NSW Civil and Administrative Tribunal New South Wales Medium Neutral Citation: QNE [2014] NSWCATGD 10 Hearing dates: 3 April 2014 Decision date: 03 April 2014 Jurisdiction: Guardianship Division Before: Redfern J, Principal Member Martin K, Senior Member (Professional) Johnston S, General Member (Community) Decision: Limited guardianship order made for a period of six months; Public Guardian appointed with accommodation, health care, medical and dental consents, services and access. Catchwords: GUARDIANSHIP - young person - family conflict - previous Family Court order - best interests. PROCEDURAL FAIRNESS - opportunity to give evidence - adjournment requested - adjournment refused - best interests - confidential evidence. Legislation Cited: Guardianship Act 1987 (NSW) Cases Cited: C S, M Y v the Guardianship Tribunal, Public Guardian Supreme Court (NSW), Windeyer J, 29 November 1999, unreported. Category: Principal judgment Parties: Mr QNE Ms TAS (Applicant) Mr NCE (Carer) The Public Guardian File Number(s): 55935 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)). REASONS FOR DECISION WHAT THE TRIBUNAL DECIDED 1The Tribunal appointed the Public Guardian as Mr QNE's guardian for a period of six months to make decisions on his behalf about his accommodation, health care, medical and dental treatment, the services which he should receive and his access to others. BACKGROUND 2Mr QNE is an 18 year old young man with intellectual disability. He resides mainly with his mother, Ms TAS, and twin sister, Miss CBE, in Southern Sydney. Mr QNE spends alternate weekends with his father, Mr NCE and older brother, Mr BCE, who also resides in Southern Sydney. Ms TAS and Mr NCE are separated and it is common ground their relationship is acrimonious. 3On 2 September 2011, the Family Court made orders relating to the care and parental responsibility for their three children. Under the orders, Ms TAS was given sole parental responsibility for the decisions about Mr QNE's health, education and extracurricular activities. It was also noted that Mr QNE was to live with Ms TAS but was to spend alternate weekends, Father's Day and part of the school holidays and his birthday with Mr NCE. 4On 26 March 2014, the Tribunal received an application from Ms TAS, seeking urgent orders that she be appointed as guardian for Mr QNE. 5In her application Ms TAS stated she was given sole parental responsibility by the Family Court which expired on 23 March 2014, when Mr QNE turned 18 years of age. She contended that Mr NCE removed Mr QNE from school on 24 March 2014 without consulting her and that Mr QNE was upset by this action. Ms TAS stated that she had made the application because of concerns she has no authority to provide full-time ongoing care to Mr QNE or to make decisions for him about his care. There is dispute between Ms TAS and Mr NCE about care, accommodation and access. Ms TAS proposed herself as guardian. 6Mr NCE disputes this contention. Mr NCE is of the view Ms TAS is trying to limit his access to Mr QNE. He opposes Ms TAS' application and proposed himself as guardian. 7This matter was listed for hearing on an urgent basis. THE HEARING 8At the end of these Reasons for Decision are lists of the parties to the application and witnesses who attended the hearing. [Appendix removed for publication] 9There was no dispute between Ms TAS and Mr CNE that their son, Mr QNE, has an intellectual disability and was, at least partially, unable to make important decisions for himself. It was common ground that there were significant disputes between them in relation to decision making for Mr QNE. These matters could not be resolved informally between them and in consultant with Mr QNE. As such, they agreed there was need for a substitute decision-maker in respect of decisions relating to their son's accommodation, health care, medical and dental treatments and the services he receives. There was also significant dispute about access. The key issue in dispute was as to who should be appointed as guardian for Mr QNE. 10At the closing stages of the hearing, after hearing evidence and submissions from the parties, Mr NCE requested an adjournment of the proceedings to present further evidence. Mr NCE had already presented medical reports and detailed written submissions about his position, including a proposed care plan for Mr QNE. Mr NCE was given the opportunity to present and explain these matters during the hearing, which he did. Mr NCE was unable to identify the further information or evidence that he would seek to obtain relevant to the issues in dispute, other than an unsubstantiated allegation about possible abuse. 