Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZZT v Public Guardian [2022] NSWCATAP 372 Hearing dates: 9 November 2022 Date of orders: 29 November 2022 Decision date: 29 November 2022 Jurisdiction: Appeal Panel Before: A Suthers, Principal Member Decision: (1) The application for a stay is dismissed. Catchwords: APPEAL – application for a stay of orders made in the Guardianship Division Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW) Cases Cited: GR v Secretary, Department of Communities and Justice [2022] NSWCA 153 Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Texts Cited: None cited Category: Procedural rulings Parties: ZZT (Appellant) NSW Trustee and Guardian (First Respondent) ZZU (Second Respondent) ZZV (Third Respondent) Public Guardian (Fourth respondent) Representation: Solicitors: Appellant (Self Represented) First Respondent (No Appearance) Second Respondent (No Appearance) Crown Solicitor (Third Respondent) Fourth Respondent (No Appearance) File Number(s): 2022/00248956 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: N/A Date of Decision: 09 June 2022 Before: 9 June 2022 R Booby, Senior Member 20 July 2022 S Barnes, Senior Member M Staples, Senior Member P McGirr, General Member File Number(s): 2022/00106202 REASONS FOR DECISION 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 the Tribunal, is prohibited: s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of 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, I have decided not to publish in these reasons any details that may identify the individual parties. 2. Accordingly, in this appeal, the parties have been assigned pseudonyms as follows: * ZZT – Appellant and the mother of the person about whom the Tribunal made orders; * ZZU – the person who is the subject of the applications and orders; * ZZV – the applicant in the proceedings at first instance. Summary 1. This decision relates to an application for a stay concerning orders made by the Guardianship Division regarding ZZU. 2. For the reasons below, I have decided to dismiss the application. History 1. ZZU is an 18 year old man with an autism diagnosis. Prior to his turning 18, he was under the care of the Minister for Families, Communities and Disability Services (Minister), by order of the Children's Court. The order allocated all aspects of ZZU's parental responsibility to the Minister. 2. ZZU's parents remain interested in his welfare, but are strongly opposed in their views about how that should be promoted. The appellant is ZZT, ZZU's mother. She has fought a long legal campaign to have ZZU returned to her care, summarised in a recent decision of the Court of Appeal: GR v Secretary, Department of Communities and Justice [2022] NSWCA 153 ("GR"). 3. In advance of his 18th birthday, when the order that ZZU be under the Minister's care would expire, ZZV, on behalf of the Minister, brought applications to the Tribunal's Guardianship Division seeking that the Public Guardian and New South Wales Trustee and Guardian be appointed as ZZU's guardian and financial manager, respectively, on his turning 18. 4. Both of ZZU's parents made an application to be joined to those proceedings, as they were not automatically parties: Guardianship Act 1987 (NSW), ss 3f (2) & (5). 5. Those applications were dismissed by a Senior Member on 9 June 2022, which in respect of the dismissal of the appellant's application, is the first order challenged in this appeal. In respect of that decision, the appeal was lodged out of time. No written reasons for that decision are available. As it was an interlocutory decision, written reasons were not required unless requested: NCAT Act, Sch 6, cl 11(2)(c). Nor was the Tribunal required to conduct a hearing before determining the applications: NCAT Act, Sch 6, cl 6(2). 6. The substantive applications proceeded to hearing on 20 July 2022 and the Public Guardian was appointed as guardian for ZZU, commencing on his turning 18. The Public Guardian was given the functions of making decisions about his access to others; accommodation; health care; medical and dental consents; and the services he receives. ZZU's financial affairs were committed to the management of the NSW Trustee. Both of ZZU's parents appeared as witnesses and gave evidence at the hearing. ZZU also participated in the hearing, as did his appointed separate representative. The Tribunal's orders were consistent with the submissions of the separate representative. 7. The appellant also wishes to challenge the substantive decisions and has nominated them as decisions to which the appeal relates. However, as she was not a party to the substantive proceedings, she has no current standing to bring the appeal in that regard: NCAT Act, s 80(1). 