MRY [2025] WASAT 145

[2025] WASAT 145 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : MRY [2025] WASAT 145 MEMBER : JUDGE H JACKSON, DEPUTY PRESIDENT MR T CAREY, MEMBER MS V HAIGH, MEMBER HEARD : 2 JULY 2025 DELIVERED : 5 AUGUST 2025 PUBLISHED : 23 APRIL 2026 FILE NO/S : GAA 2438 of 2025 MRY Represented Person E Applicant Catchwords: Guardianship and administration - Review application - Represented person with moderate to severe intellectual disability - Conflict between separated parents of represented person - Suitability of each parent of represented person - Split decision turning on suitability of mother of represented person in circumstances of risk to her health, safety and well-being possibly arising due to her appointment - Turns on own facts -- 1 of 29 -- [2025] WASAT 145 Page 2 Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4, s 17A, s 43, s 44(2), s 44(2)(d), s 64, s 68, s 68(2), s 68(3)(c), s 68(5), s 75 State Administrative Tribunal Act 2004 (WA), s 99 Result: Previous orders of administration and guardianship revoked Mother of represented person appointed as his plenary administrator and limited guardian Category: B Representation: Counsel: Represented Person : Non-appearance Applicant : In Person Solicitors: Represented Person : N/A Applicant : N/A Case(s) referred to in decision(s): Nil -- 2 of 29 -- [2025] WASAT 145 Page 3 REASONS FOR DECISION OF THE TRIBUNAL: (These reasons were delivered orally and have been taken from the transcript of the hearing. They have been edited to make necessary corrections or annotations for the purposes of correcting grammatical errors or infelicity of expression, and to provide headings.) Reasons of Deputy President Jackson and Member Carey Overview 1 On 2 July 2025, a panel of three Tribunal members heard an application for review under s 17A of the Guardianship and Administration Act 1990 (WA) (GA Act) in GAA 2438 of 2025. Those three members were myself, Judge Henry Jackson, Member Vanessa Haigh and Member Tim Carey. Following the hearing, we reserved our decision. We are now ready to make the relevant orders and deliver our reasons. The orders that we will make are, briefly stated, that MRY's mother, E, will be appointed plenary administrator and limited guardian. 2 We are not unanimous in our reasons. Two members of the panel hold that view, while the third member is of the view that the Office of the Public Advocate (OPA) should be appointed guardian, and the Public Trustee should be appointed administrator. Separate reasons will be given for the two views. I will first give reasons for the majority view, which I share with Member Carey. He is not present here today, but he has read the reasons that I will read out and agrees with them. 3 Once I have read out our reasons, Member Haigh will read out her reasons. 4 I will then make the formal orders. Reasons of the Majority 5 MRY is an 18-year-old man living with profound autism, such that he is essentially non-verbal and has been diagnosed with the equivalent of at least a moderate level of intellectual handicap. MRY turned 18 on 24 November 2024. On 10 October 2024, his father, T, applied for orders of both guardianship and administration. The matter came on for hearing on 4 December 2024. The hearing was unable to be completed on that day and was adjourned to 21 February 2025. The hearing was completed on that day, and the decision and associated reasons were reserved. -- 3 of 29 -- [2025] WASAT 145 Page 4 6 The matter was, later, listed for delivery of reasons on 14 April 2025. On that day, that is, 14 April 2025, orders were made by which the Public Trustee was appointed as plenary administrator of MRY's estate. The Public Advocate was appointed as limited guardian for MRY with the following functions: accommodation, work, treatment decisions, contact, services, restrictive practices and travel. An order was also made such that each of the orders must be reviewed by 14 April 2027, a period of two years. 7 We will refer in these reasons to those orders as the 'Original Decision'. 8 On 7 May 2025, an application was made by MRY's mother, E, under s 17A of the GA Act, for the review of the Original Decision. The following day, an application was made by T. That application was dismissed in light of E's previous application. That is, T had the right to participate in the application for review brought by E and has, indeed, done so. 9 The application for review was heard by us, a three-person panel, on 2 July 2025. At the conclusion of the hearing, we reserved our decision. 10 Our role on review is to remake the original decision. In doing so, our task is not dependent upon error in the Original Decision. As such, no one needs to prove that the original decision was wrong. Rather, we have started again. We have done so having regard to all of the material that was before the original decision-maker. 11 We have also had regard to the transcript of the hearing held by the original decision-maker, documents filed by any of the parties since the hearing before the original decision-maker as well as anything that was said at the hearing before us. 12 Having taken all of that material into account: as to administration, firstly we are satisfied that MRY suffers from a mental disability; secondly, that he is unable to make reasonable decisions about his finances in his own best interest; and thirdly, that that inability is due to his mental disability. 