EL v Office of the Public Guardian and anor [2008] NSWADT 84

CITATION: EL v Office of the Public Guardian and anor [2008] NSWADT 84

DIVISION: General Division

APPLICANT EL

PARTIES: FIRST RESPONDENT Office of the Public Guardian

SECOND RESPONDENT EO

FILE NUMBER: 083031

HEARING DATES: 11 March 2008

SUBMISSIONS CLOSED: 11 March 2008

DATE OF DECISION: 17 March 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Guardianship Act - Public Guardian - place to live

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Guardianship Act 1987

CASES CITED: N/A

APPLICANT In person

REPRESENTATION: FIRST RESPONDENT C Phang, solicitor

SECOND RESPONDENT In person

ORDERS: The decision of the Public Guardian is affirmed.

REASONS FOR DECISION Introduction 1 Ms X is a 25-year-old woman who had a cardiac arrest in 1995 resulting in a severe hypoxic brain injury. She is unable to communicate verbally and is severely physically disabled. Following the injury her parents looked after her at home. Her father provided the primary care while her mother continued working but cared for Ms X at other times. In 2002 Ms X's parents separated. Her father moved out of the matrimonial home and took Ms X with him. Since that time the father has been the primary caregiver while the mother has had regular access. That access currently occurs every second weekend and once or twice during the week at lunchtime while Ms X is at a day programme. In 2005 the Guardianship Tribunal made an order appointing the Public Guardian as Ms X's guardian and gave him the functions of making decisions about her accommodation, the services she should receive and the access that family and friends should have. 2 The father expressed the view to the Public Guardian that he should be permitted to move to the South Coast from an inland town in New South Wales and take Ms X with him. The mother objected to this proposal and after some investigation the Public Guardian decided to allow the father to move. The Public Guardian was satisfied that Ms X would receive adequate support services in her new location and that she would still have regular, although much less frequent, access to her mother and her mother's family. That decision was affirmed following an internal review. The mother has now applied to the Tribunal for a review of that decision. The father has been joined as a party. 3 I am satisfied that the decision was made in connection with the exercise of the Public Guardian's functions under the Guardianship Act 1987 and that the mother is a person whose interests are adversely affected by the decision: Guardianship Act 1987, section 80A. The Tribunal's role is to conduct a merits review of the Public Guardian's decision and to determine whether that decision is the correct and preferable decision or not: Administrative Decisions Tribunal Act 1997 (ADT Act), section 63. It is my duty when exercising that function to observe the principles set out in section 4 of the Guardianship Act 1987: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles. Findings of fact 4 The Public Guardian provided a bundle of documents, which had been taken into account in making the decision. Further documents were provided at the hearing namely a report from a community worker with the Department of Ageing Disability and Home Care and the latest reasons for decision from the Guardianship Tribunal renewing the guardianship order for two years. The mother also provided some documents in support of her submission that the father not be permitted to relocate to the South Coast. Unfortunately, some of that material contained prejudicial opinions in relation to the father. Since the authors of those documents did not purport to be providing an expert opinion I have ignored that evidence. I accept the remainder of the evidence relating to the relationship Ms X has with her mother and other relatives and their views about where Ms X should live. 5 Ms X is unable to express a view about the proposed relocation. She is unable to communicate other than to indicate when she is in pain. Given that she was 12 years old when the injury occurred, it is not possible to predict, some 13 years later, what her view would be about where she should live. 6 On the basis of the relevant evidence it is clear that the father is devoted to his daughter and is providing appropriate care and support for her. He is not employed and wishes to relocate to the South Coast following the divorce. Service providers said that he would benefit from moving to a new location. In their view his improved sense of well being would increase the likelihood that Ms X remained well cared for and supported. Ms X's advocate, Andrea Gray, who has known Ms X since 2004, supported the father's relocation request. Ms Therese Jones-Mutton, Ms X's social worker and case manager also supported the relocation saying that the father ". . . believes that being located in a coastal region would benefit him psychologically and in view of the long term commitment he has made to [Ms X], whatever benefits him will ultimately benefit her. In addition the one source of stress in [the father's] life has been his ongoing difficulties with [the mother]. His contacts with her, her friends and her family continue to be tense and he rightly feels that leaving town and having a fresh start would be worthwhile." Marie Richards (service co-ordinator of the Home Care Service NSW) also supported the father's decision to relocate. Finally, Anne Baker, Manager, Community Access and Support Service, pointed out that where a person lives can have an effect on their psychological well being and consequently on the quality of care they can provide. 7 Service providers were also satisfied that Ms X would be able to access adequate services if she moved. Day programs are available in Milton, Bateman's Bay and Nowra. The mother expressed concern that these locations may be up to 45 minutes drive from where the father intends to live. While she expressed the opinion that Ms X was more distressed when travelling in the car, that was not a view shared by the father who transported Ms X on a much more regular basis than the mother. Consequently I accept the father's evidence that being in a car for periods of up to 30 to 45 minutes would not cause Ms X any particular distress. 8 The father proposed to take Ms X to see her mother and other relatives three times a year for periods of between two to three weeks. He proposed that she would reside in respite accommodation during that time and that family members would be able to visit whenever they chose. The mother said that this arrangement would not suit her because she is only entitled to four weeks annual leave. She said that the current arrangements suited her because she could see Ms X more regularly. 9 I am satisfied that the mother is devoted to Ms X and is providing appropriate care and support for her at the times when she has access. However, the mother did not dispute the father's claim that the level of additional support, which she had said she would provide, has not eventuated. In particular, the father said that the mother had only been able to have Ms X on 17 of the 54 days she agreed to have her in 2005 and on only 14 of the 54 potential days in 2006. While illness and open house days preceding the auctioning of the matrimonial home had contributed to this situation, the father was disappointed that the mother was not able to have more regular access with Ms X. 10 Ms X has extended family including a brother, grandparents and aunts and uncles all of whom support her and wish her to remain where she is currently living. 11 The father said that if permission was not given for him to relocate he would remain where he is currently living and continue caring for Ms X. The mother said that she would be prepared to look after Ms X on a full-time basis if the father relocated. Application of principles 12 When determining whether the Public Guardian's decision is the correct and preferable decision, the welfare and interests of Ms X should be given paramount consideration. The most significant change to the current arrangements if she moves is that she will have less frequent access to her mother, her brother and other relatives. The carers and volunteers who are currently providing services to Ms X would also change but I am not persuaded that such a change would have any significant impact on her sense of well being. Apart from the paramountcy of Ms X's welfare and interests, the most significant principle relevant to the circumstances of this case is the importance of preserving family relationships. What must be weighed in the balance is the potential positive effect on Ms X of being cared for by a father who is living where he wants to live with the potential negative effect of not having as regular access to her mother and other extended family members as she currently has. 13 The unanimous opinion of the service providers whose views had been obtained was that it was in Ms X's best interests for her to relocate with her father. Those opinions were based mainly on two factors: an anticipated improvement in the father's psychological well being and the fact that the mother has been unable to provide the level of care that the father anticipated that she would be able to provide. Although the mother said that she was prepared to care for Ms X full time if the father wanted to move, service providers were sceptical about the mother's commitment to care for Ms X full time. In those circumstances I am satisfied that the preferable decision is for Ms X to be permitted to move to the South Coast with her father. The Public Guardian will endeavour to ensure that Ms X receives at least the same level and quality of services at her new location as she is currently receiving and that she has regular access visits with her mother and other family members. Order The decision of the Public Guardian is affirmed.