Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DCX v Public Guardian [2017] NSWCATAD 377 Hearing dates: 25 August 2017 Date of orders: 22 December 2017 Decision date: 22 December 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: J S Currie, Senior Member Decision: The decision of the Public Guardian is affirmed. Catchwords: ADMINISTRATIVE REVIEW - decision by Public Guardian as guardian appointed under a guardianship order – exercise of access function – decision to restrict the Applicant's access to the subject person to regular telephone calls and to prohibit any other form of access, including physical access, subject to further review. Obligations of the decision maker under the Guardianship Act 1987- application of the principles in section 4- finding that the decision maker correctly applied the section 4 principles. Finding that the decision remained the correct and preferable decision, consistent with the section 4 principles, at the date of hearing. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act, 2013, No. 2 (NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2016 (NSW) Cases Cited: DCA v Public Guardian [2017] NSWCATAD 364 Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 P v NSW Trustee and Guardian [2015] NSWSC 579 at [56] Protective Commissioner v D [2004] NSWCA 216 (2004) 60 NSWLR 513 at 543 [167] WL v NSW Trustee and Guardian [2011]NSWADTAP 22 at [70]-[77] ZDU v ZDV [2017] NSWCATAP 197 Category: Principal judgment Parties: DCX (Applicant) Public Guardian (Respondent) Representation: Counsel: M. Moore (Respondent) Applicant: In Person Solicitors: Crown Solicitor (Respondent) File Number(s): 2017/00173231 Publication restriction: The publication of the name of the Applicant, the persons identified in the Reasons as MX, GX and VQ and the person subject to the decision by the Respondent is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them. reasons for decision What are these proceedings about? 1. In these proceedings DCX seeks a review of a decision of the Public Guardian. The Public Guardian is the appointed guardian of DCX's mother. By a decision made on 1 June 2017 the Public Guardian upheld the imposition of a restriction on DCX's access to his mother, who I will refer to in these Reasons as BA, under which DCX could have such access only through regular telephone calls. Any other form of access, including physical access, was prohibited, subject to further review. Background 1. On 22 December 2016 the Guardianship Division of the Tribunal made a continuing limited guardianship order for BA, the mother of DCX. Under that order, 3 of BA's children (that is, 3 siblings of DCX) were appointed as her guardians for a short term, 5 weeks, with authority to make access decisions for her. 2. That guardianship order was renewed and varied on 27 January 2017, when the Public Guardian was appointed as BA's guardian for 12 months, with authority to make access, accommodation and health care decisions for BA. 3. At the hearing on 27 January 2017 DCX asserted that BA had capacity to make decisions for herself, but he did not offer any expert evidence to support that assertion. He also opposed the appointment as guardians of his 3 siblings and he sought to be appointed. However the Tribunal Panel found that that DCX was not a suitable person for appointment, because he was unable properly to undertake the role of a guardian in accordance with the relevant legislative requirements. 4. On 2 May 2017 the Public Guardian as BA's guardian made a decision ("the original decision") that restricted the access of DCX and one of his brothers to their mother BA. DCX's access to her was restricted to regular telephone calls. Any other form of access, including physical access, was prohibited, subject to further review. 5. As the result of an internal review requested by DCX, by further decision made on 1 June 2017 ("the decision under review"), the Public Guardian upheld the original decision. 6. It is the decision under review which is subject to administrative review in these proceedings. 7. DCX lodged his application for review on 9 June 2017. Preliminary matter: non-publication Non-publication 1. Subsections 65(1) and (2) of the Civil and Administrative Tribunal Act 2013 (NSW), ("the CAT Act") prohibit publication of the names of certain persons to whom proceedings relate, if the proceedings relate to certain decisions, including decisions made under the Guardianship Act 1987 (NSW). Those persons include anyone to whom any proceedings in the Tribunal relate, a witness in proceedings, or someone who is mentioned or otherwise involved in the proceedings. These are obviously proceedings relating to a decision made under the Guardianship Act. 2. Whilst the prohibition in s 65 does not apply to an official report of the proceedings (see s 65(3)), I have used the acronyms set out earlier, so as to preserve the anonymity of family members. Uncontested facts 1. The following relevant facts appear to be uncontested. 1. The facts relating to the guardianship proceedings in respect of BA, as set out in [2] to [4] above. 2. The facts relating to the making of the original decision and the decision under review, as set out in [5] and [6] above. 3. BA is a 91-year-old woman who lives with one of her daughters on the Central Coast of New South Wales. In order to preserve the anonymity of family members, I will refer to that daughter as VQ. BA has 10 living children. 