13 As to guardianship, we are satisfied that MRY is incapable of looking after his own health and safety, is unable to make reasonable decisions in respect of matters relating to his person and is in need of oversight, care or control in the interests of his own health and safety. -- 4 of 29 -- [2025] WASAT 145 Page 5 14 We are also satisfied that there is a need for formal orders to be made and that his mother, E, should be granted plenary powers of administration in respect of his estate, and that E should be granted limited powers of guardianship in respect of his person. Principles 15 There are four principles which have guided our decision in reviewing the original decision. They were explained at the beginning of the hearing, but for the purposes of these reasons, we will briefly explain them again. Each is derived from s 4 of the GA Act. 16 The first is that all persons, including MRY, are presumed to be capable of making decisions in their own best interest. That presumption may be displaced but only by cogent evidence to the contrary. 17 The second is that to the extent that we are able to do so, we must try to obtain and understand MRY's wishes. That does not require us to follow or enact MRY's wishes, but we must seek to ascertain what they are if we are able to do so and have regard to them in making our decision. 18 The third is that all decisions that we make must be made with a view to furthering MRY's best interests. 19 The fourth is that any decision we make must limit MRY's freedoms and liberties as little as possible and only to the extent that it is necessary to pursue his best interests. 20 We turn, then, to the issues to be resolved. Issues to be Resolved 21 There are five issues that must be resolved in reviewing the original decision. They are: capacity; need; function; identity; and duration. 22 We ask first whether MRY has capacity, because we start with the presumption that he does. Unless that presumption is displaced, we cannot go any further. That is, if MRY has capacity, we cannot make orders, and the process is at an end. Only if we decide that he lacks capacity do we look at need. -- 5 of 29 -- [2025] WASAT 145 Page 6 23 Need asks whether there are less formal and less intrusive means by which decisions can be made for MRY to further his best interests other than formal orders of guardianship and administration. 24 The issue of function looks to the type of decision that a substitute decision-maker can make for MRY. Consideration of function is important because, again, we must not make orders that impinge on his liberty unless it is necessary to do so to look after his best interests. 25 The fourth issue, identity, asks who should be appointed to be the guardian and/or the administrator. The GA Act sets out criteria that must be met. In the case of a guardian, the person must not have a conflict of interest. In either case, they must be considered suitable. If no one else is suitable, we will appoint the Public Advocate or the Public Trustee. 26 Duration, the fifth issue, is the maximum length of the order. It sets the date by which the orders must be reviewed. MRY's Wishes 27 As to MRY's wishes, MRY did not attend the hearing. At the hearing, each of E and T confirmed that MRY was unable to express his views as to who he would prefer to act on his behalf. 28 Those views are consistent with the medical evidence as to MRY's very limited ability to communicate. We also note that the report prepared by the investigator from the OPA was silent on the matter. Capacity The Relevant Tests for Administration and Guardianship 29 We turn, then, to the question of capacity and the relevant tests for capacity in administration and guardianship. 30 We repeat that we start with the presumption that MRY is capable of making reasonable financial decisions in his own best interest. Section 64 of the GA Act requires a three-part test which must be satisfied in order to displace that presumption in respect of administration. 31 Section 64 provides that we may make administration orders only if we are satisfied that a person, in this case MRY, is unable by reason of a mental disability to make reasonable judgments in respect of -- 6 of 29 -- [2025] WASAT 145 Page 7 matters relating to all or any of his estate, and that he is in need of an administrator of his estate. That is, we must be satisfied that: firstly, MRY is incapable of making reasonable decisions in his own best interest; secondly, that MRY has a mental disability; and thirdly, that MRY's incapacity is due to or because of that mental disability. 32 Mental disability is a term that is defined in s 3 of the GA Act. It is an inclusive definition, so it is not limited to the examples given, but in this case, the examples are relevant. They include an intellectual disability and a psychiatric condition. 33 However, as is clear from the terms of s 64, the existence of a mental disability is insufficient. It is also necessary to show that MRY lacks capacity to make decisions about his estate in his own best interest, and that that lack of capacity is caused by his mental disability. 