Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZCD v ZCE [2016] NSWCATAP 265 Hearing dates: 6 July 2016 Date of orders: 14 December 2016 Decision date: 14 December 2016 Jurisdiction: Appeal Panel Before: C Fougere, Principal Member A Boxall, Senior Member A Lowe, General Member Decision: 1 In proceedings ZCD v ZCE, ZCF, and Public Guardian (AP 16/19848), the appeal is allowed; 2 The orders of the Guardianship Division made on 23 February 2016 are set aside but not until the time that the Guardianship Division re-determines ZCE's application for a guardianship order in relation to ZCF; 3 The application for a guardianship order is to be reconsidered by the Tribunal with further evidence. Catchwords: APPEAL – appellant appointed as enduring guardian for second respondent– guardianship order made appointing Public Guardian with access and services functions – no adverse findings in relation to appellant – failure to provide adequate reasons for inclusion of services function in guardianship order and appointment of Public Guardian in relation to services function – appeal upheld – application to be reconsidered with further evidence. Legislation Cited: Civil and Administrative Tribunal Act 2014 (NSW), sch 6, cl 5(1), s 41, , 62(3), 80(3)(a), 81 Guardianship Act 1987 (NSW), ss 3, 4, 4(a), 4(e), 6I, 14(1), 14(2), 14(2)(b), 14(2)(c), 14(2)(d), 15(3), 16, 16(1)(c), 16(2), 16(2)(b), 16(3), 17(1), 17(1)(c), 32(4) Civil and Administrative Tribunal Rules 2014 (NSW), r 13, 13(4), 25(4)(c) Cases Cited: BZE v NSW Public Guardian [2015] NSWCATAP 64 C S and M Y v Guardianship Tribunal and Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep Collins v Urban [2014] NSWCATAP 17 House v The King [1936] HCA 40; 55 CLR 499 IF v IG [2004] NSWADTAP 3 Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 John Prendergast & Vanessa Prendergast v Western Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Murray Irrigation Ltd [2014] NSWCATAP 69 Neill v Not [1994] HCA 23 Pollard v RRR Corp [2009] NSWCA 110 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Texts Cited: Nil Category: Principal judgment Parties: ZCD (Appellant) ZCE (First Respondent) ZCF (Second Respondent) Public Guardian (Third Respondent) Representation: ZCD – In person ZCE – In person ZCF – Ms Betty Weule (Guardian ad litem) Public Guardian – No appearance File Number(s): AP 16/19848 Publication restriction: Disclosure of the names of the appellant, the first respondent and second respondent is prohibited. A reference to the name of a person includes a reference to any information, picture or any other material that identifies the person or is likely to lead to the identification of the person. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: Not applicable Date of Decision: 23 February 2016 Before: W Tearle, Senior MemberL Tong, Senior MemberJ Cootes, General Member File Number(s): C/60675 REASONS FOR DECISION Introduction 1. This is an appeal against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal (the Tribunal) on 23 February 2016 in relation to ZCF. 2. ZCF is a 79-year-old woman of Russian background who lives in her own home with one of her sons, ZCD (the appellant). She has one other son, ZCE (the first respondent). 3. The evidence before the Tribunal below, and it was not in dispute in these appeal proceedings, is that ZCF's decision-making capacity is impaired as she has dementia. 4. In these reasons, given ZCF's central role in these proceedings, we will refer to her children by way of their relationship to ZCF. ZCD will be referred to as the "elder son". ZCE will be referred to as the "younger son". 5. On 16 September 2011, ZCF appointed her elder son as her enduring guardian with the functions of services, accommodation, healthcare, and authority to provide consent to medical and dental treatment. On the same date, ZCF appointed the elder son as her attorney pursuant to an enduring power of attorney. 6. In September 2015, the younger son applied to the Tribunal seeking the appointment of a guardian and financial manager for his mother under the Guardianship Act 1987 (NSW). 7. The hearing of the application took place on 11 January 2016 and 23 February 2016. At the conclusion of the hearing on 23 February 2016, the Tribunal reserved its decision and then made decisions on the same date: * dismissing the application for a financial management order; and * making a 12-month guardianship order that appointed the Public Guardian as ZCF's guardian with the following functions: * Access – To decide what access ZCF has to others and the conditions of access * Services – To make decisions about services to be provided to ZCF. 1. The elder son appealed against the decision to make the guardianship order. 2. For the reasons set out below, we have decided to allow the appeal, to set aside the Tribunal's decision to make a guardianship order and direct the Tribunal to reconsider the whole of the application for guardianship with further evidence. Internal appeal proceedings 1. The hearing of the appeal took place on 6 July 2016. 2. ZCF was represented by a guardian ad litem (GAL), Mrs Betty Weule. The GAL submitted that the appeal should be dismissed. 3. Both the elder and younger son appeared in person at the hearing. Although leave had been granted at an earlier callover date for both parties to be legally represented in the appeal proceedings, neither party was legally represented at the appeal hearing. 4. The Public Guardian did not take part in the appeal. Extension of time 1. An internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)": Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(c). The Tribunal may extend the time for the lodgment of an appeal: Civil and Administrative Tribunal Act 2014 (NSW) (CAT Act), s 41. 