4. VQ and another daughter of BA were recognised as carers for BA in the Tribunal's Reasons for Decision in relation to the Guardianship Division proceedings 5. On 8 September 2010 BA executed an enduring guardianship appointment under which she appointed VQ and one of BA's sons as her enduring guardians. DCX was not appointed. 6. On 27 May 2013 BA executed a further enduring guardianship appointment ("the 2013 EG Appointment") under which she appointed VQ and two of her other children ("the 3 enduring guardians") as her enduring guardians. DCX was not appointed. 7. DCX has made a number of applications to the Guardianship Division of the Tribunal concerning his mother BA. 1. On 15 August 2014 the Tribunal considered and dismissed applications by him to review the 2013 EG Appointment and the power of attorney appointment made by BA on 27 May 2013. 2. On 30 April 2015 the Tribunal considered and dismissed applications made by DCX for guardianship and financial management orders. 3. On 1 July 2016 the Tribunal received from DCX a further application to review the 2013 EG Appointment. At its hearing on 22 December 2016 the Tribunal decided to treat this application for review as if it were an application for a guardianship order and disposed of it by making the initial guardianship order referred to at [3] above. 1. There is substantial discord within the family of DCX, between DCX and one of his brothers (who, in order to preserve the anonymity of family members I will refer to as GX) of the one part, and DCX's other siblings, including the 3 enduring guardians, of the other part. Relevant statutory provisions: DCX's standing, my role and the section 4 principles 1. Section 80A of the Guardianship Act 1987 makes specific provision for the administrative review by this Tribunal of the Public Guardian's decisions. The section is in the following terms: "80A Administrative review by the Civil and Administrative Tribunal of guardianship decisions of Public Guardian 1. An application may be made to the Civil and Administrative Tribunal for administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: 1. is made in connection with the exercise of the Public Guardian's functions under this Act as guardian, and 2. is of a class of decision prescribed by the regulations for the purposes of this section. 1. An application under this section may be made by: 1. the person to whom the decision relates, or 2. the spouse of the person, or 3. the person who has the care of the person to whom the decision relates, or 4. any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision." 1. Clause 17 of the Guardianship Regulation 2010 provides that for the purpose of s 80A (1) (b) of the Guardianship Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under that Act as guardian are prescribed. DCX's standing 1. I am satisfied that DCX had standing to make the present application as a person whose interests are adversely affected by the reviewable decision, within the meaning of s 80 (2) (d). My role: "standing in the shoes" of the decision maker 1. Sub-section 63 (1) of the Administrative Decisions Review Act 1997 ("the ADR Act") sets out the role of the Tribunal in determining an application for administrative review under that Act. That role is: "… to decide what the correct and preferable decision is having regard to the material then before it, including the following: 1. any relevant factual material, 2. any applicable written or unwritten law." 1. Subsection (2) of section 63 provides that for the purpose of making my decision I may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. 2. The effect of these two subsections is often described as the Tribunal being required to "stand in the shoes" of the administrator who made the decision. As is often the way with these general tags, that is perhaps an insufficiently precise description of my role. I am required to decide what the correct and preferable decision is having regard to the material that is before me at the hearing. My decision must be made "as things stand" at the hearing and it is clear that I may take into account material that was not before the primary decision-maker: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77. The section 4 principles 1. The Public Guardian exercises functions under the Guardianship Act 1987. Section 4 of that Act sets out general principles which must be observed by anyone exercising functions under the Act with respect to persons who have disabilities. The Public Guardian exercises functions of that description when it makes decision as an appointed guardian. The section is in the following terms: "It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: 1. the welfare and interests of such persons should be given paramount consideration, 2. the freedom of decision and freedom of action of such persons should be restricted as little as possible, 3. such persons should be encouraged, as far as possible, to live a normal life in the community, 4. the views of such persons in relation to the exercise of those functions should be taken into consideration, 5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, 6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, 7. such persons should be protected from neglect, abuse and exploitation, 8. the community should be encouraged to apply and promote these principles." 