34 The test for guardianship is simpler. It asks only whether we are satisfied that MRY is either: (a) incapable of looking after his own health and safety; or (b) unable to make reasonable decisions in respect of matters relating to his person; or (c) in need of oversight, care or control in the interests of his own health and safety. The Evidence and its Application 35 We turn, then, to the evidence and its application in relation to capacity. We are satisfied that each of the elements that we have just identified as being required by the GA Act in relation to both administration and guardianship, have been met. In so saying, we note that no one at the hearing suggested otherwise. Everyone agreed that MRY lacked the necessary capacity in both senses. 36 The medical report dated 1 November 2024 of Dr W is conclusive. At the time of his report, he had known MRY for 12 years and had had three contacts with him in the previous 12 months, albeit that two of those were by phone. He describes MRY as having '... profound autism and is essentially non-verbal. His academic learning capacity has been severely limited'. -- 7 of 29 -- [2025] WASAT 145 Page 8 37 He says that while MRY has '... cognitive strengths, in daily living adaptive skills, his abilities are limited to the equivalent of at least a moderate level of intellectual handicap'. 38 In answer to the question whether MRY has the ability to understand matters relating to his estate and to his person, Dr W has answered that he, MRY, is '... unable to consistently indicate his understanding, of each of the relevant matters'. That evidence is supported by a report of Dr M dated 30 October 2024. Dr W describes Dr M as MRY's general practitioner. Dr M says that she had seen him three times in the 12 months previous to her report. 39 She says in her report that MRY has a diagnosis of a global developmental delay and has a language ability of a two-year-old. Like Dr W, Dr M says that MRY is incapable of understanding each of the issues regarding his estate and his person. Dr M also attaches a report from the [Redacted] Clinic addressed to her and dated 29 September 2024. In it, Dr H repeats information, presumably given to him by E to the effect that MRY was diagnosed at age 2 with '... global development delay and language disorder' and at age 4 with autism and at age 7 with '... moderate to severe intellectual disability'. That information is presented in a manner which indicates that Dr H agrees with it. 40 It is unnecessary to go into any more detail about other reports before us, save that each of the following all support the conclusion that MRY lacks capacity to make decisions in his own best interests as to his person. Those reports are, firstly, the report of Ms C, MRY's speech pathologist, dated 30 October 2024; secondly, the report of Mr M, MRY's behaviour support worker, dated 16 October 2024; thirdly, MRY's Behaviour Support Plan; and fourthly, MRY's Functional Behaviour Assessment dated 16 January 2024. 41 For these reasons, we are satisfied that, firstly, MRY has an intellectual disability that causes his inability to make decisions about his estate in his own best interests, and secondly, that MRY is incapable of looking after his own health and safety, unable to make reasonable decisions in respect of matters relating to his person and is in need of oversight, care or control in the interests of his own health and safety. Need 42 I turn now to need. We are also satisfied that there is a need for formal orders. -- 8 of 29 -- [2025] WASAT 145 Page 9 43 First, we are satisfied that there is no less formal option available, in that MRY lacks the capacity to make an enduring power of attorney or enduring power of guardianship, and there is no evidence of one in any event. 44 Second, it is plain that there is a very considerable degree of tension and conflict between MRY's parents going to various matters regarding MRY. That is evident from what has been said by the two of them, both before the original decision-maker and before us, as well as in the written material filed with the Tribunal. 45 We will describe some of this evidence in more detail below, but for present purposes, we note evidence of tension or conflict between E and T in the not too distant past as to medical treatment, including the administration of a COVID-19 vaccine and psychiatric care, as well as accommodation, specifically whether or not MRY can and should access respite care. Function 46 We turn, then, to the third issue, that of function. 47 The orders the subject of review included the following functions for the guardian: accommodation, being both where and with whom MRY should live; medical treatment; services; restricted practices; contact; work; and interstate or overseas travel. We will address them each in turn. Accommodation 48 As to accommodation, for many years until he turned 18, MRY lived mostly with his mother but spent some time at his father's house. That occurred pursuant to Family Court orders. There is evidence that arrangements for care and handover between the parents were the source of conflict and that the Family Court orders provided a degree of certainty. 