CKL v Public Guardian [2016] NSWCATAD 216

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: CKL v Public Guardian [2016] NSWCATAD 216 Hearing dates: 27 April 2016, 3 August 2016 Date of orders: 29 September 2016 Decision date: 29 September 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: J Anderson, Senior Member Decision: The decision of the Public Guardian is affirmed Catchwords: ADMINISTRATIVE LAW – person under guardianship - review of decision of Public Guardian that person be accommodated with a family member – correct and preferable decision – welfare and interests of person to be given paramount consideration Legislation Cited: Guardianship Act 1987 (NSW) Guardianship Regulation 2010 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 Category: Principal judgment Parties: CKL (Applicant) CSP (Joined Party) Public Guardian (Respondent) CSQ (Joined Party) CST (Joined Party) Representation: M Neville (Respondent)

Solicitors: CKL (Applicant) CSP (In person) CSQ (In person) CST (In person) Crown Solicitor's Office (Respondent) File Number(s): 1610052 Publication restriction: Section 64 of the Civil and Administrative Tribunal Act 2013 applies.

REASONS FOR DECISION 1. The person under guardianship, Mr OS, is a 71 year old man who has cognitive impairment as a result of chronic alcoholism. He is separated from his wife, Mrs S, and has five adult children, Mr CSQ, Dr CSP, Mr CST, Ms FS and Mr CKL, the latter of whom is the applicant in these proceedings. 2. On 1 October 2015 in its Guardianship Division, the Tribunal made a guardianship order, appointing Mr CSQ, the Applicant and Dr CSP and the Public Guardian as the guardians of Mr OS with separate functions. Mr CSQ, the Applicant and Dr CSP were appointed jointly as guardians with the authority to make decisions about Mr OS' health care, medical and dental treatment and the services he should receive. The Public Guardian was appointed as guardian with the authority to make decisions about Mr OS' accommodation, including the exercise of a coercive power. 3. In November 2015, the Public Guardian made a decision with respect to Mr OS' accommodation, namely, that Mr OS reside with his son, Mr CSQ, in the home of Mr CSQ and his family. 4. On 3 December 2015, the Applicant sought an internal review of the Public Guardian's decision, and on 24 December 2015, the original decision of the Public Guardian was upheld on review. 5. On 25 January 2016, the Applicant submitted an application to the Administrative Review and Equal Opportunity Division of this Tribunal, seeking review of the Public Guardian's decision. 6. The application was listed for hearing on 27 April 2016. On that occasion, the Tribunal joined Dr CSP as a party to the proceedings. The Tribunal heard evidence, and on the application of the Respondent, the hearing was adjourned to enable further evidence to be obtained and to invite Mr CSQ to be joined as a party to the proceedings. 7. On 24 May 2016, at a directions hearing, Mr CSQ and Mr CST were joined as parties to the proceedings, and orders were made for the filing and serving of evidence. 8. On 3 August 2016, the matter was listed for hearing. On that occasion, the Applicant, Dr CSP, Mr CSQ and Mr CST attended and participated in the proceedings. 9. It is noted that Mr OS has a spouse, Mrs S. However, they are separated and living apart. Mr OS has a prior conviction for the assault of Mrs S and is subject to a good behaviour bond. In addition, there is an apprehended violence order in place which places restrictions on Mr OS' ability to approach Mrs S. Mrs S attended the Tribunal hearing on 3 August 2016. She did not seek to be joined as a party, nor did she wish to give evidence during the hearing. She made a brief submission which is referred to in later paragraphs of these Reasons. 10. Mr OS did not participate in the proceedings on 27 April 2016. However, during the latter stages of the proceedings on 3 August 2016, Mr OS attended the hearing and an Arabic interpreter was made available to assist him. Mr OS did not wish to give evidence but made brief submissions which are referred to in later paragraphs of these Reasons.