Re H [2013] NSWSC 1384

Supreme Court New South Wales

Medium Neutral Citation: Re H [2013] NSWSC 1384 Hearing dates: 13 September 2013 Decision date: 13 September 2013 Jurisdiction: Equity Division - Duty List Before: White J Decision: Refer to paras [29] and [30] of judgment. Catchwords: GUARDIANSHIP - application to discharge order restraining guardian from relocating person subject to guardianship order - first defendant subject to guardianship order residing in nursing home - second defendant guardian intended to relocate first defendant from nursing home to former residence - plaintiff obtained order restraining second defendant from so doing - guardian is person primarily responsible for determining where person subject to guardianship order resides - whether serious question to be tried that plaintiff could obtain change of guardianship Legislation Cited: Guardianship Act 1987 Cases Cited: K v K [2000] NSWSC 1052 EB v Guardianship Tribunal [2011] NSWSC 767 Category: Interlocutory applications Parties: WH (Plaintiff) SH (1st Defendant) WK (2nd Defendant) Public Guardian (3rd Defendant) Representation: Counsel: R D Wilson (Plaintiff) P Friedlander (1st Defendant) In Person (2nd Defendant) Solicitors: Stacks/Family Law (Plaintiff) File Number(s): 2013/276747

Judgment 1HIS HONOUR: These proceedings concern the guardianship of the first defendant. In accordance with s 57 of the Guardianship Act 1987, I order that the proceedings be anonymised and be known as "Re H". 2The present application is for the extension up to and including 23 September 2013 of an order made ex parte yesterday by Hallen J restraining the second defendant from removing or causing to be removed the first defendant from the Sir Moses Montefiore Jewish Nursing Home at Randwick and from taking any steps to interfere with her care and residence at that home. The plaintiff seeks the continuation of that order with some modifications. 3The first defendant is 89 years old. She and the plaintiff were married in October 1960. They lived in a home in Edgecliff Road, Woollahra until the first defendant was admitted to the Sir Moses Montefiore Home in Randwick in late January this year. 4The second defendant was appointed as the first defendant's enduring guardian by an instrument dated 16 March 2012. The second defendant gave evidence to the effect that the reason the first defendant moved to the Montefiore Home in Randwick in January this year was because she suffers from dementia and that she was at risk of harm either by falling or through wandering. 5On 21 December 2012, an application was made by four individuals to the Guardianship Tribunal for the appointment of a financial manager and the appointment of a substitute guardian for the first defendant. It is not clear from the material I have, precisely who was sought to be appointed as guardian. The Tribunal made orders on 15 February 2013 dismissing the application for the appointment of the guardian. The Tribunal appointed Mr Martin Fowler as the first defendant's financial manager subject to the authorities and directions ordered by the NSW Trustee and Guardian. Mr Fowler acts as the first defendant's tutor in these proceedings. 6In its reasons for decision, the Tribunal stated that it had heard evidence that there was a difference of opinion about the status of the relationship between the plaintiff and the first defendant. It accepted that the first defendant had at times expressed the opinion that she was separated from her husband (the plaintiff). But the Tribunal also accepted that the plaintiff did not believe that to be the case. The Tribunal observed that since the application was made, the first defendant had been moved to the Montefiore Nursing Home in Randwick and that there was no dispute that this was appropriate accommodation for her needs and she was relatively settled there. 7A decision to move her to that nursing home was made by the second defendant as her enduring guardian. The Tribunal recounted evidence of nursing home staff that they were able to communicate effectively with the second defendant and that one member of the nursing home staff had said that the second defendant had been amazing in terms of the care he had provided. The Tribunal also referred to evidence that the first defendant had a very close relationship with her enduring guardian, but the witness who gave that evidence had observed what she described as harmful behaviour directed towards the first defendant by the plaintiff when they were still living under the same roof. 8The Tribunal said that the current arrangements were working. It said that it was mindful of its obligation to give effect to the first defendant's wishes, by which it presumably meant it was mindful of its obligation to take those wishes into account. It dismissed the application for guardianship orders. 9The first defendant suffered a stroke on 25 August 2013. She is said to have some paralysis on her left side, and is bed-ridden and cannot walk, but needs to use a wheelchair. It appears that she requires full-time assistance for her personal hygiene including dressing, showering, toileting, eating and drinking. After her stroke, she has been moved to a high-level care facility at the nursing home. 10The plaintiff brought these proceedings after his solicitor learned that the second defendant had made arrangements to move the first defendant back to what had been her home in Edgecliff Road, Woollahra. It appears that the plaintiff has since vacated that house. The second defendant gave it as his current residential address, but I understand from his evidence that if the first defendant returns to that house, he would not continue to live there on a full-time basis. As I understood his evidence, this was because the rooms would be needed for nursing care staff whom he has engaged to provide care 24-hours a day, seven days a week. 11The plaintiff was concerned about the plan to move the first defendant. The plaintiff's solicitor gave evidence of having discussed this question with a nursing unit manager at the Montefiore Home. The nursing unit manager advised the solicitor that the first defendant has been classed as needing full assistance and that in his view, if she were to move back to the Edgecliff Road house, her care would be compromised, whereas if she remains in the home, she would have clinical care and allied health care support available 24 hours a day for seven days a week. 12As I have said, yesterday Hallen J made an order to restrain the second defendant from moving the first defendant from the Montefiore Nursing Home. That order was made ex parte and only for a very short time. Further evidence has now been adduced including oral evidence given by the second defendant in relation to that proposal. The second defendant says, as I understand his evidence, that the house in Edgecliff Road has been modified including by the installation of ramps, alteration to the shower arrangements, alteration to the floors, painting and renovations and has been inspected by a representative from the Department of Occupational Health and Safety who has approved the modifications as suitable for the first defendant's return. The second defendant also said that the house had been modified by the provision of hospital beds and a hoist. 