1. It is uncontested and accepted by the Public Guardian that in making the original decision and the decision under review it was under a duty to comply with section 4 by observing these principles. The real issue in the proceedings 1. It follows from the statutory provisions discussed above that the real issue in these proceedings is what is the correct and preferable decision as to DCX's access to his mother, BA. 2. Because the Public Guardian is under a duty to observe the section 4 principles and because I effectively stand in the shoes of the Public Guardian, it must follow that in making my decision I must also observe the section 4 principles. That in turn will involve some assessment by me of the extent to which and the manner in which the Public Guardian observed those principles in making the decision under review. Written material and submissions presented to the Tribunal 1. Each of DCX and the Public Guardian lodged documentation with the Registry prior to the hearing. In light of my obligation under s 38 (4) of the CAT Act to act with as little formality as the circumstances of the case permit I dispensed with the formal admission of any of that material into evidence, but I read and took into account each item lodged. 2. The documentation lodged by DCX was as follows. 1. The form of application, annexing "Appendix A- Grounds for Appeal" and "appendix B" which consisted of copies of email correspondence; 2. A statutory declaration made on 18 July 2017 by DCX. This appears to annex a further statutory declaration made on 18 July 2017, by DCX's wife. In order to preserve the anonymity of family members I will refer to DCX's wife as MX. The statutory declaration attaches a transcript of alleged telephone conversations involving MX, DCX and BA on 10 July 2017 and a diskette apparently containing the oral record of those conversations. 3. A bundle of documentation lodged with the Divisional Registry on 18 July 2017, comprising DCX's submissions to the Crown Solicitor, a letter, apparently from DCX, to BA dated 26 April 2017, a letter dated 19 January 2017 addressed to DCX and MX apparently from 7 of their siblings, a letter dated for April 2017 from MX apparently to the Crown Solicitor and documentation relating to an application for an apprehended domestic violence order commenced in the Local Court Gosford in which DCX is named as the Accused/Defendant, ("the ADVO proceedings") including notification dated 18 April 2017 that the ADVO proceedings had been dismissed. 4. A bundle of documentation lodged with the Divisional Registry on 20 July 2017, apparently comprising handwritten notes (apparently by DCX), a document from DCX headed "Summary of Attempts made to resolve access issues with mum since 22.12.16", purported transcripts of telephone conversations, correspondence between family members and copies of documentation relating to the ADVO proceedings. 5. A bundle of documents lodged with the Registry on 8 August 2017, which appears to comprise correspondence relating to the proceedings in the Guardianship Division relating to BA including the papers available to DCX in relation to the hearings in that Division. 6. Documentation lodged with the Registry on 16 August 2017, with a front sheet headed "Documents filed by Applicant in reply to Repondent (sic) Orders made by Senior Member Montgomery on 18 July 2017". This bundle includes handwritten diary notes apparently made by DCX, further copies of documentation relating to the ADVO proceedings, extract of annotated website material headed "Narcissistic personality disorder (NPD) is a type", and a redacted and annotated copy of a Police Report from Bankstown Police dated 26 October 2016 apparently relating to a Police visit to premises occupied by DCX and BA on 17 May 2016. 1. The documentation, apart from short standard correspondence, lodged by the Public Guardian was as follows: 1. a folder of documents filed on 13 July 2017 pursuant to section 58 of the ADR Act; 2. a bundle of documents filed on 10 August 2017 headed "Documents filed by the Respondent in reply to evidence of the Applicant". 1. In addition, at the hearing the Public Guardian tendered a two-page file note dated 21 August 2017 by Peter Wilson, Principal Guardian. That was formally admitted into evidence as exhibit R 1. 2. Each of the parties made oral submissions at the hearing. DCX's Case 1. I reviewed the documentation provided by DCX and at the hearing I gave him the opportunity to put his case to me orally for approximately 90 minutes in total. His case, as I understand it, is essentially as summarised below. I emphasise that the contentions were not put to me in these precise terms by DCX and that I have attempted, in fairness to him, to put his case at its highest and in a way which draws upon applicable law. Allegation of conflicting and misleading statements by the Public Guardian 1. DCX asserted that the Public Guardian had made conflicting and misleading statements to DCX and had given DCX the false impression that the Guardian was giving consideration to allowing him to have extensive access to his mother. An associated assertion was that the officer of the Public Guardian with whom DCX had most contact did not in fact have any real authority to make a determination of DCX's rights of access to his mother, BA. Allegation that the Public Guardian made inadequate attempts to obtain BA's views 1. DCX asserted that the Public Guardian had based the original