49 Both E and T have spoken of the Family Court orders in those terms, although E also spoke of the orders as being unfair. Equally, there is evidence of conflict regarding E's proposal to have MRY access respite care. We have raised this issue previously and will return to it in more detail below. In our view, orders as to accommodation should be made to allow a substitute decision-maker to provide the same certainty as the Family Court orders and to allow decisions to be made about matters such as respite care. -- 9 of 29 -- [2025] WASAT 145 Page 10 Medical Treatment 50 As to medical treatment, as we have said there is evidence that questions concerning MRY's medical treatment have been the source of conflict. That includes disagreements as to whether he should be vaccinated for COVID-19, whether he should receive the benefit of psychiatric care and, amongst other things, the causes of repeated ear infections. The fact that E ultimately agreed not to vaccinate MRY for COVID-19 and that T appears to now accept that it is appropriate for MRY to access psychiatric care does not obviate the need for formal orders. 51 It is clear that both matters were the source of considerable conflict. For example, T's initial application to the Tribunal for formal orders of guardianship and administration was prompted by what he sees as E's 'unilateral' decision to take MRY to an appointment with a psychiatrist. Accordingly, we are of the view that the guardian should be granted the function of medical treatment. Services 52 MRY has a National Disability Insurance Scheme (NDIS) plan. 53 Again, there is evidence of conflict between MRY's parents when it comes to dealing with the NDIS. Someone should be appointed guardian with formal authority for dealing with the NDIS. Restrictive Practices 54 MRY has a behaviour support plan under the NDIS. A guardian should be given a function that allows consent to be given for restrictive practises to be used in accordance with that plan. Contact 55 There is evidence that, at least from time to time, the conflict between MRY's parents has resulted in considerable unpleasantness and inappropriate conduct in front of MRY. In addition, we note that the Family Court orders provided that MRY should not be left alone with a particular individual. Despite this, both E and T advise that no contact function should be provided, in their view. 56 It may be that the function is not in fact strictly necessary, but we consider that the history suggests that it is appropriate for there to be such a function in the event that it is needed. -- 10 of 29 -- [2025] WASAT 145 Page 11 Work 57 MRY is a young man with a history of working at a nursery throughout his schooling. He also has worked with E selling honey. T proposes to engage him in a business. E has expressed some concern as to T's proposal for MRY to join him in that business venture. 58 A guardian should, for these reasons, be given the function of determining whether or not any or all of those work proposals are appropriate for MRY. Travel 59 MRY has joined at least some of his family members for overseas holidays. There has been no suggestion that when doing so there is any risk of him being removed to another jurisdiction. In our view there is no need for a travel function. Identity The Position of E and T 60 As we have said, both E and T brought applications for review of the original decision by which the single member appointed the Public Advocate and Public Trustee as guardian and administrator respectively. Both were very eager to avoid those appointments. E said that the single member's decision was a shock to her and that she felt that her autonomy as a parent had been taken away. She said that she understands T feels the same way, which T, more or less, confirmed. 61 E said that compared with the public official appointments, a joint appointment of herself with T was to be preferred. However, it is fair to say that E's evidence as to her preferred position has changed over time. In her written submissions filed before the single member on 4 March 2025, she said that had T not applied for orders in October 2024, she would have done so 'because it is not safe, appropriate or reasonable for [her] to have to continue to be abused by [T], and [she does not] believe that he is capable of making rational decisions to support [MRY's] care'. 62 That is, we understand E to have expressed the view there that she wished for a sole appointment. However, after the decision of the single member appointing the Public Advocate and the Public Trustee, the OPA Investigator's report recorded E as telling the Investigator that -- 11 of 29 -- [2025] WASAT 145 Page 12 she 'felt' that joint guardianship 'was the only way', and that 'she has dealt with [T] for 20 years'. However, the Investigator also recorded E advising the Investigator that 'she is unsure if a joint appointment is considered logistical or appropriate'. 63 As we have said, at the hearing before us, E's initial position was that she sought joint guardianship. Her evidence in support of a joint appointment was to the effect that there had been somewhat of a change in the relationship between her and T since the single member's decision to appoint the Public Advocate. 