2. The Guardianship Division's file records that the Reasons for Decision were posted to the elder son on 18 March 2016. Rule 13 of the NCAT Rules applies to the "service, giving and lodgment of notices or documents". Pursuant to the "posting presumption rule" in r 13(4), the elder son is taken to have been given the reasons on 24 March 2016, the fourth working day after the letter was posted. The Notice of Appeal was stamped as having been filed on 26 April 2016. As it should have been lodged within 28 days (that is, by 21 April 2016) it was therefore five days late. 3. In seeking an extension of time, the elder son wrote in the Notice of Appeal that on 20 April 2016 (which was within the 28-day period) he attended at the former premises of the Guardianship Division located in Balmain in order to hand deliver the appeal documents only to discover that the Tribunal had relocated to the city. Although he then travelled into the city that same afternoon, he was unable to file the documents at the Tribunal's city premises as he had his mother with him and there was no accessible parking available at the time. At the hearing of the appeal, the elder son appeared to suggest that he had in fact been able to file the documents on that day but could not explain the reason for the NCAT date stamp recording the date of filing as 26 April 2016. In any event, neither the younger son nor the GAL objected to the elder son's request for an extension of time. 4. Given the relatively short delay in filing the Notice of Appeal, the reasons given by the elder son for the delay and his efforts to file the documents within the 28-day period, the lack of any objection by the other parties to the request for an extension of time and the arguable nature of the elder son's case (Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]), we extended the time within which the elder son could bring the appeal. Relevant legislation 1. Under s 6I of the Guardianship Act, (1) A guardianship order made in respect of a person who has appointed an enduring guardian operates to suspend, for the duration of the order, all authority of the enduring guardian to exercise a function under the appointment. … 1. The Tribunal may make a guardianship order for a person under s 14(1) of the Act if it is satisfied that the person is a "person in need of a guardian". Section 3 defines a "person in need of a guardian" as a "person who, because of a disability, is totally or partially incapable of managing his or her person". 2. The power to make an order is discretionary but in considering whether or not an order should be made, the Tribunal must have regard to the matters set out in s 14(2) which provides as follows: 14 Tribunal may make guardianship orders … (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. 1. Under s 16 of the Guardianship Act, amongst other things, a guardianship order shall specify whether the order is plenary or limited (s 16(1)(c)). Under s 16(2)(b), a limited guardianship order (which was the type of order made in relation to ZCF) shall specify which of the functions of a guardian the guardian shall have in respect of the person under guardianship. 2. When considering who to appoint as a guardian, the Tribunal may not appoint the Public Guardian in circumstances in which a guardianship order can be made appointing some other person as guardian (Guardianship Act, s 15(3)). 3. Under s 17(1) of the Guardianship Act, a person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order. … 1. Under s 16(3) of the Guardianship Act Two or more guardians of a person may be appointed under one or more limited guardianship orders, either jointly (each having the same functions) or separately (each having different functions). However, the Public Guardian is not to be appointed a joint guardian. 1. When "exercising its Division functions for the purposes of the Guardianship Act in relation to persons who have disabilities", the Tribunal is under a duty to observe the principles referred to in s 4 of the Guardianship Act (CAT Act, sch 6, cl 5(1)). 2. Under s 4, it is the duty of everyone exercising functions under the Guardianship Act with respect to persons who have disabilities to observe the following principles: (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. Tribunal's decision 1. In its written reasons for decision, the Tribunal identified the issues it needed to determine in relation to the application for a guardianship order as follows (at [38]): Before the Tribunal may make a guardianship order, it must be satisfied that: [ZCF] is a person with a disability within the meaning of the Guardianship Act; because of that disability/those disabilities, [ZCF] is totally or partially incapable of managing her person; and there is a need for a guardianship order to be made in relation to [ZCF]. 1. The Tribunal was satisfied as to the first two matters and those findings were not subject to appeal. 2. In relation to the question of whether there was a need for a guardianship order to be made, the written reasons state the following (at [47]-[49]): 47 [ZCF] did not express a clear view as to whether or not she wished or needed to have a guardian formally appointed. During the earlier hearing on 11 January 2016, [ZCF] stated that there is no-one whom she would trust to make decisions on her behalf, or to speak to her doctor on her behalf. 