decision and the decision under review on inadequate attempts to obtain BA's own views. For example he told me that the Public Guardian had seen his mother only twice since 13 February 2017. If those assertions were to be made out that might be an indication that the Public Guardian had not given proper weight to its obligation under s4 (d) of the Guardianship Act, which requires the views of the subject person to be taken into consideration. DCX's close bond with his mother 1. I understood DCX to assert in effect that the Public Guardian had failed to appreciate or to give proper weight to the particularly close bond which he has with his mother, BA. If that assertion were to be made out it may provide the basis for a contention that the Public Guardian has failed to give due consideration to one of the factors set out in section 4 of the Guardianship Act; namely s4(e), which requires that recognition be given to the importance of preserving the subject person's family relationships. Allegations as to the actions of VQ 1. DCX asserted that his sister VQ has acted so as to prevent him having any reasonable access to his mother, even under the restrictions imposed by the original decision and confirmed by the decision under review, which allowed telephone contact only. For example DCX alleged that on multiple occasions when he telephoned his mother at VQ's house (where she resided), VQ remained in the room and interrupted the conversation or encouraged her mother BA to curtail or end the call. Alleged failure of the Public Guardian to recognise VQ's influence over BA or of bias in VQ's favour by the Public Guardian 1. DCX asserted that either the Public Guardian had failed to recognise the influence imposed by VQ on their mother BA or had actively sided with VQ in relation to access issues and has therefore not acted objectively or properly. In his contention, this bias on the part of the Public Guardian culminated in the making of the decision under review. Contention that the removal of the access restrictions would be beneficial to BA's health, would preserve her independence and freedom and would preserve her cultural environment 1. I understood DCX to contend that the removal of the restrictions on his access to his mother BA so as to permit face to face contact would be beneficial to BA's health and would preserve her independence. I was not clear exactly how reversal of the access restrictions would improve BA's health, but DCX was clearer in asserting that such a reversal would have to allow BA greater freedom of decision. Although DCX did not assert this in terms I took him to rely on the principle set out in s 4 (b) of the Guardianship Act to the effect that a disabled person's freedom of decision and freedom of action should not be unnecessarily restricted. He also asserted that the relaxation of the access restrictions would enable BA to express her faith more fully. Again, although DCX did not say so in terms, I understood him to rely on the Public Guardian's obligation arising under the principle in s 4 (e) of the Act, that the importance of preserving BA's cultural environment should be recognised. I understood DCX to suggest that his mother's Christian background and her religious worship in the Catholic tradition were most important to her. Analysis of DCX's contentions 1. The starting point for my analysis is this. Even if each of DCX's contentions as set out above is established, it still remains for me to make what I decide to be the correct and preferable decision as to the restrictions (if any) which should be placed on DCX's access to his mother. 2. I commence by observing that DCX's oral testimony was at times, although not always, presented in an exaggerated and inflammatory manner; for example, he asserted at one stage that the Public Guardian was corrupt, at several stages that the Public Guardian was biased against him and strongly favoured his sister VQ and that the Public Guardian had acted at all times in complete disregard of BA's welfare. None of these allegations was corroborated or supported by any substantive evidence. Even allowing for DCX's understandable deep disappointment at the turn of events whereby he cannot see his mother, his assertions were frequently more emotive than considered. Many of DCX's oral and written statements and contentions were self-serving and did not reflect an objective assessment or observation. Many of his assertions summarised in preceding paragraphs were unsubstantiated. 3. Those factors must undermine my acceptance of the reliability of DCX's evidence as a whole. 4. I deal now with each of the sets of assertions and allegations by DCX summarised at [27] above. 5. In relation to the allegation of conflicting and misleading statements by the Public Guardian as set out in [27] (1), having considered the documentary material provided by both DCX and the Public Guardian I cannot conclude that the Public Guardian made any statements to DCX which were intended to mislead him or to give him the impression that he may be able to have more extensive access to his mother. What is apparent is that from a reasonably early stage the Public Guardian attempted to explain to DCX, in a way which I assume was in accordance with its normal practice, that these matters were under consideration. DCX's zeal in pursuing greater access, which in many ways is understandable, may have led him to interpret what he was being told as an indication that he was likely to succeed in having the access restrictions lifted. However, I find that nothing said or written by the Public Guardian as reflected in the evidence reasonably justified such an impression. 