13The second defendant has given evidence that the first defendant is unhappy in the Montefiore Home, that she is refusing to eat properly, and that in his view she is not receiving the treatment she should have. This is apparently notwithstanding the fact that, as I understand his evidence, her care in the nursing home is supplemented by nurses on a 24-hours a day, seven days a week basis from an organisation known as Around The Clock Care. 14The second defendant's reason for proposing to move the first defendant is so that she can rekindle her attachment to her cat of which she is very fond, and because she would have a better quality of life in her own house. 15There is some evidence, albeit that I understand it to be disputed, of estrangement between the plaintiff and the first defendant. Indeed, the first defendant, through her financial manager, has instituted proceedings in the Family Court for financial adjustment orders. I infer that this was done at the behest of the financial manager. (One of the reports that was before the Tribunal from a neuropsychologist stated that the first defendant was asked whether there were likely to be any legal matters regarding her husband and her, and she stated not that she was aware of any. That report was provided on 27 December 2012.) 16The decision where the first defendant should reside is a decision for her guardian. The plaintiff in his summons seeks an order to revoke the enduring power appointing the second defendant as guardian and seeks an order that he be appointed as the first defendant's guardian. In the alternative, he seeks an order that the Public Guardian be so appointed. 17Unless there is at least a serious question to be tried that those orders would be made, I do not think it appropriate to continue the existing injunction that suspends the important power of the second defendant as the first defendant's enduring guardian. 18On the basis of the evidence before me today on this application, which I emphasise is likely to be quite incomplete, I am not satisfied that the plaintiff has shown that there is a serious question to be tried that the plaintiff would be entitled to the orders for the change of guardianship that he seeks. 19That is so essentially for four reasons. The first is that the Tribunal has already determined just such an application in only February this year. There was no application filed pursuant to s 67 of the Guardianship Act for leave to appeal from the Tribunal's decision. That does not preclude a separate application being made to this Court for the appointment of a new guardian in place of the second defendant. But I think exceptional circumstances would have to be shown, or a material change of circumstances, before this Court, in the exercise of its jurisdiction in guardianship matters, would substitute its decision for that of the Tribunal. If that were not so, the filter provided for by s 67 of the Guardianship Act requiring a grant of leave before there can be an appeal (otherwise than on a question of law) from a decision of a Tribunal appointing a guardian, would be rendered virtually useless. As the cases on s 67 and the parens patriae jurisdiction generally show, the scheme of the Guardianship Act is that the Tribunal is to be the body entrusted with the primary task of deciding questions of guardianship. Hence, speaking generally, leave to appeal from a decision of the Tribunal would not be given unless the decision involves important questions of administration, or it appears that the Tribunal has gone about the fact-finding process in such an unorthodox manner, or in a way likely to produce an unfair result, that is in the interests of justice for the decision to be reviewed. (See generally K v K [2000] NSWSC 1052 at [14] and [15], and EB v Guardianship Tribunal [2011] NSWSC 767 at [194]-[199].) 20The second reason is that there is material adverted to albeit somewhat obliquely in the Tribunal's reasons, but set out in more detail in affidavits prepared for the Family Court proceedings, that if accepted, would cast serious doubt as to the suitability of the plaintiff to be appointed as the first defendant's guardian. This includes evidence from third party carers. 21The plaintiff has not had the opportunity on this application to respond to that material. But if not answered, it would make it extremely unlikely that the plaintiff would be appointed as guardian. 22Thirdly, the Public Guardian could only be appointed as guardian if there is no-one else who is suitable to be so appointed and who is willing to act. (See s 15(3) of the Guardianship Act.) The Tribunal accepted that the second defendant was a suitable person to be so appointed. 23Hence, the plaintiff's prospects of achieving an order for a change of guardian would seem to turn on the consequences of his making and proposing to implement the proposal that the first defendant move home. 24Counsel for the plaintiff says that that is not a decision in the first defendant's best interests, and is a reason as to why it can now be seen that the second defendant is not likely in the future to act in the first defendant's best interests. But on the material adduced on the application to date, that is very much a matter of judgment. 25Because the proceedings only started yesterday I do not have in any documentary form the proposals for what might be described as a "care plan" for the first defendant on her return home. But if the house has been modified in the way described by the second defendant (and he has given evidence on oath of those modifications) and if twenty-four hour nursing care is provided to her seven days a week as the second defendant says has been arranged, I think the second defendant could quite reasonably take the view that the first defendant's quality of life will be enhanced by her coming back to her own house and out of an institutional environment, and by returning to the company of her cat to which she is said to be attached. 26The second defendant explains that the reasons it was necessary for the first defendant to leave that house in January this year no longer apply. She is now not capable of wandering nor walking in a way which would make her susceptible to injury from falls. 27In my view, the current situation is just the kind of situation that the first defendant must have contemplated when she made the decision last year to appoint the second defendant as her enduring guardian. 28On the material before me, I do not think it likely that the second defendant's decision would lead to the Court's removing him as guardian. I do not think that it has been shown that it would be in the best interests of the first defendant for the Court to substitute its opinion on the papers, such as they are, for the second defendant's opinion. He has full knowledge of the first defendant's circumstances. His good faith is not impugned on this application. 29For these reasons, I decline to extend the injunctive relief granted by Hallen J on 12 September 2013. I will stand the amended summons over to the Protective List judge on 23 September 2013, and I will hear the parties on costs and as to any other orders that any party might seek. [Parties address on costs.] 30I reserve the question of costs. 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: 20 September 2013