48 The Tribunal concluded that [ZCF] is in need of a guardian. The reasons for the Tribunal's decision appear below in the context of the discussion of the functions of the guardian. 49 In reaching its decision, and to the extent to which this was possible, the Tribunal also took account of the matters outlined by Parliament in section 14 of the Guardianship Act 1987, and in particular: the views of [ZCF], and of her carer, [her elder son]; the importance of preserving [ZCF]'s existing family relationships; the importance of preserving [ZCF]'s particular cultural and linguistic environments; and the practicability of services being provided to [ZCF] without the need for the making of such an order. 1. The reasons for the inclusion of a services function in the order are set out at at [50]-[53] as follows: Services 50 As was noted above, [Associate Professor [Y] recorded in his written report that [ZCF]'s personal care "leaves a lot to be desired". [The elder son] acknowledged that showering is "the biggest problem" with [ZCF]'s care, and he said that [X] (a former registered nurse) has assisted [ZCF] with showering. [The elder son] added that there are no Russian-speaking community services in Sydney. 51 [The younger son] insisted that it was important to obtain suitable services for [ZCF], regardless of the religious affiliation, if any, of the service provider. 52 Ms [X], Principal Guardian with the Office of the Public Guardian, submitted that [ZCF] needs a guardian to ensure that she has access to services, particularly relating to assistance with her activities of daily living, including showering. 53 The Tribunal accepted the concerns highlighted by Associate Professor [Y], and decided that [ZCF] now needs to have a guardian with the authority to make decisions about the services she is to receive. 1. In relation to the issue of "Access", the following reasoning was provided (at [54]-[59]): Access 54 During the hearing on 11 January 2016, [the younger son] claimed that [the elder son] had limited their mother's ability to have contact with [the younger son], and with [the younger son's] children. Specifically, [the younger son] claimed that [the elder son] had blocked contact between their mother and [the younger son] over the past 12 months. [The younger son] also claimed that [the elder son] had refused to answer the door or the telephone. At other times, according to [the younger son], [the elder son] acts as a filter to his telephone calls to his mother. [The younger son] claimed that he had only been able to see [ZCF] on four or five occasions over the past 12 months. 55 [The elder son] insisted that he has not denied anyone access to [ZCF]. However, [the elder son] conceded that, on 1 June 2015, he had barred [the younger son] from entering [ZCF]'s unit. [The elder son] stated that, apart from that one occasion, he has not prevented [the younger son] from visiting their mother. 56 [The younger son] and [the elder son] each indicated during the hearing on 11 January 2016 that they could see some merit in appointing a guardian to make decisions concerning access arrangements for their mother. However, following that earlier hearing, [the elder son] wrote to the Tribunal, claiming that he had not supported the appointment of an independent guardian "since no evidence has been provided for a need". 57 Ms [X] submitted on behalf of the Public Guardian that, if [ZCF] wanted access to each of her sons, it would be in her best interests to have an independent guardian to make decisions about access arrangements. 58 The Tribunal accepted the advice of the Public Guardian, and determined that it will be very much in [ZCF]'s interests to have a guardian with the authority to make decisions about who should visit or have other contact with her, including decisions about where, when and how such contact should occur. 59 In reaching its decision, the Tribunal gave proper weight to the consideration that, without a guardian with an access function, disputes would soon resume within the family on the question of access. 1. In its discussion of who to appoint as ZCF's guardian, the Tribunal made reference to relevant provisions in the Guardianship Act (ss 15(3) and 17(1) – see [22]-[23] above) and then provided its reasons for the appointment of the Public Guardian (at [84]-[89]). Appeal framework 1. The decision under appeal in this matter is an "internally reviewable decision": CAT Act, ss 4 and 32(4). A party may appeal an internally reviewable decision on any question of law or with the leave of the Appeal Panel on any other ground: CAT Act, s 80(2)(b). 2. Section 81 of the CAT Act sets out the orders that may be made on appeal: 81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when varying, or making a decision in substitution for, the decision under appeal. Notice of Appeal 1. In support of the appeal, the elder son filed a Notice of Appeal, all of the evidence submitted to the Tribunal, an audio CD of the Tribunal hearings on 11 January 2016 and 23 February 2016 and a copy of the written reasons for decision of the Tribunal of 23 February 2016 which had been annotated by the elder son. 2. The elder son did not provide any additional written submissions in support of the appeal. At the appeal hearing, he confirmed that the contents of the Notice of Appeal and the annotated reasons for decision were all of the written submissions that he wished to make. 3. Under the heading "Grounds of appeal", the elder son provided approximately three pages of written submissions (separated into four sections) setting out an explanation of why he believed that the Tribunal made errors in its decision