6. I am also unpersuaded by the related assertion in subparagraph [27] (1), to the effect that the Public Guardian's officer with whom DCX had the most contact did not have full or real authority to make a decision. In any case, that officer did not make the decision under review. 7. In relation to the allegation that the Public Guardian made inadequate attempts to obtain BA's views as set out in subparagraph [27] (2), I find that on a proper and objective reading of the documentation provided by both parties that assertion is not made out and that the Public Guardian did make reasonable and proper attempts to obtain those views. 8. Subparagraph [27] (3) relates to DCX's relationship with his mother. DCX exhibits strong bonds of love and affection to his mother BA. BA was not of course a party to these proceedings and there was no direct evidence from her. However I have no reason to doubt that she also has strong affection for DCX. But the evidence satisfies me that the Public Guardian did give due consideration to this existing family relationship of BA in making the decision under review and there is nothing to suggest that the Public Guardian ignored or did not give appropriate weight to the cultural environment of BA, in particular her religious beliefs. 9. I turn to the assertions summarised at subparagraphs [27] (4) and (5) above, which relate to the actions and influence of DCX's sister, VQ. As to the allegations in [27] (4) above, there is nothing in the evidence before me which allows me objectively to assess the strength of these assertions. VQ was not a participant in the hearing. The transcripts of recorded telephone conversations on 10 July 2017 involving BA and DCX do appear to indicate that a person identified as VQ participated towards the end of the first conversation and is reported to have said: "Cut into our conversation? You a copper or something, you've got a legal guardian his name is Peter Wilson you call him." The transcript then records that DCX says he is upset and "she cut us off, I think she's controlling…" 1. But it would be necessary to draw a very long bow indeed to conclude from this transcript (apparently prepared by DCX) that his sister VQ effectively intervened on a continuous basis to interrupted or otherwise thwart DCX's telephone access and I do not so conclude. 2. The assertions summarised at [27] (5) appear to have greater relevance, but not greater strength. They are to the effect that the Public Guardian failed to recognise any influence which VQ had over BA or was biased in favour of VQ. My ability to accept these assertions is undermined by my observations as to the general deficiencies in DCX's testimony summarised at [36] below. Additionally, the assertions are uncorroborated and are inconsistent with the documentation produced by the Public Guardian. I prefer the detailed and apparently objective records kept by the Public Guardian insofar as they relate to its perception of the role and influence of VQ. I find that DCX's assertions to the effect that the Public Guardian failed to recognise that VQ's role and influence are not established. 3. DCX's contentions summarised at subparagraph [27] (6) are potentially of greater substance. I take it that DCX invites me to conclude that because of the beneficial effect on his mother BA's health, independence and freedom, the current access restrictions should be removed or at least ameliorated. Although DCX did not expressly rely on this, his assertions in this regard do reflect the principles which I am required to take into account by paragraphs (b), (e) and possibly (f) of section 4 of the Guardianship Act. They deal respectively (and, to the extent stated, relevantly) with the freedom of decision and freedom of action of BA, the importance of preserving her family relationships and her cultural environment and the need to encourage her so far as possible to be self-reliant in matters relating to her personal and domestic affairs. However, I am required to give consideration (where relevant) to each of the 7 principles set out at paragraphs (b) to (h) of the section, not just the 3 mentioned above, and of course to give the welfare and interests of BA my paramount consideration. My analysis of the section 4 factors is set out in more detail at [50] below. These assertions by DCX also fail when subjected to that analysis. The Public Guardian's Case 1. In his oral submissions at the hearing, Counsel for the Public Guardian contended as follows: 1. The Public Guardian relies on the original decision and the decision under review and asks me to take into account the detailed reasons for each of those decisions, reflected in the section 58 documentation, particularly at heading 3 "Reasoning" in the document called "Review of Decision" at tab 2 of those documents. This was apparently sent to DCX on or about 1 June 2017. That document also provides, on page 3, useful background to the making of the original decision in the following terms, which I accept as accurate and reliable, in the following terms: "On the 27 February 2017 (sic), (BA) indicated to the PG that she would like to have contact with her sons (DCX) and (GX) and the decision maker responded by facilitating access on the 15th and 18th of March 2017. The decision maker received reports of a distressed reaction by (BA) to contact with (DCX). In response to these concerns, and the allegation (BA) had been influenced in her original views, a 2nd PG officer met with (BA) on 7th April 2017 to clarify her wishes. At this meeting (BA) indicated she did not wish to have further face to face contact with (DCX) at this time. This access decision was made based on the views presented at this meeting." (For clarity, I should add that the access decision referred to in the last sentence obviously means the Public Guardian's original decision.) 