Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZSE v ZSG [2021] NSWCATAP 69 Hearing dates: 2 December 2020 Date of orders: 22 March 2021 Decision date: 22 March 2021 Jurisdiction: Appeal Panel Before: A D Suthers, Principal Member J D'Arcy, Senior Member M A Oxenham, General Member Decision: The appeal is dismissed. Catchwords: APPEAL – Guardianship – whether decision as to who the Tribunal appointed as guardian manifestly unreasonable Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 65(1), 65(1)(a)-(c), 65(3), 80(2)(b) Guardianship Act 1987 (NSW), ss 4, 17 Cases Cited: Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 House v R [1936] HCA 40; 55 CLR 499; 10 ALJ 22 K v K [2000] NSWSC 1052 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 Texts Cited: Nil Category: Principal judgment Parties: ZSE (Appellant) ZSG (First Respondent) (Subject person) ZSF (Second Respondent) ZSH (Third Respondent) ZSI (Fourth Respondent) Representation: Nil File Number(s): 2020/00371042 (AP 20/39685) Publication restriction: The publication of the name of any of the parties or other people referred to in this decision including the publication of any information picture or other material that identifies them or is likely to lead to their identification is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not reported Date of Decision: 12 August 2020 Before: K A McMahon, Senior Member (Legal) A M Matheson, Senior Member (Professional) F N Given, General Member (Community) File Number(s): 2002/00130103 REASONS FOR DECISION 1. This is an appeal from a decision of the Guardianship Division of this Tribunal, made on 12 August 2020, which appointed the party designated ZSH in the appeal as guardian for the party designated ZSG, to make decisions about ZSG's health care and to give medical and dental consents on her behalf. The order is to be reviewed after 12 months. 2. We have concluded that the appeal should be dismissed. Publication of the names of the parties 1. 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 under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) which we will refer to as the NCAT Act. As an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision due to s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided to order, pursuant to ss 65(1)(a), (b) and (c) of the NCAT Act, that the publication of these reasons in a way which includes any details that may identify the parties is prohibited. Participation 1. For completeness, we record that ZSG did not seek to participate in the appeal. Whilst she participated in the proceedings at first instance, we accepted evidence that she was not able to participate in the appeal, due to her progressive cognitive impairment. 2. The Public Guardian also elected not to participate in the appeal. Background to the decision under appeal 1. ZSG was 91 years of age when the decision was made. She is living in fully-supported aged care. 2. Before moving to aged care, ZSG lived with her daughter, DR, who acted as ZSG's carer. In April 2020, DR died. This was apparently a trigger for ZSG's move to aged care. 3. ZSG has a long-time friend, ZSH. 4. ZSG also has another daughter, ZSF. ZSF and DR were estranged when DR died. 5. At the time of ZSG's move to aged care, she and ZSF were not in regular contact, but their contact recommenced after the death of DR. 6. ZSF has a son, ZSE. 7. Applications for the appointment of a guardian for ZSG were brought to the Tribunal by each of ZSH, ZSF, ZSE and the general manager of the aged care facility where ZSG resides (ZSI). Those applications were heard together, leading to the decision. 8. There is no dispute that ZSG is a person in need of a guardian, nor that an order should have been made. The parties agree that the order should include the functions assigned to the guardian in the decision. The sole issue in the appeal is who should have been appointed as ZSG's guardian. ZSE brought the appeal. He and ZSF say that ZSF ought properly to have been appointed to that role. ZSH maintains that there was no error in the decision to appoint him as guardian, as does ZSI. The Appeal 1. A party to proceedings of this nature may appeal, as of right, on a question of law. Otherwise, leave to appeal is required under s 80(2)(b) of the NCAT Act. 2. The Notice of Appeal did not identify grounds in the traditional sense. Instead, it indicated the concern held by ZSE and ZSF that the Tribunal appointed someone outside ZSG's family as her guardian. 3. At the hearing, we identified the following grounds, which encompassed the appellant's and ZSF's grievance about the decision: 1. Ground one – That the decision to appoint ZSH as guardian was manifestly unreasonable, where ZSH is not a member of ZSG's family and family members were available for appointment; and 2. Ground two – That the decision to appoint ZSH as guardian was manifestly unreasonable as the Tribunal gave improper weight to the views of ZSG in appointing ZSH as guardian, given ZSG's cognitive impairment. 