making. Does the appeal raise a question of law? 1. In John Prendergast & Vanessa Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69, at [13] to [18], the Appeal Panel gave several examples of questions of law including: * whether the Tribunal failed to take into account a relevant consideration which the decision maker was bound to take into account; * making a finding for which there is no evidence; * whether there has been a failure to provide adequate reasons; * whether the Tribunal identified the wrong issue or asked the wrong question; * whether a wrong principle of law had been applied; * whether there was a failure to afford procedural fairness; and * whether the decision is so unreasonable that no reasonable decision maker could make it 1. As the appellant was unrepresented, the Appeal Panel assisted him to define his grounds of appeal (Neill v Not [1994] HCA 23). 2. We were able to discern the following grounds of appeal from the elder son's material: 1. The Tribunal should not have made a guardianship order as the elder son was already appointed as [ZCF]'s enduring guardian; 2. The Tribunal failed to take into account the mandatory consideration set out in s 14(2)(d) of the Act that requires it to consider the practicability of services being provided without the making of a guardianship order; 3. The Tribunal should not have placed weight on the importance of preserving the person's existing family relationships under s 14(2)(b) of the Guardianship Act; 4. The Tribunal's reasons were inadequate in relation to the finding that a services function should be included in the order and in relation to the appointment of the Public Guardian in relation to this function; 5. The Tribunal failed to properly take into account the elder son's suitability for the role of guardian; 6. The Tribunal breached the rules of procedural fairness. Reply to appeal 1. The younger son did not file any material in response to the Notice of Appeal. He did, however, make oral submissions during the appeal hearing. 2. The younger son submitted that the Tribunal had not made any errors of law and that the Appeal Panel should not grant leave for the appellant to appeal the Tribunal's decision. Grounds 1 to 3 – Deciding whether to make a guardianship order General principles 1. The exercise of a statutory discretion may only be overturned in limited circumstances. The principles applicable to these asserted questions of law are ones articulated in House v The King [1936] HCA 40; 55 CLR 499. The High Court explained (at 504-505): The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 1. It is not an error of law for a decision maker to fail to take into account a relevant consideration unless it is bound to take that consideration into account (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24). 2. In IF v IG & Ors [2004] NSWADTAP 3, when considering s 14(2) of the Guardianship Act, the Appeal Panel of the Administrative Decisions Tribunal made reference to the "structured discretion" that the Tribunal must exercise as follows (at [26]-[28]): 26 When undertaking the second step in the process required by s 14 of the Guardianship Act 1987 the Guardianship Tribunal is required to exercise a structured discretion. The Guardianship Tribunal must consider all of the matters set out in s 14(2) before exercising its discretion. The use of the words "shall have regard to" in s 14(2) is a clear indication of the legislative intent that the Guardianship Tribunal is obliged to consider all of the matters set out in that sub-section before exercising its discretionary power. Those matters have no hierarchy or weighting. Each is a mandatory consideration. The Guardianship Tribunal must determine in every case whether one or more of those considerations will be given greater weight than others. Whilst each is a mandatory consideration, in some cases there may be no evidence of one or more of them. In such circumstances it may be prudent for the Guardianship Tribunal to record that fact. 27 Whilst the Guardianship Tribunal must consider all of the matters in s 14(2), it is not limited to considering those matters before determining whether to make a guardianship order. The Guardianship Tribunal is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision. 28 In many cases it will be necessary for the Guardianship Tribunal to undertake a balancing exercise for its consideration of some of the matters in s 14(2), as well as any other relevant matters, may cause it to believe that a guardianship order should be made, whilst consideration of other matters may cause it to hold a contrary opinion. When undertaking such a balancing exercise the Guardianship Tribunal may be guided by one or more of the general principles that underpin the legislation which are set out in s 4 of the Guardianship Act 1987. 1. It is a mandatory requirement that the Tribunal consider the practicability of services being provided to the person without the need for the making of a guardianship order (s 14(2)(d)). The reference to "services" in s 14(2)(d) has been interpreted in a broad sense and requires consideration of "whether the person actually needs a guardian because that person may be able to receive all necessary services without a guardian" (IF v IG & Ors [2004] NSWADTAP 3, at [30]). 