11Having regard to the increased level of conflict between Ms TAS and Mr NCE since Mr QNE's 18th birthday and evidence the conflict was likely to continue and possibly escalate, the Tribunal determined that it was not in Mr QNE's best interests for the proceedings to be adjourned. The Tribunal also had regard to the fact that Mr NCE had sufficient opportunity to provide written submissions and evidence prior to the hearing, was given further opportunity to give evidence and make oral submissions during the hearing and was unable to identify any particular evidence that may assist the Tribunal or support his contentions. The issue of concern raised by Mr NCE about possible abuse, while unsubstantiated, nonetheless further demonstrated urgent need for determination of the issues in dispute. 12In summary, Mr NCE was unable to present a compelling reason why the proceedings should be adjourned, Ms TAS opposed the adjournment and the Tribunal was not satisfied that it was in Mr QNE's interests. The hearing proceeded and, after considering the submissions on the evidence, the Tribunal made a guardianship order for six months. THE EVIDENCE 13The Tribunal was provided with the following reports: (a)Report dated 2 April 2014 from Ms Z, child and adolescent psychologist; (b)A report dated 9 May 2003 from Dr Y; (c)Report dated 4 September 2013 from Dr X, neurologist; (d)Reports dated 24 August 2012, 12 October 2012, 25 January 2013, 12 April 2013, 12 July 2013, and 27 September 2013 from Dr W, neurologist; (e)A health professional report dated 25 March 2014 from Dr V, together with a report a written report of the same date; (f)A report dated 31 May 2011 from Ms U, school counsellor and registered psychologist; (g)A psychological evaluation report dated 27 February 2014 from Mr T; and (h)A report dated 22 August 2011 from an occupational therapy and speech therapy service provider. 14In addition, the Tribunal was provided with discharge notes from a public hospital, copies of photographs, apparently of Ms TAS taken in in 2004, a written statement from Mr BCE and a written statement from Mr NCE dated 1 April 2014, together with annexures comprising the reports referred to in (b) and (g) above and a proposed plan for Mr QNE. 15Ms TAS provided the Tribunal with a statement in support of her application, a copy of the Family Court orders, the reasons for decision of his Honour, Justice Watt, in the Family Court and a confidential report from a court-appointed expert. Given the report was confidential and there was no consent for the report to be disclosed to or used by this Tribunal, the Tribunal did not have regard to or read this expert report. 16The reasons of the Family Court are particularly relevant to the issues in dispute in these proceedings. While the Family Court proceedings involved disputes about parental responsibility, it is clear from the reasons of Justice Watt that there was significant discord between Ms TAS and Mr NCE to such an extent that his Honour raised concerns about the best interests of their children and what was described in the catchwords of the decision as "destructive parental conflict." Relevantly, Watt J observed as follows: The principal issues relate to what parenting order should be made in relation to [Mr QNE], who has been diagnosed as being 'globally delayed', should spend with each of the parties. Very unusually, the parties and the Independent Children's Lawyer at the commencement of the hearing stated that it was agreed that there was no effective communication between the parties about the children. I find that such a situation is unlikely to change in the foreseeable future. This is one of the worst cases I have ever had before me involving two motivated parents. It is a tragic case where two sincerely committed parents have such different parenting styles and a total inability to cooperate, leading to circumstances where the eldest child is emotionally damaged and spends time with one parent only, their daughter also spends time with one parent only, and where the parents have great difficulty co-managing the profound disability of their third child. Both parents have little insight into the part they have played in achieving this outcome. 17In their evidence before this Tribunal, both Ms TAS and Mr NCE confirmed that little had changed since the Family Court orders were made in September 2011. There was still dispute and acrimony and no effective communication. 18This is evidenced by the events that took place on Mr QNE's birthday. According to Ms TAS, under the Family Court orders Mr QNE was to spend from 3 pm until 7:30 pm on the day of his birthday with her. Mr NCE did not deliver Mr QNE to her home until 4:30 pm. Ms TAS decided, and said she informed Mr NCE, that she would therefore return Mr QNE later than proposed by the court orders, namely by 9 pm. This was done and Mr QNE stayed with his father until the following morning, when he was taken to school. Mr NCE collected Mr QNE from school without first consulting her. Mr QNE stayed with his father until the following night. Ms TAS said that she was not notified of this and Mr QNE was very anxious about being taken out of his routine and not having clean school clothes to wear the next day. Mr NCE conceded he had not specifically forewarned Ms TAS he would be taking Mr QNE home from school but said Mr QNE wanted to spend extra time with him. Both Ms TAS and Mr NCE agreed that as a result of the conflict on the day and following, Mr QNE did not have a good birthday. Mr QNE expressed concerns about the events over those few days. WHAT DID TRIBUNAL HAVE TO DECIDE? 