Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZUO v ZUQ [2021] NSWCATAP 142 Hearing dates: 4 May 2021 Date of orders: 18 May 2021 Decision date: 18 May 2021 Jurisdiction: Appeal Panel Before: The Hon F Marks Principal Member J Currie Senior Member L Porter General Member Decision: Appeal dismissed Catchwords: APPEAL from decision on review of guardianship order – held no demonstrated error in decision – appeal dismissed Legislation Cited: None cited Cases Cited: None cited Category: Principal judgment Parties: ZUO (Appellant) ZUP (First Respondent) ZUQ (Second Respondent) Public Guardian (Third Respondent) Representation: ZUO (Self Represented) ZUP (Self Represented) ZUQ (No Appearance) Public Guardian (No Appearance) File Number(s): 2021/00056121 (AP 21/08003) Publication restriction: Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. The provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 28 January, 2021 Before: J D'Arcy Senior Member File Number(s): NCAT 2013/00390747 reasons for decision Background 1. These appeal proceedings concern ZUP. ZUP is 25 years old and for some time has lived with her mother, ZUQ in a home in an outer Sydney suburb. ZUP has Rhett syndrome with severe developmental delay. She has a severe physical and intellectual disability, with very limited mobility, is PEG fed for all of her nutritional intake, is legally blind and experiences epileptic seizures. She has no verbal communication. 2. ZUP has been the subject of guardianship orders for some years. For the purposes of these appeal proceedings a guardianship order was made by this Tribunal on 19 June 2019 appointing the Public Guardian to make decisions about access and her mother ZUQ to make decisions about healthcare and travel. That order was the subject of review undertaken by a Senior Member of this Tribunal. In a decision dated 28 January 2021 the Senior Member appointed ZUQ as the sole guardian for a period of 2 years with functions extending to access, healthcare and travel. 3. The appellant in these proceedings, ZUO is the father of ZUP. The ground of appeal is that ZUQ should not have been appointed guardian because she has a financial conflict of interest. The relevant evidentiary background 1. The narration which follows is based on information filed in these appeal proceedings and on material contained in previous decisions of this Tribunal concerning ZUP. 2. ZUO and ZUQ are divorced and have established new homes with new partners. For some years they have both differed over access to ZUP, particularly the circumstances in which she would reside with them. 3. ZUP has substantially lived with ZUQ. She has spent periods living with ZUO. ZUQ applied for a guardianship order in 2014 because ZUO indicated that he wanted ZUP to stay with him on a "week about basis", and she was concerned about his ability to look after her for regular periods exceeding weekends. In determining that application, the Tribunal noted evidence of an absence of an effective working parental relationship between both parents, different parenting styles, a lack of trust between parents, an inability to communicate effectively between them and "a troubling history of conflict between the parties." In particular, there was conflict concerning a particular activity centre which ZUP might visit, the need for respite care, and whether it would be appropriate to take her overseas, having regard to her medical and other needs. 4. A report of Dr Bruce Currie, paediatric surgeon dated 13 March 2019 notes conflict between the parents as to the most appropriate manner in which ZUP should be fed, either being through a continuous feed or a bolus feed. 5. A comprehensive occupational therapy report was provided by Kenrick Morgan following assessments made on 7 and 14 January 2020. The purpose of that assessment was to determine the suitability of the residence of ZUO for ZUP to stay there. That report noted, with respect to ZUP that 1. she was fully dependent on one person for all aspects of personal care including showering, washing and dressing 2. she was doubly incontinent, and pads were changed at a minimum of 4 times daily 3. a carer was required to set up and monitor the use of her PEG feed for all nutrition and medication 4. she should be showered daily, and at a minimum every 2 days, she required a mobile chair for movements, a mobile hoist for transfers and a height adjustable electric bed padded sides and protection 5. in terms of accommodation, this should have level access entry with no internal stairs or steps, sufficient space to accommodate storage and use of a mobile hoist transfers, a level access shower in a room with space for a commode, access to a mobile hoist, hospital bed and suitable alternative seating 6. the residence of ZUO was not suitable for her accommodation because it had 2 levels, she spent most of her time on the upper level and the only access was by 15 steps in a narrow passageway. It was noted that ZUP then weighed 48 kg and had to be carried up and down these 15 stairs "4 or more times per day….. by her father. This is never recommended due to risk of injury to either (ZUP) or the person carrying her (including accidentally causing damage to her PEG button)." There was also limited space for use of mobile hoist and a lack of suitable bed and other equipment. 1. In supporting material ZUQ has referred to the refusal of ZUO to allow ZUP to be continually fed through the PEG as a means of controlling her input and stopping her tendency to gag when fed at intervals. It seems that the basis of his objection is that specific feeding intervals are more personal. 2. Information made available by the occupational therapist is that when ZUP stays with her father she is showered twice weekly, which is not appropriate for her circumstances, given her incontinence and the use of pads. Inadequate showering has also been noted by ZUQ when she has picked her daughter up from her father's residence. The decision under appeal 1. In her reasons for decision the Senior Member noted information conveyed by a representative of the Public Guardian that that appointment should lapse because implementation of the access function was "unworkable." This was because ZUO refused to engage in telephone conversations with the Public Guardian and would only communicate by email. The Public Guardian restricted access to ZUO's home following receipt of the occupational therapy report which had determined that it was unsafe for ZUP to stay there. 2. The Senior Member noted submissions from ZUQ that it was necessary for functions relating to healthcare and travel to be maintained because of ongoing dental treatment, urologist treatment and attendances on the Rett clinic and a general practitioner. She also sought the continuation of functions relating to travel because she thought that travel for more than 3 hours was not manageable, especially as ZUP needs to be fully supported in a wheelchair. She said that ZUO did not agree to limiting travel to 3 hours. 