1. Both of the appeal grounds constituted alleged errors on a question of law: Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 (Wednesbury); Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, per Mason J, at [15d]. 2. Leave to appeal is not required. Consideration Ground one – Unreasonableness in the decision not to appoint a member of ZSG's family as her guardian 1. In Wednesbury at pp 230, 233–234, Lord Greene M.R. explained that a decision could be seen as being manifestly unreasonable only if it is shown that the decision was so unreasonable that no reasonable person could have come to it. 2. Section 17 of the Guardianship Act 1987 (NSW) allows the Guardianship Division to appoint any person as ZSG's guardian, if that person's personality is generally compatible with that of ZSG; there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of ZSG; and the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. The Tribunal was clearly aware of the relevant test, which it referred to at [45] of its reasons for the decision. 3. There is no mandatory requirement to appoint members of ZSG's family in preference to a close friend, such as ZSG, contained in the Guardianship Act. 4. The Tribunal gave reasons for appointing ZSH instead of ZSF at [51] to [60] of its reasons for the decision, as follows: "51 [ZSF] did not take issue with [ZSH] having a long association with her family and friendship with [DR] and [ZSG]. She did not point to him making bad decisions or state that he would make bad decisions for [ZSG]. The emphasis in [ZSF]'s evidence was that she should have the role of decision-maker and guardian for [ZSG] because she is her daughter. She stressed the importance of family and said [ZSH] is not [ZSG]'s family. 52 [ZSE] also emphasised the importance of a family member being the decision-maker for [ZSG]. He also recounted the history of conflict between [DR] and [ZSF], stating that [DR] made it difficult for his mother to have contact with [ZSG]. He said that conflict stemmed back to [DR]'s grievance about earlier Tribunal proceedings for [ZSG]'s because allegations were made against a former partner of [DR]. He said now that [DR] has died, his mother is 'next in line' and is entitled to be the guardian as she is [ZSG]'s daughter. 53 [ZSH] spoke also of the estrangement between [DR] and [ZSF]. He was more inclined to the view that there was a degree of estrangement also between [ZSF] and [ZSG] however we make no finding about this. He said that both [ZSG] and [DR] had asked that he take on the role of assisting [ZSG] with decisions after [DR]'s passing. [ZSH]'s evidence is that he feels a strong commitment to [ZSG] by reason of their long association and his affection for her. He feels it is important that he fulfills the commitment that he previously made. 54 Both [ZSH] and [ZSF] work in aged care and spoke of their ability to understand the health and other care needs arising for [ZSG]. They both presented as committed to [ZSG]'s welfare. 55 [ZSI] spoke highly of [ZSH] and it was apparent that he has been involved in discussions with ZSI and other staff at [the aged care facility]. [ZSI] described [ZSH] in the role as 'very valuable' and said she speaks with [him] weekly and that he has Skype meetings weekly with [ZSG]. He has arranged for clothing and other items for [ZSG]. 56 Both [ZSH] and [ZSF] indicated a preparedness to consult with one another about decisions for [ZSG]. Whilst communications are strained, we acknowledge that both are well intentioned. Neither sought a joint appointment, which would likely be unworkable. 57 When we asked [ZSG] if she would prefer [ZSH] or [ZSF] to help her with decisions, [ZSG] said: 'I think [ZSH].' 58 In our view, both [ZSH] and [ZSF] met the requirements of s 17(1) of the Guardianship Act. Both of them, we accept are committed to promoting [ZSG]'s welfare. The evidence however supported [ZSH] being appointed to the role of guardian. We place weight on [ZSG]'s expressed preference that [ZSH] help her with decisions. This was an important factor in our consideration. [ZSG]'s evidence on this issue was consistent with [ZSH]'s evidence that [ZSG] had previously asked him to take on the role in the event of [DR]'s passing. Whilst not biological family, it is not in issue that [ZSH] has had a long and close association with [ZSG] as a family friend. His evidence along with that of [ZSI] demonstrated capacity for the role including that he would act consistently with promoting the policy objectives of the Guardianship Act. There was no issue raised that he would not make good decisions and we accept his evidence that he will consult. 59 A consequence of the estrangement between [ZSF] and [DR] is that she has been largely out of contact with [ZSG] for some years. This is regrettable however whether this was the fault of [DR] or otherwise is not now in itself a reason to appoint [ZSF] as the guardian simply because she is [ZSG]'s daughter. This is particularly so given the other factors that we have outlined above supporting [ZSH]'s appointment as the guardian. 