8. In addition to lodging this internal appeal, the appellant has lodged concurrent proceedings in the Supreme Court for judicial review of the relevant decisions, thereby avoiding the prohibition on lodging concurrent appeals in the Tribunal and Court contained in cll 12(4) & (5) of Sch 6 to the NCAT Act. The judicial review proceedings had not reached first mention when this application was before me. 9. Finally, in respect of the procedural history of the appeal thus far, I dismissed an application for a stay by the appellant in respect of the substantive decisions at first instance and gave oral reasons on 26 October 2022. This decision needs to be considered in that context. I will not repeat the reasons for my earlier decision here. The substantive appeal is listed for hearing on 20 December 2022, and a separate representative has been appointed for ZZU in the appeal. The renewed application for a stay. 1. The appellant can, I think, be properly described as desperate to have ZZU return to live with her and to be responsible for helping with any assistance he may need, although she denies that ZZU's disability prevents him making his own important life decisions. That desperation is reflected in her ongoing correspondence with Registry in the days after the application was heard, and whilst I was reserved. Unfortunately, that conduct is unhelpful and conducive to delay. 2. Of course, my decision to refuse the previous stay application does not create a res judicata or issue estoppel that prevents the order from being revisited and varied. However, there is an ordinary but not invariable rule of practice, founded on the interests of justice, that such an application should be grounded on a material change in circumstances or discovery of new material: Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46. 3. When asked what had changed since her previous application for a stay was dismissed, the appellant pointed to what she perceives as a lack of any action by the Public Guardian since the order took effect on ZZU turning 18. She also drew attention to the Public Guardian's tardiness in responding to her correspondence seeking to have different decisions made for ZZU, from those which were made whilst he was under the care of the Minister. 4. I note, however, that the Public Guardian's appointment only commenced in late October 2022 and it is understandable, in my view, that there might need to be some reasonable time allowed for the Public Guardian to ensure that she has gained a proper understanding of ZZU's needs and to assess what decisions may need to be made, including in response to the appellant's requests. 5. The appellant's expectations are also very high, given that she first requested the Public Guardian to decide to move ZZU to her home by email at 9.19am on his birthday and, after the Public Guardian requested more information by email at 5pm that day, the appellant renewed the request that ZZU move "tonight" by email at 5.13pm. The appellant did not, however, supply the information requested by the Public Guardian which might properly inform the decision. The appellant has also been emailing the Public Guardian frequently, which may hinder, rather than assist the appellant's requests being promptly dealt with. For example, the appellant provided me with five emails she has sent to the Public Guardian on 1 November 2022 alone. 6. Given the nature of the appellant's concerns, though, it was unfortunate that the Public Guardian did not appear at the hearing of the application as some of those concerns may have been satisfied, or at least assuaged, if the appellant could be assured that what she has proposed was under consideration or if any outstanding information required was identified. 7. There is, though, a fundamental basis on which the application must again be dismissed, in the interests of keeping ZZU's welfare and interests paramount: Guardianship Act, s 4. For that reason, I do not intend to delve into (in any depth) the other considerations usually applicable in determining an application for a stay, in respect of the grounds of the appeal, or the appellant's asserted concerns about ZZU's current circumstances. I will focus on the effect of the guardianship order, which also appears to be the primary focus of the appellant's concerns. I will also leave to one side any legal obstacles the appellant may encounter in successfully prosecuting the appeal. 8. The simple fact is that it would be inappropriate for me to stay the guardianship order, made by the Tribunal after consideration at a hearing on the merits, based solely on what I might make of the appellant's evidence and submissions lodged in respect of the application for a stay. All the concerns now raised for ZZU's welfare appear to have been considered and dealt with by the Tribunal when making its substantive decisions. The Tribunal, constituted as a multi-disciplinary panel, had the advantage of hearing from several people involved in ZZU's life, including his father, and from ZZU himself, whereas I have only the material and submissions of the appellant and, to a limited extent, those made by Ms Mihell, solicitor, on behalf of the Minister. The Minister quite properly takes the stance that she no longer has an interest in the proceedings and has remained involved, to this point, solely to assist the Tribunal by providing a contradictor in the absence of any participation by the Public Guardian or NSW Trustee. 