2. In BZE v NSW Public Guardian [2015] NSWCATAP 64, the Appeal Panel adopted this broad approach to the meaning of "services" in s 14(2)(d) when it noted that a relevant consideration in that case was "whether services, including decisions about access, could be provided without the need for making a guardianship order" (at [27]). Discussion 1. In its reasons at [38], the Tribunal set out the matters it needed to be satisfied of before it could make a guardianship order. At [49], it set out the provisions in s 14(2) to which it was required to have regard when considering whether or not to make a guardianship order. At [35], the Tribunal's reasons set out the s 4 principles. The Tribunal correctly identified the relevant provisions of the Act that it needed to apply 2. The Tribunal's reasons, when looked at as a whole, make clear that the Tribunal regarded the issue of the maintenance of ZCF's relationships with, and access to, family members as crucial issues in considering whether or not to make a guardianship order. 3. The Tribunal needed to consider whether, having regard to the mandatory considerations set out in s 14(2) and the general principles set out in s 4, a guardianship order should be made for ZCF including whether, under s 14(2)(d), services, including decisions about access, could be provided without the need for making a guardianship order (BZE v NSW Public Guardian [2015] NSWCATAP 64, at [27]). 4. The Tribunal's reasons make reference to the claim made by ZCF's younger son in his initial application to the Tribunal that the elder son was preventing contact between ZCF and the younger son and between ZCF and her grandchildren (at [36]). 5. The reasons (at [54]) outline the evidence given by the younger son at the hearing as to the difficulties he says he and his children experienced over the previous 12 months in having contact with ZCF. 6. The reasons summarise the evidence of the elder son in relation to the issue of access noting that he disputes his brother's evidence other than an incident on one occasion (at [55]) which was particular to its circumstances. 7. The reasons also set out the views expressed by ZCF about this issue ([27]-[28]). 8. Later (at [85]), when considering the issue of who to appoint as the guardian, the reasons state "…it was evident to the Tribunal that there is considerable conflict between the two brothers". At [86], the Tribunal's reasons also noted the undesirability for ZCF if "access arrangements were to remain an ongoing source of conflict among those closest to her". 9. The Tribunal concluded that "without a guardian with an access function, disputes would soon resume within the family on the question of access" (at [59]). 10. The elder son asserts that the Tribunal failed to have regard to his role as enduring guardian when it made the guardianship order and that there was no need to make the order given that appointment. ZCF did not, however, include access as one of the areas over which she gave her elder son decision-making authority when she appointed him as her enduring guardian. The Tribunal did not therefore fail to have regard to his appointment as enduring guardian in considering whether or not to make a guardianship order under s 14(2). The elder son's authority as enduring guardian simply did not extend to providing him with authority to make substitute decisions for his mother as to how and with whom she had contact. 11. It is clear from the reasons that the Tribunal had regard to the mandatory consideration set out in s 14(2)(d). 12. The Tribunal's reasons also make clear that it had regard to the importance of the preservation of ZCF's existing family relationships (s 14(2)(c)) by noting that the reduction in conflict between the two sons, by way of the making of a guardianship order, was necessary in order to try and achieve the aim of preserving family relationships (see [59], [86], and [89]). 13. The elder son was critical of this aspect of the Tribunal's decision and asserts that the evidence before the Tribunal showed that the relationship between ZCF and her younger son had been dysfunctional for a long time, that there was, in effect, no functional family relationship to preserve and that as a result the Tribunal should not have placed any weight on the importance of preserving ZCF's existing family relationships. 14. There was probative evidence before the Tribunal of an existing relationship between ZCF and her younger son and between ZCF and her grandchildren. We see no error in the manner in which the Tribunal dealt with this aspect of its reasoning. The Tribunal clearly had regard to the importance of the preservation of ZCF's existing family relationships which it was required to do. 15. The other mandatory considerations set out in s 14(2) were not the subject of grounds of appeal and, in any event, the Tribunal's reasons indicate that the Tribunal had regard to those matters, particularly the views of ZCF (Tribunal's reasons at [47] and [26]-[32]). It is also clear from the reasons that in deciding to make a guardianship order about the issue of the access ZCF has to others and the conditions of access, the Tribunal had regard to the principles set out in s 4 and gave paramount consideration to ZCF's interests (Tribunal's reasons, at [58]). 16. We conclude that the Tribunal made none of the errors identified in House v The King [1936] HCA 40; 55 CLR 499 (at 504-505) and the ground asserting that the Tribunal made an error in exercising its discretion to make a guardianship order for ZCF is not established. Ground 4 - Adequacy of reasons General principles 1. A summary of the principles relevant to the giving of reasons is provided in the judgment of McColl J in Pollard v RRR Corp [2009] NSWCA 110, at [56]-[67] (Ipp JA, Bryson AJA agreeing). Relevantly: 56 … However a trial judge's reasons must, "as a minimum…be adequate for the exercise of a facility of appeal": Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 – 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, "considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding": Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713). 