order is the subject of an order made by the Children's Court in the exercise of its jurisdiction under s 79A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (Care and Protection Act).
2. Since August 2018, the Children's Court made a series of orders in respect of Arwyn. As the Public Guardian points out, the Children's Court has never exercised the power under s 79A of the Care and Protection Act to make orders in respect of Arwyn. The interim orders made by Children's Court on 5 July 2018, allocating parental responsibility for medical issues to the Minister, placing Arwyn under the supervision of the Secretary until further orders and prohibiting the Mother from administering medication to him, were made under s 69 of the Care and Protection Act. The orders made on 3 April 2020, allocating parental responsibility for Arwyn to the Minister until he attains 18 years of age, were made under s 79(1)(b) of the Care and Protection Act.
3. Orders made under s 79A of the Care and Protection Act are different in form and substance to orders made under ss 69 and 79(1)(b) of that Act. Section 79A permits the Children's Court to make a guardianship order allocating to a suitable person all aspects of parental responsibility for a young person. On the other hand, s 79(1)(b) of the Care and Protection Act permits the Children's Court to make an order, other than a guardianship order, allocating parental responsibility for a young person solely to the Minister until the young person reaches 18 years of age. Section 69 of the Care and Protection Act permits the Children's Court to make interim care orders in relation to a young person after a "care application"5 is made and before that application is finally determined.
4. The contention that s 15(1)(c) of the Guardianship Act operated to prevent the Tribunal from making a guardianship order is rejected.

Was the Caseworker entitled to make the Application?

1. The Mother asserts that the Caseworker was not entitled to make the Application because: 1. the Caseworker failed to seek leave of the Children's Court and the Supreme Court as required by s 15 of the Guardianship Act 2. the Caseworker was "persona non grata" and did not hold "legal or financial guardianship" for Arwyn 3. in making the application the Caseworker "acted without instructions of the Minister" 4. the Caseworker had been sacked from her position with the Department and was "facing criminal charges for assault, perjury, contempt of court, false imprisonment, child abuse …"
2. Section 9(1) of the Guardianship Act permits an application for a guardianship order in respect of a person to be made to the Tribunal by the person the subject of that application, the Public Guardian or "any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person".
3. The Tribunal addressed the Caseworker's standing to make the Application in Reasons for the Substantive Decision at [46]-[51] (the Reasons): "46 Under s 9 of the Act an application for a guardianship order in respect of a person may be made by the person, the Public Guardian or 'any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person''. 47 The mother suggested that [the Caseworker] made deliberately false statements to courts and other entities, was not trustworthy and had a conflict of interest in bringing the present proceedings. 48 Contrary to the mother's contentions, we could see no conflict of interest or inappropriate motivation in a casework manager with Metro Intensive Support Services, seeking, in her professional capacity, orders from the Tribunal consistent with a child's imminent transition out of the care of the Minister on attaining the age of 18. Metro has worked with [Arwyn] since April 2020. We were satisfied that the applications were motivated by an appropriate concern to ensure that [Arwyn's] ongoing needs, welfare and interests are addressed as he transitions to adulthood out of the parental responsibility of the Minister. 49 The evidence before us did not support the mother's other allegations in relation to [the Caseworker]. We noted that, in contrast to the mother's assertions that [the Caseworker] has been untruthful to courts, in GR at [821] Sackar J accepted [the Caseworker's] evidence as truthful. 50 Further, contrary to what appeared to be the mother's understanding, [the Caseworker] was not seeking that she should be appointed guardian or financial manager for [Arwyn]. She proposed the appointment of independent entities: the Public Guardian and the NSW Trustee and Guardian. There was no evidence, and we did not accept, that the applications were lodged to advance [the Caseworker's] interests, rather than those of [Arwyn]. 51 We were satisfied that under s 9(1)(d) of the Act [the Caseworker] had standing to make the guardianship application as a person who has a genuine concern for the welfare of [Arwyn]."

Consideration

1. Dealing in turn with the arguments advanced by the Mother set out at [62] above: 1. As discussed at [51]-[61] above, the Tribunal did not require the consent of the Children's Court and/or the Supreme Court to exercise its power to make a guardianship order in respect of Arwyn. 2. The question of whether the Caseworker was entitled to apply to NCAT for a guardianship order in respect of Arwyn did not turn on whether the Minister did or did not hold "legal or financial guardianship" for Arwyn. Rather, the Caseworker was entitled to apply to NCAT for a guardianship order if she satisfied the Tribunal that she "has a genuine concern for the welfare" of Arwyn: Guardianship Act, s 9 (1)(d). 3. There is no evidence to support the Mother's claim that in making the Application the Caseworker "acted without instructions of the Minister". 4. Nor is there any evidence to support the Mother's claim that at the time the Caseworker made the Application she had been sacked from her position with Communities and Justice, and later, was "facing criminal charges for assault, perjury, contempt of court, false imprisonment, child abuse …". In support of the claim that the Caseworker had been found guilty of contempt, the Mother relies of the judgement of Brereton JA in GR at [4],[138]. At [4] Brereton JA expressed concern that at times there has been "far too ready a disposition to consent to extreme medical treatments for [Arwyn], and to confine him, without the authority of the Court, and to exclude his parents, in particular [the Mother], from contact with him". However, Brereton JA "eschew[ed] any suggestion that there has been deliberate impropriety on the part of Community Services". Neither those comments nor any other part of the judgement could be read to suggest that Brereton JA found the Caseworker "guilty of contempt".