64 E said, and T's evidence was similar, that, since the original decision, they have jointly attended an appointment with MRY's psychiatrist; that T has had responsibility for liaising with service providers; that they have agreed to a monthly dinner together at which issues concerning MRY are discussed (although T later clarified, that at least from his perspective, that proposal for a monthly dinner was in anticipation of a joint appointment); that they have had a recent joint trip to Albany to the same end; and that their relations have been 'cordial'. 65 We accept that they have both taken steps to work together and engage more cooperatively in the interests of both their children. E also said that she hoped that the 'process', by which we understand her to refer to the process of an application to the Tribunal and the decision to appoint the Public Advocate, has shed light on the responsibilities of decision-makers and that, following the process, T would make better, more informed decisions. In proposing a joint appointment with T, E was frank and candid about the difficulties that she and T have had in their attempts to make joint decisions about MRY, but she also expressed hope that they would be able to 'make it work'. 66 However, when questioned by the panel, E said that she would 'rather make decisions by herself'. Despite that, she also said she would agree to T being solely appointed in order to avoid the appointment of a bureaucrat as a decision-maker for MRY. 67 In our view, E's vacillation manifests an ambivalence towards a possible joint appointment with T. In our view, her support for a joint appointment was given in what we consider to be an admirable attempt to keep the peace with T and to avoid the appointment of the Public Advocate and Public Trustee. -- 12 of 29 -- [2025] WASAT 145 Page 13 68 T also supported a joint appointment, although he had much less to say on the topic. He was opposed to E's sole appointment, saying that it would 'break the relationship', that is, the relationship between them, 'down further'. Joint Appointment is not Appropriate 69 In our view, a joint appointment is not appropriate. Section 53 of the GA Act requires that where joint guardians are appointed, each shall only act with the concurrence of the other. Section 75 says the same thing as to administrators. The requirement for unanimity makes joint appointment difficult to manage even when there is broad agreement and harmony between the jointly appointed guardians. Where there is conflict and animosity between them, such an appointment could not be described as in the best interests of the represented person as it would inevitably lead to important decisions either not being made at all due to the conflict between the jointly appointed guardians, or being delayed for an unreasonable period of time due to that conflict. 70 The evidence before us includes very significant allegations of conflict, including various forms of abuse, between T and E. We note that T's evidence was to the effect that all of the conflict was the result of E's failure to ensure that he, that is, T, was suitably involved in decision-making concerning MRY. For reasons set out in more detail below, we do not accept that version of events, but we consider it to be indicative of T's refusal to accept his own role in the conflict, as well as to accept the reality of ongoing conflict despite recent efforts at greater cooperation. 71 Until recently, while MRY remained a child, conflict between E and T regarding MRY and his brother was resolved between them as best they could. Where it concerned matters the subject of Family Court orders those orders provided a framework and rules. Where it did not, E and T had to work it out between themselves. That often led to further conflict, and, at least in some cases, decisions that we are satisfied were not in MRY's best interests. Respite care is a good example. We will return to this below. 72 Were that situation to be formalised into orders which require unanimity, we are satisfied that decisions would either not be made or would be made in ways that are not in MRY's best interests. Despite E's optimism that she and T could make it work and despite what -- 13 of 29 -- [2025] WASAT 145 Page 14 appears to have been efforts made to work more cooperatively, it is plain that there remains considerable conflict between the two of them. 73 In any event, for the reasons that follow, we are satisfied that T is not suitable for appointment. That conclusion applies regardless of whether the appointment is joint or alone. The Requirements of Suitability 74 We will briefly outline the statutory requirements for suitability. 75 Section 44(1) of the GA Act provides that we may appoint a guardian only if we are satisfied of certain things: that the proposed guardian is 18 years of age (if they are a natural person); that they consent to the appointment; that they will act in the best interests of the represented person; that they are not in a position of a conflict of interest; and that they are otherwise suitable to act as the guardian. Section 68 of the GA Act is to the same effect as to the appointment of an administrator, save that there is no requirement that there be no conflict of interest. 