1. As to the application of the principles stated in section 4 of the Guardianship Act, the Public Guardian relies in part on the following extract from pages 3 and 4 of the stated reasons for the original decision, which appears at tab 4 of the section 58 documentation bundle. I understood the Public Guardian's case to be that this is a clear indication of the consideration which was given to the section 4 principles in making the original decision and, by necessary implication, in making the decision under review: 1. In making these type (sic) of decisions, the Public Guardian is guided by the Principles of the Guardianship Act. The relevant Principles in this situation include: 1. The welfare and interests of the client should be given paramount consideration. 2. The freedom of decision and freedom of action should be restricted as little as possible. 3. Clients should be encouraged as far as possible to live a normal life in the community. 4. The views of clients, in relation to the exercise of those functions should be taken into consideration. 5. The importance of preserving family relationships and the cultural and linguistic environments of clients should be recognised. 6. Clients should be protected from neglect, abuse and exploitation. 1. In making the current Access decisions in relation to both (DCX) and (GX), the Public Guardian has particular regard to the Principles concerning (BA)'s welfare and interests, her freedom of decision-making/action and her stated views." 1. Counsel also asked that I take particular note of the way in which the Guardianship Division Panel expressed its views in its Reasons for Decision from the hearing on 27 January 2017, particularly at [21] of those Reasons in which BA's disability is accepted, and the comments as to the conflict between family members at [24] of those Reasons. The Reasons appear at tab 9 of the section 58 document bundle. 2. Counsel emphasised that in reaching its decision the Public Guardian did not in any sense attributed blame to any one or more family members, but recognised that: 1. there is a substantial and ongoing conflict between the relevant family members; 2. BA resides with VQ and there is no practical likelihood that that will change. There is certainly no present intention by the Public Guardian to exercise its accommodation function under the guardianship order; 3. on the basis of the evidence presented to the Public Guardian and the observations of its relevant officers, BA receives good quality care and accommodation through her daughter VQ; and 4. there had occurred what was, at minimum, a serious threat of physical aggression towards at least one of his brothers by DCX which was sufficient to initiate ADVO proceedings) and that this was at a family occasion at which BA was present. 1. The Public Guardian had an obligation to take into account the impact upon BA of any future face to face contact between her and DCX. It properly decided that that impact would be distressing to BA, would cause further deterioration in her existing family relationships and could not be consistent with her welfare and interests. 2. Counsel also asked that I take into account that the Public Guardian's decision was subject to ongoing assessment and possible review. Analysis and determination The search for the correct and preferable decision 1. The starting point is that it is my obligation to determine the correct and preferable decision is that the hearing date, effectively "standing in the shoes" of the Public Guardian. That must mean that even if it were established that the Public Guardian had misapplied the general principles set out in section 4 of the Guardianship Act in making the decision under review, that decision must be upheld by me if I find that, as at the hearing date, the correct and preferable decision is the same as, or at least fully consistent with, the decision of the Public Guardian. My application of the section 4 principles may differ from that made by the Public Guardian, yet that application may produce the same result as the one reached by the Public Guardian or at least one which is fully consistent with it. Authorities as to the application of the section 4 principles 1. In the matter of WL v NSW Trustee and Guardian [2011] NSWADTAP 22, the Administrative Decisions Tribunal Appeal Panel, with Deputy President Magistrate Hennessy as presiding member, undertook a detailed analysis of the principles set out in section 4 of the Guardianship Act. The Tribunal observed, at [71], as follows: "Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 9064 0127, 14 August 1996). The "principles clause" in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles" 1. The Deputy President went on, at [72], to draw an analogy between section 4 and the "principles clause" in s4 (2) (a) of the Children (Detention Centres) Act 1987 ("the CDC Act"). That analysis was cited with approval in a recent consideration of section 4 by the Appeal Panel of this Tribunal in ZDU v ZDV [2017] NSWCATAP 197, where the presiding member was Deputy President Schyvens, the Divisional Head of the Guardianship Division. 