Ground 4: Tribunal's failure to recognise that the Mother was Arwyn's guardian and therefore party to the guardianship proceedings

1. The Mother contends that the Tribunal erred in not treating her as a party to the guardianship proceedings in circumstances where, as his parent, she was his "legal guardian".
2. Section 3F(1) of the Guardianship Act prescribes the parties to proceedings commenced under that Act. Sections 3F(2) and 3F(5) state that the parties to proceedings in respect of an application for guardianship and financial management orders are: 3F Persons who are "parties" to proceedings under this Act (1) A person is a party to proceedings before the Tribunal under this Act as provided by this section. (2) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a guardianship order under this Act - (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (d1) the enduring guardian, if any, of the person to whom the application relates, (e) the Public Guardian, (f) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. … (5) Each of the following persons is a party to any proceedings before the Tribunal in respect of an application for a financial management order under this Act - (a) the applicant, (b) the person to whom the application relates, (c) the spouse, if any, of the person to whom the application relates, if the relationship between the person and the spouse is close and continuing, (d) the person, if any, who has care of the person to whom the application relates, (e) the person, if any, appointed attorney by the person to whom the application relates under a power of attorney that is in force, (f) the NSW Trustee, (g) any person whom the Tribunal has joined as a party under section 44 of the Civil and Administrative Tribunal Act 2013. (Emphasis added)
3. Even if it were accepted, as the Mother contends, that, following the orders made by the Children's Court on 3 April 2020, she remained Arwyn's "legal guardian", this would not automatically make her a party to the guardianship proceedings. This is because a non-carer parent or guardian is not deemed to be a party to proceedings commenced under the Guardianship Act, even where the person the subject of an application for orders under that Act is under 18 years of age.

Should leave to appeal the Joinder decision be granted?

1. The Mother has failed to establish any of the grounds she contends support her application seeking leave to appeal the Joinder decision.
2. Without a statement of reasons, it is not possible to discern the reason the Tribunal decided to refuse to join the Mother as party to the guardianship proceedings. Nonetheless, the available material does not support the conclusion that in exercising the discretion to refuse to join the Mother to the guardianship proceedings, the Tribunal committed an error.
3. Nor does the available material support a conclusion that any of the factors listed in Collins, which might support leave to appeal being given to the Mother, apply in this case. While of great importance to the Mother, the decision under appeal raises no issue of general principle or importance and is confined to the specific facts of the case. Nor, in our view, could it be said that the decision gave rise to an "injustice which is reasonably clear". In reaching that conclusion we consider it significant, as pointed out by the Public Guardian, that while the not joined as a party to the guardianship proceedings, nonetheless the Tribunal permitted the Mother to fully participate in the hearing of the Application, and she availed herself of to give evidence and to make submissions.
4. Leave to appeal is refused.
5. Given our decision, it is unnecessary to decide whether to exercise the discretion to permit the Mother leave to appeal out of time.

Appeal from the Substantive Decision

1. The Mother is not a party to the guardianship proceedings. Therefore, she is not entitled to bring an appeal from the Substantive decision. The appeal proceedings brought by the Mother are misconceived and dismissed under s 55(1)(b) of the NCAT Act.

Application for stay of proceedings

1. In an application filed on 16 December 2022, the Mother requested the Appeal Panel to exercise the discretion to make orders under s 43 of the NCAT Act "staying or otherwise affecting the operation" of the Substantive Decision. Specifically, the Mother requested that the Substantive Decision be varied by removing the Public Guardian as guardian and appointing Arwyn's uncle and herself as joint guardians. This was the third application made by the Mother for orders staying the operation of the Substantive Decision: ZZT v Public Guardian [2022] NSWCATAP 372 at [13].
2. The primary reason we refused to grant the order sought by the Mother was because the Mother was not entitled to appeal from or to seek a stay of the operation of the Substantive Decision as she was not a party to that decision.
3. But even if the Mother was entitled to seek orders under s 43 of the NCAT Act in respect of the Substantive Decision, it would not be appropriate to make those orders. To make the orders sought would, in our view, require us to be satisfied that the Mother and the uncle had satisfied the pre-conditions for appointment, stipulated by s 17 of the Guardianship Act, in particular, that they were able to discharge the functions conferred by the guardianship order. At [122]-[128] of the Decision, the Tribunal gave detailed and cogent reasons for its finding that the Mother failed to satisfy those requirements. The Mother's challenge to those findings in this appeal did not persuade us that it would be appropriate to appoint the Mother as guardian even for a short period.
4. The available material did not support a finding that the uncle was willing to act as sole guardian for Arwyn.
5. For these reasons if we had power to make the orders sought by the Mother, we would decline to exercise that power.

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

Endnotes

1. The orders made by the Children's Court on 3 April 2021 allocated parental responsibility for Arwyn to the Minister for Families, Communities and Disabilities Services. Subsequently, the relevant department was renamed Department of Communities and Justice. For convenience, in these reasons we will refer to the subject department as Communities and Justice.
2. For example, GR v The Department of Communities & Justice [2021] NSWSC 1081; GR v Secretary, Department of Communities and Justice [2022] NSWCA 153.
3. The Court of Appeal heard that appeal on 14, 15 June 2022, the month before the Tribunal heard the Application (20 July 2022).
4. Section 3 of the Guardianship Act defines "a person in need of a guardian" to mean "a person who, because of a disability, is totally or partially incapable of managing his or her person". 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: 03 February 2023