57 The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA. 58 The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ. 1. In a recent discussion of the principles, Basten JA in Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33, noted at [48]: When an appellate court is invited to find that a trial judge provided inadequate reasons, it is important to understand the nature of the function being invoked. It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. Rather it is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of judicial power. Transparency in decision-making is an important value, but it is not cost free, and may involve separate parameters of quantity and quality. 1. Section 62(3) of the CAT Act states as follows: (3) A written statement of reasons for the purposes of this section must set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made. … 1. The nature and extent of the duty to give reasons in the Tribunal is set out in Collins v Urban [2014] NSWCATAP 17, at [48]-[57]. Discussion 1. We note that once the Tribunal decided to make a guardianship order for ZCF, then under s 6I of the Guardianship Act "all authority of [ZCF's] appointed enduring guardian to exercise a function under the appointment" would be suspended for the duration of the order ([70]). This included suspension of the elder son's authority as enduring guardian to make decisions on his mother's behalf in relation to services which was an area of decision making authority provided to him in the 2011 power of attorney. 2. Given this, the Tribunal needed to consider what, if any, other functions apart from access should be specified in the order (Guardianship Act, s 16(2)). Ultimately, the Tribunal did not specify any other functions in the order apart from the services function for the reasons set out at [30] above. 3. The appellant is critical of the Tribunal's reasoning in relation to the inclusion of the services function in the order and the appointment of the Public Guardian as the decision maker in relation to this function. 4. The Tribunal's finding as to why a services function was needed is set out at [53] of the Tribunal's reasons as follows: 53 The Tribunal accepted the concerns highlighted by [Mr Y], and decided that [ZCF] now needs to have a guardian with the authority to make decisions about the services she is to receive. 1. The "concerns highlighted by Associate Professor [Y]" are referred to in [50] of the Tribunal's reasons, namely, that ZCF's "personal care leaves a lot to be desired". 2. The Tribunal's reasons also make reference to the elder son's acknowledgment in his evidence that "showering is 'the biggest problem' with [ZCF]'s care" (at [50]), and also make reference to his evidence that he had made arrangements for a former registered nurse to provide his mother assistance with showering (at [50]). Although not noted in the Tribunal's reasons, the elder son drew our attention to evidence he had provided at the hearing (confirmed in the audio recording of the hearing at first instance) that the only time that he had been unable to arrange for showering assistance for his mother was shortly before the early January 2016 appointment with Associate Professor [Y] and that this situation arose because the services of the former registered nurse who had been assisting with his mother's personal care unexpectedly ceased shortly before the Christmas holiday break. According to his evidence, the elder son was unable to make alternative care arrangements in that period and this was the explanation for Associate Professor [Y's] observation as to his mother's presentation on the day of her appointment. 3. The Tribunal also noted earlier in its reasons (at [43]) that "Associate Professor [Y] expressed the view that [ZCF] is being well cared for at home by her [elder] son" and although recording that "[ZCF]'s personal care 'leaves a lot to be desired'", Associate Professor [Y] "did not think that there was a need to change [ZCF]'s living arrangements at the moment". Later in Associate Professor [Y's] report (although not referenced in the reasons), he states that "even though [ZCF] is resistive to personal care and showering, I feel that this is the only activity of daily living that is not being met satisfactorily. It would be worth her having an ACAT assessment for formal services, which may be able to be introduced slowly over the next few months". 4. The Tribunal's reasons do not make any criticism of the elder son's actions as enduring guardian or as the carer of his mother. The reasons expressly acknowledge (at [50]) the evidence that he had in place informal arrangements to meet his mother's personal care needs until those arrangements came to an unexpected end. There was no finding in the reasons that the elder son was likely to be unwilling to arrange for services to be provided, including an ACAT assessment, as suggested by Associate Professor [Y] in his written report. Whilst there were references in the written reasons to the evidence given by the elder son that there are no Russian speaking community services in Sydney, it is not evident from the reasons the relevance of this evidence to the decision to include a services function. 