19The questions which had to be decided by the Tribunal were: * Is Mr QNE someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? * Should the Tribunal make a guardianship order and if so, what order should be made? * Who should be the guardian? * How long should the order last? Is Mr QNE someone for whom the Tribunal could make an order because he has a disability which prevents him from being able to make important life decisions? 20Section 14 of the Guardianship Act 1987(NSW) ('the Guardianship Act') provides that the Tribunal may make a guardianship order for a person if it is satisfied that he/she is "a person in need of a guardian." A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person" (section 3(1), Guardianship Act). A person with a disability is a person who is: (a)intellectually, physically, psychologically or sensorily disabled; (b)of advanced age; (c)a mentally ill person within the meaning of the Mental Health Act 2007 (NSW);or (d)otherwise disabled; and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation (section 3(2), Guardianship Act). 21Based on the evidence contained in the various reports provided to the Tribunal, the Tribunal is satisfied that Mr QNE has a disability which prevents him making important life decisions. As such, he is a person for whom the Tribunal could make a guardianship order. Mr QNE has a diagnosis of global developmental delay and moderate intellectual disability. According to Mr T, Mr QNE's full scale IQ score fell within the extremely low range as did his cognitive assessment system (CAS) and adaptive functioning scores. This assessment is consistent with the reports of Mr QNE's treating psychologist, Ms Z, the opinion of his general practitioner, Dr V, reports from his neurologists (Dr W and Dr X) and the report from the occupational therapy and speech therapy service provider. Should the Tribunal make a guardianship order and what order should be made? 22There is evidence that decisions need to be made in respect of accommodation, services, health care, medical and dental treatment and access. Unfortunately, decision making for Mr QNE cannot be made through informally means, by agreement between Ms TAS and Mr NCE in consultation with him, which would be the least restrictive outcome. There was further evidence that it is in Mr QNE's best interests for an order to be made to resolve the ongoing dispute between his parents about his care and accommodation. Mr NCE disputes the present living arrangements and would like Mr QNE to live with him. Ms TAS opposes such a decision. There is evidence the ongoing dispute between Mr QNE's parents is causing him anxiety and even though he did not express a view about the order, it was clear to the Tribunal that Mr QNE wished to continue living with Ms TAS and his sister, Miss CBE. He told the Tribunal this on a number of occasions. 23When considering whether or not to make a guardianship order in respect of the person, the Tribunal must have regard to the matters referred to in section 14(2) of the Guardianship Act. Relevant to the circumstances of this case, the Tribunal must have regard the views of Mr QNE, the views of any person who has care of Mr QNE, namely Ms TAS and Mr NCE, the importance of preserving Mr QNE's existing family relationships and the practicability of services being provided Mr QNE without the need to making such an order. The Tribunal must also consider the General Principles set out in section 4 of the Guardianship Act, which provide, amongst other things, that "the welfare and interests of the person with a disability should be given paramount consideration." 24Mr QNE did not express a view about whether a guardianship order should be made. The Tribunal formed the view, which was consistent with the medical reports, that he did not have an appreciation of the nature of the proceedings and the issues to be determined. Mr QNE's views therefore do not weigh in favour or against the making of an order. Ms TAS and Mr NCE agree that an order should be made, the only difference between them being the question of who should be appointed. It is clear that services cannot be provided to Mr QNE without an order because of the dispute between his parents. The Tribunal also had regard to Mr QNE's existing family relationships and formed a view that a guardianship order, with the appointment of an independent third-party, may assist to preserve the somewhat fractured but ongoing relationships between Mr QNE and his parents and siblings. 25Having regard to all of this evidence and the relevant considerations under sections 4 and 14(2) of the Guardianship Act, the Tribunal decided that a guardianship order should be made, with decision making functions in respect of accommodation, services, health care, medical and dental treatment and access. Who should be the guardian? 