3. ZUQ informed the Senior Member that she would allow overnight access to ZUO if he complied with the requirements of the report of the occupational therapist. Otherwise, access would not include an overnight stay. 4. ZUO agreed to the need for a health care function. However, he objected to the making of a travel function because, as the Senior Member summarised his position "any discomfort his daughter may experience would be overridden by the enjoyment derived from the holiday." Without commenting on the merits of the position contended for by ZUO, we observe that this appears to be symptomatic of the inability of the parents to reach sensible agreement about a number of issues. 5. With respect to his residence, ZUO informed the Senior Member that he agreed that it was not perfect and that he was endeavouring to eliminate or mitigate the risks associated with his daughter staying at his home. He resisted the making of an access function. 6. After considering the evidence before her the Senior Member determined that a guardianship order was necessary in view of the competing views of the parents over a range of issues. She concluded the guardian should have functions extending to healthcare, access and travel. 7. With respect to the travel function, the Senior Member said ……there is a need for a travel function to ensure that reasonable decisions are made about the type of travel that (ZUP) can undertake given the restrictions imposed by the need for personal care after 3 hours and appropriate seating which caters for her uncontrolled movements. The opposing attitudes of (ZUQ) about appropriate travel for their daughter indicates that informal decisions cannot be made about travel. 1. We observe that in describing the travel function in the orders which she made the Senior Member said that the function was To make decisions about whether or not (ZUP) can travel to any place outside Australia. 1. In the hearing of these appeal proceedings ZUQ expressed concern that the travel function was formulated so that it applied only to travel outside Australia, whereas the reasoning of the Senior Member was based on travel in excess of a period of 3 hours. It may be that the manner in which the function was expressed in the reasons of the Senior Member was a "slip", in which case we ask the Registrar that this be brought to her attention. In any event it is a matter that might be taken up by ZUQ if she remains concerned by seeking a review of the order. 2. The Senior Member then determined who should be appointed as the guardian. Because the Tribunal had previously decided that ZUQ met the requirements of the Guardianship Act the Senior Member concluded that it was appropriate that she be appointed sole guardian, "to promote consistency in decision-making." The grounds of appeal and the appellant's submissions 1. The sole ground of appeal formally noted in the Notice of Appeal was that the appointed guardian had a financial conflict of interest which precluded her from performing that function. In written submissions the appellant clarified this by stating that ZUQ derived money from caring for ZUP and presumably this financial interest prevented her from acting in the best interests of ZUP. 2. The appellant elaborated on his concerns in the Notice of Appeal. He said that in 2018 ZUP has spent approximately 2976 hours with him. In 2019, NDIS approved an increase in funding to ZUQ on the basis that she spent all of her nights with ZUQ. In that year ZUP spent 48 hours with him. The following year, with the same level of NDIS funding ZUP spent 10 hours with him. He said that there was thus a financial incentive for ZUQ to maximise the time that ZUP stayed with her. 3. ZUQ responded that the NSW Trustee and Guardian had been appointed the financial manager of ZUP, had control of her finances, and would preclude her from unduly deriving money whilst caring for her. We agree. 4. We are unable to conclude, on the basis of the available evidence whether and to what extent ZUQ might derive some financial benefit from having ZUP stay with her in her home. It is uncontroversial that unless and until the appellant is able to provide accommodation for ZUP which meets her needs as assessed by the occupational therapist, it is reasonable that ZUP not stay at his home and the appellant is precluded from relying on any argument that ZUQ has a conflict of interest of a financial nature as alleged by him which would preclude her from being appointed guardian. 5. In the course of argument before us ZUO said that he could change the accommodation arrangements at his home by allowing his daughter to sleep downstairs. ZUQ pointed out that there are no facilities for her in the downstairs area which we note, consists of a bedroom and adjoining bathroom only and that all of the living areas are upstairs. There is no evidence that the appellant has endeavoured to arrange accommodation for ZUP on this basis, and it is clear that it if he sought to do so it would disadvantage her by depriving her of access to the living areas, and would relegate her to being confined in his accommodation. 6. We reject the appellant's submission that the Senior Member was in error in appointing ZUQ guardian on the basis of any financial conflict. 7. In written submissions the appellant also asserted that ZUP had been denied procedural fairness by the Senior Member who had conducted a hearing by telephone which had precluded ZUP from participating. He said that the Senior Member should have ensured that ZUP attend personally. When we pointed out to him that on the evidence his daughter could not have participated in the hearing and would not have been able to comprehend what was occurring, the appellant replied that at least the Senior Member "could have eyeballed her." He was unable to explain how this would have assisted the Senior Member in determining the proceedings and how this might have had some impact on the result. 8. We would add for completeness that whilst it is obvious that all proceedings be conducted with participants attending in person, the proceedings before the Senior Member could not have been so conducted because of sensible restrictions imposed in response to the Covid 19 pandemic. 9. We reject this submission. Conclusion and order 1. For the reasons set out above the submissions of the appellant are rejected. To the extent that leave to appeal is necessary, it is rejected. The appeal should be dismissed and we so order. 2. We ask the Registrar to draw our observations in [19] above to the attention of the Senior Member. ********** 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 May 2021