5. The Tribunal "was not obliged to spell out every detail of the process of reasoning to a finding" (Pollard v RRR (at [58]). It was, however, essential in the circumstances of this case for the Tribunal to clearly expose its reasoning as to why a services function should be included in the order rather than allowing decisions about service provision to be made by the elder son on an informal basis having regard to his role as carer for his mother and the lack of any adverse findings about his performance in the role as enduring guardian. It was clearly "a point critical to the contest between the parties" (Pollard v RRR (at [38]) and should have been explained. 6. We conclude that the Tribunal's reasons for specifying a services function in the order were not adequate. 7. We also conclude that the Tribunal failed in its reasons to adequately explain its finding (at [88]) that the elder son was not able to exercise the services function as guardian for ZCF. 8. The Tribunal's reasons focus on issues of conflict between the two brothers and the importance of preserving ZCF's family relationships (at [85]-[88]) when considering the respective claims of ZCF's sons to be appointed guardian and ultimately the decision to appoint the Public Guardian in relation to both access and services functions. In relation to the elder son's application to be appointed as guardian, the reasons do not, however, adequately explain how the Tribunal reached the conclusion that the Public Guardian should be appointed with the services function given the evidence that the elder son had been performing the role of enduring guardian, with a services function, since 2011. 9. The Tribunal also refers (at [84]) to the elder son's willingness to assist his mother as her substitute decision-maker, that his appointment would assist in preserving ZCF's cultural and linguistic environments, that he has his mother's best interests at heart (at [85]) and genuinely wants to fulfil her wishes (at [85]). 10. In the particular circumstances of this case in which the elder son has been the enduring guardian for some time with authority to make decisions about services, no adverse findings were made as to his performance of that role, and positive findings are made as to his care of his mother, it was necessary for the Tribunal to explain why it concluded that he would not be able to exercise the role of guardian with the services function, even if a different guardian was appointed to make decisions about access. We note in this regard that s 16(3) of the Guardianship Act enables two or more guardians to be appointed separately under a guardianship order each having different functions. 11. We conclude that the Tribunal below failed to adequately expose the reasons for the finding that a services function should be included in the order and the reasons leading to the conclusion that the elder son would not be able to exercise the services function as guardian. This ground is established. Ground 5 – Failure to take into account relevant considerations 1. The appellant makes a more general complaint that he should have been appointed as his mother's guardian instead of the Public Guardian. He asserted that the Tribunal failed to have regard to his "four year track record" of caring for his mother and that by not appointing him as the guardian, the Tribunal effectively found him "unwilling, unreliable and irresponsible to perform in [his] function as enduring guardian" without any evidence to support this decision. 2. Given our conclusion as to the inadequacy of the reasons in relation to the appointment of the Public Guardian in relation to the services function, we confine our consideration of this ground to the appointment of the Public Guardian in relation to the access function. Discussion 1. In its discussion about who should be appointed as the guardian, the Tribunal stated (at [79]) that the Public Guardian could not be appointed if some other person could be appointed as the guardian (Guardianship Act, s 15(3)). The Tribunal also referred (at [83]) to the requirements of 17(1) and listed (at [82]) the matters about which it must be satisfied before it can appoint a person as a private guardian as follows. The Tribunal must be satisfied that the proposed guardian: * has a personality generally compatible with the personality of the person under guardianship; * has no undue conflict of interests (particularly financial) with those of the person under guardianship; * is able and willing to exercise the functions of the proposed order. 1. The Tribunal's reasons then state (at [85]-[88]): 85 …Nevertheless, it was evident to the Tribunal that there is considerable conflict between the two brothers. 86 Even though the existence of conflict between members of a family is not a sufficient reason, by itself, to appoint the Public Guardian, the Tribunal must also consider the importance of preserving [ZCF]'s family relationships. The Tribunal attached particular weight to this principle, given the importance of those relationships, and the nature and extent of her disabilities. The Tribunal recognised that, at this stage of [ZCF]'s life, it would not assist in preserving her family relationships, and it would not assist her to live in dignity, if the decisions concerning her services and access arrangements were to remain an ongoing source of conflict among those closest to her. 87 Again, it was apparent to the Tribunal that if either [the younger son] or [the elder son] were to have the authority to make decisions concerning access arrangements for their mother, it would place [the younger son] or [the elder son] in a position of considerable conflict of interests, given the history of disputes between them on this issue. 