26The Tribunal is not able to appoint the Public Guardian as a person's guardian if there is a private person who can be appointed. 27There is a proposal that by both of Mr QNE's parents that they should each be appointed guardian for Mr QNE. The Tribunal has to be satisfied that any person appointed as a private guardian meets the following requirements in accordance with section 17 of the Guardianship Act. He/she must: * have a personality generally compatible with the personality of the person under guardianship; * have no undue conflict of interest (particularly financial) with those of the person; and * be able and willing to exercise the functions of the order. 28In deciding whether a person is able to undertake the role of guardian, the Tribunal must consider whether the proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in section 4 of the Guardianship Act (per C S, M Y v the Guardianship Tribunal, Public Guardian Supreme Court (NSW), Windeyer J, 29 November 1999, unreported). 29The Tribunal is not satisfied that either Ms TAS or Mr NCE should be appointed guardian for Mr QNE in the circumstances of the case. Both are willing to exercise the functions but the Tribunal is not satisfied either would be able to appropriately exercise those functions in Mr QNE's best interests. 30It is common ground Ms TAS and Mr NCE do not communicate effectively, or at all. As noted by Watt J in the Family Court proceedings, Ms TAS and Mr NCE have "great difficulty co-managing the profound disability" of Mr QNE. They cannot consult with each other about decision making, yet consultation is critical to the appropriate discharge of the functions of a guardian in a case such as this, given both parents are involved in Mr QNE's care. Ms TAS and Mr NCE were described by Watt J as "two sincerely committed parents". There is no dispute that both are involved with Mr QNE on an ongoing basis and there is a close relationship. There is nonetheless evidence Mr QNE is anxious about the conflict between his parents and this anxiety has the potential to cause significant detriment, as outlined in the report from Ms Z. Ms TAS and Mr NCE cannot agree about accommodation, health care and how best to provide for their son's significant and complex medical needs. The appointment of one or other of them at this stage is likely to exacerbate the continuing conflict between them and therefore the negative impact on Mr QNE. 31Ms TAS expressed concerns about her ability to continue as primary carer for Mr QNE given the current dispute and what both parties consider to be the expiry of the Family Court orders now Mr QNE is an adult. The orders are not expressed to be so limited but we accept they were intended to cover care and parental responsibility for the children of Ms TAS and Mr NCE, including Mr QNE, until they became adults. The role of the Family Court, amongst other things, is to settle these disputes and to allocate responsibility for custody, care and decision making for children before they reach adulthood. This Tribunal has a different role and is a protective jurisdiction for people with disability regardless of age. It is also important to distinguish the role of a guardian from that of a carer. It is the role of a guardian to make important life decisions for the person who is the subject of the guardianship order, not to provide care or implement the practical aspects of those decisions. As already noted there is dispute about decision making for Mr QNE and it is in his best interests for this dispute to be resolved authoritatively without creating further conflict and anxiety for him. There is no criticism of the care being provided but rather the anxiety and lack of certainty created by the current conflict, which will remain unresolved without formal orders. 32For this reason, the Tribunal decided not to appoint Ms TAS or Mr NCE and decided to appoint the Public Guardian. In making this order, the Tribunal does not make any adverse finding about the care currently being provided to Mr QNE, other than to note that the preponderance of evidence is to the effect that Mr QNE is well cared for, appears to be receiving appropriate health care and medical treatment (despite dispute about medication for incontinence) and is happy in his present accommodation. How long should the order last? 33An initial guardianship order can be made for a period of up to one year from the date on which it was made. However, an order of up to three years can be made, if the person the subject of the order has permanent disabilities, is unlikely to become capable of managing his or her person and there is the need for an order longer than one year. 34The Tribunal decided to make an order for six months to ensure there is sufficient opportunity for decisions to be made about the more contentious issues and for the parties and the Public Guardian to assess whether informal decision making or less restrictive order may be workable. ********** 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: 19 August 2014