9. In such circumstances, I would need the clearest of compelling reasons to interfere with the order, pending the hearing of the appeal on 20 December 2022. I am not satisfied that any compelling reasons have been established. 10. If I stay the order, it will leave a vulnerable member of society without a guardian, when the Tribunal was satisfied a guardian was needed. On the appellant's case, ZZU would then return to live with her. Given that the appellant does not accept that ZZU needs a substitute decision maker, there would likely be a lacuna in decision making to promote ZZU's interests until the appeal could be heard. Noting the level of animosity between ZZU's parents, apparent from the Apprehended Violence Order in effect between them, there would also be the strong possibility that they would then engage in a contest of wills, to fill that decision making gap, in a way unlikely to be conducive to promoting ZZU's welfare and interests. At the very least, ZZU's contact with his father would likely be curtailed. 11. I also need to consider the fact that the appellant was found to have been unsuitable to exercise parental responsibility for ZZU before he reached adulthood, a decision recently reviewed at the appellate level. In GR at [118] – [119] Brereton JA found, relevantly, where ZZT was assigned the pseudonym "GR" and ZZU was assigned the pseudonym "Arwyn": … At least by the time of the proceedings before Sackar J, Arwyn's condition had stabilised, his eating had improved, and his functioning was improving. As his Honour explained: [204]: "In all of the circumstances I am unable to be satisfied that GR is capable in any sense in having the responsibility of [Arwyn] at home with or without assistance. I am not satisfied GR has the capacity rationally or objectively of giving his condition and the necessary therapy required by it the priority it needs. I do not consider even assuming best intentions, [Arwyn] would be in a safe, calm, and respectful environment if he was with GR in her care. At the moment [Arwyn] is developing his confidence in a conflict-free, no pressure setting. He has it seems a trusting constructive relationship with his carers especially Mupo, Gary and his psychologist (s.90(6)(d)). That should not be disturbed or interfered with as I consider it would be very much to his detriment and contrary to his best interests." It is very difficult to dispute that evaluative judgment. Thus, while I would not refuse leave on the basis there was no apparent arguable error, that is not to say that a more than merely arguable case of error in Sackar J's ultimate decision has been demonstrated. 1. At [127] – [128] his Honour continued, discussing the appellant's proposal in the event leave to appeal had been granted and error established: Thus the alternative proposal was that Arwyn would reside with GR in her home, with support funded by NDIS and coordinated by Hunter Primary Care. In fact, the letter from Hunter Primary Care falls short of any such guarantee as the applicant asserted. It states: "We can assist in providing the necessary support and supervision of all services for [Arwyn] to keep him safe and in the full-time care of his Mother ([GR]), in his own home at XX Patricia Ave Charlestown NSW 2290 or wherever he chooses to live with his Mother." What these proposals conspicuously fail to address is how the situation will be managed if Arwyn were to barricade himself in his room, refuse to attend school, demand money, threaten or inflict violence, or restrict his food intake. Given his history, the aspiration that he would not revert to such behaviour if returned to the environment of his home, or that if he did GR would be able to manage the situation, would be a triumph of hope over experience. It is clear from GR's statements and communications that she harbours deep reservations about his attendances at a farm for equine therapy, as she complains that he is being used for slave labour shovelling manure, and it must be anticipated that she would not be supportive of this therapy, which at last appears to be providing Arwyn with an outdoor activity and interest in which he is willing to participate. 1. In the face of those findings, which are consistent with the decisions of the other members of the Court and that of the Tribunal, staying the orders, or making an order affecting them to allow the appellant to have decision making authority for ZZU would be unduly precipitous. 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: 29 November 2022