88 The Tribunal found that [the younger son] and [the elder son] are willing, but not able, to exercise the functions conferred or imposed by [ZCF]'s guardianship order. For these reasons, the Tribunal decided to appoint the Public Guardian as [ZCF]'s guardian. 1. It is evident from these passages that there was nothing to suggest that the Tribunal found the elder son to be, as he suggests they did, "unwilling, unreliable and irresponsible". 2. The Tribunal formed the view on the evidence before it that the appointment of the elder son as guardian would worsen family relationships even further rather than preserve them. In doing so, the Tribunal had regard to the principle of the importance of the preservation of family relationships set out in s 4(e) of the Guardianship Act. 3. The Tribunal's reasons (at [87]) also note that the appointment of either of ZCF's sons as guardian would lead the appointee to be placed in a "position of considerable conflict of interests, given the history of disputes between [the brother's] on this issue" of access arrangements for ZCF. 4. It appears clear that the crux of the Tribunal's decision not to appoint the elder son as guardian in relation to decisions about access was because, although willing, he would not be able, in accordance with s 17(1)(c) of the Guardianship Act, to exercise the functions conferred by ZCF's guardianship order in accordance with the principles set out in s 4 of the Guardianship Act. The principles given particular weight in this regard were section 4(e) and, implicitly, s 4(a). There was no legal error involved in the Tribunal taking this approach as it is well accepted that the Tribunal must consider whether a proposed guardian is able, having regard to the circumstances, to exercise the functions in accordance with the principles set out in s 4 of the Act (C S and M Y v Guardianship Tribunal and Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep). 5. We have concluded that the Tribunal made none of the errors identified in House v The King [1936] HCA 40; 55 CLR 499 (at 504-505) in considering who to appoint as the guardian in relation to the access function and the Tribunal did not fail to take into account a consideration that it was bound to take into account. Procedural fairness 1. The appellant asserted that the Tribunal breached procedural fairness by failing to give the Public Guardian in advance of the second hearing date the Tribunal's Reasons for Decision for the adjourned hearing on 11 January 2016 and other evidence submitted prior to the hearing. This led, in the view of the elder son, to the Public Guardian making poorly informed submissions about the need for a guardian with a services function. The elder son also asserts that the Tribunal breached procedural fairness by not providing the Public Guardian or the younger son documents in advance of the hearings (in particular, St Vincent's Hospital progress notes relating to ZCF's admission in August 2011). Nor, according to the elder son, had the Tribunal read the St Vincent's Hospital progress notes which were relevant to the care he provided to his mother at that time and his achievements in improving his mother's health since then. 2. None of these submissions have merit. Neither the Public Guardian nor the younger son appealed the Tribunal's decision and it is not a matter for the elder son to allege a breach of procedural fairness on their behalf. The list of "Evidence submitted for hearing" prepared by the Tribunal registry contains the St Vincent's Hospital progress notes and these documents were before the Tribunal by the time of the second hearing on 23 February 2016. 3. This ground is not established. Leave to appeal 1. The elder son also raised a number of grounds in the Notice of Appeal that would have required leave to appeal. Given that the ground of appeal in relation to the inadequacy of the reasons is established, it is unnecessary to determine whether leave to appeal should also be granted. Disposal of appeal 1. The authorities note that where an appellate body concludes that the primary decision-maker has failed to give adequate reasons, the appellate body has a discretion whether or not to direct a new trial. If, despite the inadequate reasons, only one conclusion is available, a new trial may not be necessary (Pollard v RRR, at [67], and citations therein). In our view, it is not the case that only one conclusion is available. 2. We also note that we were not asked to deal with the internal appeal by way of a new hearing (CAT Act, s 80(3)(a)) and nor were the parties on notice that such a course of action may be taken. 3. We have decided to set aside the Tribunal's decision to make a guardianship order and direct the Tribunal to reconsider the whole of the application for guardianship with further evidence. We have not made an order that only part of the case is to be reconsidered because it is in ZCF's best interests for the most comprehensive and up to date evidence to be available about all of her circumstances when considering the application. Orders 1. We make the following orders: 1. In proceedings ZCD v ZCE, ZCF, and Public Guardian (AP 16/19848), the appeal is allowed; 2. The orders of the Guardianship Division made on 23 February 2016 are set aside but not until the time that the Guardianship Division re-determines ZCE's application for a guardianship order in relation to ZCF; 3. The application for a guardianship order is to be reconsidered by the Tribunal with further evidence. ********** 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: 14 December 2016