CITATION: ZS and ZT v Public Guardian [2007] NSWADT 57 DIVISION: General Division FIRST APPLICANT ZS PARTIES: SECOND APPLICANT ZT RESPONDENT Public Guardian FILE NUMBER: 063451 HEARING DATES: 9 March 2007 SUBMISSIONS CLOSED: 9 March 2007 DATE OF DECISION: 14 March 2007 BEFORE: O'Connor K - DCJ (President) CATCHWORDS: Guardianship Act - Public Guardian - place to live - Public Guardian - place to live MATTER FOR DECISION: Principal application LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 FIRST APPLICANT In person SECOND RESPONDENT REPRESENTATION: In person RESPONDENT C Phang, solicitor, Office of the Public Guardian ORDERS: Decision under review affirmed Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following: (a) proceedings in the Community Services Division of the Tribunal, (b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division, (b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983, (b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983 (c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section. (1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person: (a) who appears as a witness before the Tribunal in any proceedings, or (b) to whom any proceedings before the Tribunal relate, or (c) who is mentioned or otherwise involved in any proceedings before the Tribunal, whether before or after the proceedings are disposed of. Maximum penalty: 10 penalty units or imprisonment for 12 months, or both. (2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section. (3) For the purposes of this section, a reference to 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. REASONS FOR DECISION 1 The applicants are the adult daughter (ZT) and the adult son (ZS) of ZH, their father and a protected person. His accommodation and health care have been committed to the management of the Public Guardian by way of a limited guardianship order made by the Guardianship Tribunal under the Guardianship Act 1987 (the Guardianship Act). The applicants have applied to the Tribunal under s 28 of the Guardianship Act for review of a decision by the Public Guardian to relocate their father from an acute care nursing facility at Burradoo, south of Sydney, to an acute care nursing facility at Banora Point, which is close to the border with Queensland and almost 1000 kms north. 2 The applicants are concerned that the move will set back their father's health, involve an unnecessary disturbance in his care, remove him from a stable and professional care environment and severely reduce their ability to visit their father, and similarly affect the ability of his grand-children to spend time with him. The son lives at Macquarie Fields, while the daughter lives close to Burradoo. 3 They are in disagreement with their mother over the proposed move. Their mother is herself in need of some supported care – of a lesser degree. She also wishes to move to a suitable facility in the Banora Point area. She wants to remain near her husband, and be able to visit him. This can be achieved if he is moved to the area. She has said that if the ultimate decision is not to move her husband, then she herself will not move to Banora Point, and instead continue to live in the family home at Macquarie Fields, where she now lives on her own. 4 The reason why Banora Point is particularly attractive to her as a place to which to move is that she has a number of members of her family (siblings and in-laws) living in the area. She intends moving to a retirement home that is only 10 minutes away from the acute care hospital to which it is proposed to move her husband. This would mean that she would be able to visit and be with her husband much more than is now possible. Macquarie Fields is 80 kms from Burradoo, and the car journey each way is over an hour. She feels that her relatives at Banora Point would also be able to assist her in giving support to her husband. 5 The initial decision to relocate was made by Mr Gary Smith, an officer of the Public Guardian. His decision was confirmed on internal review. The applicants filed for review in the Tribunal on 28 December 2006. The Tribunal directed that notice of the proceedings be given to their mother. The hearing was held on 9 March 2007. The applicants attended in person, and made submissions. Ms Phang, legal officer, appeared for the Public Guardian. Mr Smith attended and participated in the proceedings. Ms Hart, solicitor, appeared for the applicants' mother, who attended and also participated in the proceedings. As requested by the Tribunal at the directions hearing, Ms Phang tendered reports from the facility at Burradoo relating to the extent of visits by family members to ZH. There was also a further report from the geriatrician at Burradoo relating to ZH's ability to cope with any move. 6 The Tribunal stands in the shoes of the Public Guardian. Its duty is to make the 'correct and preferable' decision, having regard to all current, relevant material: see generally, Administrative Decisions Tribunal Act 1997. The principles to be applied to the task are similar to those required to be addressed by the Guardianship Tribunal when making guardianship orders. In that regard, s 14(2) provides: '(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.' 7 Another provision in the Guardianship Act gives some guide to the priorities that Parliament sees appropriate to adopt as between different members of a family. It deals with the concept of the 'person responsible', an important one in relation to the administration of a number of matters. Section 33A(4) provides: ' (4) Person responsible for another person There is a hierarchy of persons from whom the person responsible for a person other than a child or a person in the care of the Director-General under section 13 is to be ascertained. That hierarchy is, in descending order: (a) the person's guardian, if any, but only if the order or instrument appointing the guardian provides for the guardian to exercise the function of giving consent to the carrying out of medical or dental treatment on the person, (b) the spouse of the person, if any, if: (i) the relationship between the person and the spouse is close and continuing, and (ii) the spouse is not a person under guardianship, (c) a person who has the care of the person, (d) a close friend or relative of the person.' 8 The Public Guardian notes that a spouse in a relationship that is close and continuing is accorded priority over, for example, close relatives such as children. 9 This is a difficult and distressing case. 10 In the Tribunal's view, it is most likely that if ZH could express his own wishes he would agree to move to where his wife now wants to live. Theirs is a stable marriage of more than 50 years. His wife's continued affection for him is evident from the frequent and long visits that she makes to him at Burradoo despite the distance involved. Equally, the Tribunal accepts that the applicant daughter is also a frequent visitor to her father. The applicant son also makes regular visits. Obviously it will be much more difficult in future for the daughter and the son, and the grand-children, to remain in contact. The Tribunal notes, in that regard, that the prognosis for the father is not optimistic. The geriatrician's estimate of his life expectancy is two years. 11 The possible adverse effect the move might have on their father's health and well-being is addressed by the medical reports. Two treating doctors have given reports. He will need to be transported by ambulance to Sydney Airport, then fly to Coolangatta and be transported by ambulance from there to Banora Point, about 15 minutes away. The Public Guardian has adopted the recommendations of the treating doctors as to how the move should be managed. For example, ZH is to be accompanied by a registered nurse. 12 It is true that the move will mean a change in the personnel of the care team. ZH has been at the Burradoo facility now for almost a year. The treating doctors did not think that the change in the care team was a significant concern. The Public Guardian noted that the Banora Point facility is an acute care facility classified at the same standard as Burradoo. 13 The personal relationship between the applicants, on the one hand, and their mother, on the other hand, is, presently, in a poor state. There has, it would seem, been a good deal of disagreement over issues surrounding the care of ZH in recent years. The applicants tend, the Tribunal thinks, to see their mother's desired move as self-centred and affected by recrimination. The Tribunal accepts that the applicants very much love their father, and their case for having him stay in a place where there can still be practical contact with him by them and the grand-children has strength. 14 But ultimately the Tribunal is of the view that the Public Guardian's assessment is correct. Most importantly, the Tribunal agrees with the Public Guardian that their father, if he could, would be likely to say that he wishes most of all to remain close to his wife, and respond to her increased need for care and be prepared, therefore, to accept as a price a lesser degree of contact with his children and grand-children. Order Decision under review affirmed. 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.