60 We gave consideration to the importance of preserving family relationships in our considerations. In our view, [ZSH]'s appointment does not prevent [ZSG]'s family including [ZSF] and [ZSE] pursuing and nurturing their relationship with her." 1. In our view, the reasons disclose that the Tribunal properly turned its mind to considering whether ZSH or ZSF could be appointed as guardian for ZSG and made relevant and appropriate findings. 2. The ultimate decision as to who to appoint as guardian then fell within a broad discretion, within that context. There is no apparent error in the exercise of that discretion like those described in House v R [1936] HCA 40; 55 CLR 499; 10 ALJ 22. We are not satisfied that the Tribunal acted upon a wrong principle, allowed extraneous or irrelevant matters to guide it, mistook the facts or failed to take into account a material consideration. 3. Accordingly, this ground is not made out. Ground two – Unreasonableness in giving improper weight to ZSG's views that ZSH should be appointed. 1. There is no doubt that the views of ZSG were a mandatory consideration for the Tribunal in deciding who to appoint as ZSG's guardian: Guardianship Act, s 4. 2. As Mason J explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [40]: "It is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising [a discretionary] statutory power." 1. However, at [15d] of that decision, His Honour also confirmed that: "… both principle and authority indicate that in some circumstances a court may set aside an administrative decision which [… has…] given excessive weight to a relevant factor of no great importance." 1. ZSE and ZSF do not suggest that ZSG's views were of no great importance, but rather that the Tribunal gave excessive weight to them, having regard to ZSG's acknowledged cognitive impairment. 2. We accept that the Tribunal needed to weigh the view expressed by ZSG, and recorded at [57] of the reasons for the decision, with proper regard to the fact that ZSG has a cognitive impairment which may have impacted upon her ability to fully consider and weigh her options when responding to the Tribunal's question as to who she thought should be appointed as her guardian. 3. However, despite being directed to lodge the evidence he relied on in the appeal, the appellant provided neither the evidence before the Tribunal as to the extent of ZSG's cognitive impairment, nor the sound recording of the hearing. 4. On that basis, we have only the Tribunal's reasons to assist us in considering the extent to which ZSG's expressed views may have been impacted by her cognitive impairment. At [17] to [20] of the reasons, the Tribunal recorded the following: "17 On the basis of this information, [ZSG] has severe cognitive impairment and anxiety. [ZSG] has multiple other medical conditions including diabetes, Addison's Disease, diverticular disease, gastro oesophageal reflux disease (GORD) and deep vein thrombosis. [ZSG] has cataracts and hearing impairment. She experiences shortness of breath, chronic pain and has an unsteady gait. She has urinary incontinence and urinary tract infections. She requires insulin and a number of other medications. 18 [ZSI]'s evidence is that [ZSG] is unable to make informed decisions about her accommodation, care, health care and medical treatment. It is not in issue that [ZSG] was reliant upon her daughter, [DR] to make these decisions for her prior to her passing. 19 [ZSH], [ZSF] and [ZSE] did not take issue with [ZSI]'s evidence regarding [ZSG]'s cognition and other medical conditions. They all agree that she is in need of a guardian. 20 Our interactions with [ZSG] were consistent with [ZSI]'s evidence." 1. Whilst the reasons do indicate that ZSG has severely impacted cognition, that does not, in and of itself, mean that she cannot freely express a considered preference as to who should make decisions for her. 2. Further, in the absence of the recording of the hearing, we are in no better position than the Tribunal to assess that issue. The Tribunal was aware of ZSG's diminished cognition and exercises a specialist jurisdiction. Its decisions are to be given great weight: K v K [2000] NSWSC 1052 at [14]. We cannot be satisfied, on the material before us, that excessive weight was placed on ZSG's views, such that the decision was rendered manifestly unreasonable. While we note that the Tribunal considered ZSG's view to be "important" in its decision, it is clear that the Tribunal accepted ZSG's view expressed at the hearing and extrapolated from her views expressed previously, before the death of DR. 3. We are not satisfied that this ground is made out 4. Accordingly, the appeal should be dismissed. 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: 23 March 2021