2. Four important aspects of the operation of the section 4 principles emerge from WL v NSW Trustee and Guardian and the leading Supreme Court case of P v NSW Trustee and Guardian [2015] NSW SC579. 3. Firstly, in the WL Case the Tribunal noted that when exercising any function under the Guardianship Act a decision maker is bound to observe any relevant principle in section 4. 4. Secondly, in the same case at [76] the Tribunal observed that the section 4 principles are not expressed in absolute terms and that phrases such as "as little as possible" and "as far as possible" make it clear that observing a particular principle does not mean that, where discretion exists, the decision-maker must make a particular decision. The only gloss I would give to those observations is that although internally the section 4 principles are not expressed in absolute terms, it is clear that the principle in paragraph (a) is in a special category: the decision-make it is required to give consideration to the welfare and interests of subject person and that consideration must be the decision maker's paramount consideration. 5. Thirdly, in the WL Case at [75], the Tribunal confirmed that a relevant decision-maker is bound to observe any relevant principle in section 4 and at the decision-maker may demonstrate that he or she has observed those principles either by referring to them expressly or by writing reasons for decision which demonstrate that all relevant principles have been observed. I would add the gloss in relation to s4 (a) that the wording of that particular paragraph compels the decision maker to give regard to the welfare and interests of the subject person and demonstrate their compliance with that requirement by referring to paragraph (a) expressly or by providing reasons for decision which demonstrate clearly that that paramount principle has been observed. To put it another way, paragraph (a) is always "relevant". 6. Fourthly in P v NSW Trustee and Guardian [2015] NSWSC 579 at [56] Justice Lindsay, relying on the earlier case of Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513 at 543 [167], confirmed that: "… the Guardianship Act should be construed beneficially, having regard to its protective character. 1. The application of the section 4 principles and in particular the paramount importance of the "welfare and interests" principle was further analysed in the recent decision of DCA v Public Guardian [2017] NSWCATAD 364, at [53] to [56]. Conclusions 1. On the basis of my analysis of the Applicant's evidence and contentions, I conclude as follows. 1. The correct and preferable decision as at the day of the hearing is one which gives proper consideration to the relevant section 4 principles and gives paramount consideration to the welfare and interests of BA 2. There is no proper basis for concluding that the Public Guardian failed to give proper consideration to the principles set out in paragraphs (c), (d) and (e) and (f) of section 4. In my view the evidence and particularly the passage from its reasons for decision cited at [40] (2) above, establishes that the Public Guardian did give proper consideration to each of the relevant section 4 principles; namely that BA should be encouraged as far as possible to live a normal life in the community, that her views should be taken into consideration, that the importance of preserving her family relationships and cultural environment should be recognised and that that she should be encouraged, as far as possible, to be self-reliant in matters relating to her personal affairs. It also establishes that paramount consideration was given to BA's welfare and interests. 3. I also note with approval the concluding paragraph of the Public Guardian's detailed reasons given for the decision under review. That paragraph confirms that the Public Guardian intends to continue to monitor the situation and adjust access arrangements, if that is appropriate. It is in the following terms: "The PG acknowledges this is a sensitive decision and as a result he has underlined his determination to monitor the situation and adjust access arrangements in keeping with (BA)'s views. The views regarding contact with (the DCX) were prefaced by how much she loved all her children and how much she wished they could get along". 1. I am satisfied that, when paramount consideration is given to BA's welfare and interests, and appropriate weight is guilty given to the other relevant factors in section 4 (namely those specified in subparagraph (2) above), the correct and appropriate decision is that consent to direct face-to-face access by DCX to his mother should be withheld and his access should continue to be restricted to telephone contact, subject to ongoing monitoring by the Public Guardian. 1. My conclusion as to the correct and appropriate decision equates to the decision under review. Order 1. It must follow that the Public Guardian's decision should be affirmed and I order accordingly. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 22 December 2017