76 In considering whether someone is suitable as a guardian, s 44(2) of the GA Act provides that we may have regard to four things. Firstly, the desirability of preserving existing relationships within the family of the person in respect of whom the application is made; secondly, the compatibility of the proposed appointee with the person in respect of whom the application is made, and with the administrator, if any, of that person's estate; thirdly, the wishes of the person in respect of whom the application is made; and fourthly, whether the proposed appointee will be able to perform the functions vested in them. Section 68(2) of the GA Act is to the same effect as to the suitability of an administrator save that there is no reference to the preservation of family relationships. 77 If we are not satisfied that anyone meets those criteria we must appoint the Public Advocate as guardian. Although the Public Advocate is also the administrator of last resort, under s 68(5) of the GA Act, we will appoint the Public Trustee if neither E nor T is suitable for that role. T is Unsuitable as a Guardian 78 T puts himself forward as a possible guardian and administrator. We will deal with both in turn. -- 14 of 29 -- [2025] WASAT 145 Page 15 79 We are not satisfied that T is suitable for appointment as MRY's guardian. 80 First, we are not satisfied that he can engage in a helpful, respectful and useful way with others involved in MRY's care. 81 One of the critical skills for a guardian is the ability to work cooperatively and collaboratively with doctors, allied health providers, service providers and others involved in the care of the person under guardianship. T has demonstrated that he is unable to behave in a respectful and helpful manner when confronted with those that have a different view to him. That would appear to be particularly the case when that other person is female. 82 There are several examples in the evidence. The following will suffice. Firstly, E's evidence before the single member was that she had felt intimidated by T and has felt that she needs to agree to his suggestions in order to prevent him from becoming upset. As we will see, there is much evidence that when T becomes upset, he becomes aggressive. T's response to E's evidence that she has felt intimidated was instructive. 83 Rather than be curious as to why E might feel that way, to apologise if she has felt that way, and indicate that he was willing to work to ensure that if that had happened in the past it will not happen again, T denied that E had felt intimidated, and said that he had not acted in a manner that was intimidating. 84 T refused to accept that E had, in effect, yielded to his will and made decisions that were in accordance with his wishes. Rather, he insisted that such decisions were ones in which she had 'agreed'. 85 Secondly, on several occasions during the original hearing, T lost his temper and spoke to the single member, who was female, in a manner that was rude, discourteous, contemptuous, and sneering. 86 Thirdly, MRY's NDIS support coordinator ended communications between her and T due to his 'increasingly aggressive tone'. E's evidence includes reference to several other incidents which are consistent with this pattern of behaviour. For example: that T was so threatening of a female teacher at a previous school attended by MRY that it resulted in a meeting between them and the principal; and that a respite care provider discontinued their services for MRY because they were concerned that T would attend and make people feel unsafe. -- 15 of 29 -- [2025] WASAT 145 Page 16 87 Indeed, T's rude, patronising and condescending behaviour when confronted with women appears evident even when they are trying to assist him. His interaction with the Tribunal's own customer assistance staff on 27 June 2025 was unacceptable. 88 In a note recorded on the Tribunal's internal system, the staff member reported that when T was advised that he would need to provide a matter number in order for the staff member to be able to assist him, T became rude and aggressive, including by shouting. 89 At the hearing, the panel asked T whether he ever got angry when dealing with people who disagreed with him. 90 He denied ever doing so, and when taken to various of the above examples, his interaction with the Tribunal staff member, the single member, the NDIS support coordinator, the teacher and the respite care provider, he continued to deny ever having become aggressive in each of those circumstances. We do not accept those denials. The contemporaneous written evidence of people with no interest in the matter who have been on the receiving end of his aggression is to the contrary, and we accept it. 91 T spoke for some time at the hearing regarding the suggestion that he uses intimidation to get his own way. Initially, he said that that suggestion was exaggerated, or words to that effect. As we have said, he was taken to various specific allegations of previous aggression, all of which he denied. He later returned to his interactions with the Tribunal, both its staff and the single member, and spoke of feeling frustrated at the process and how he has felt he was being treated. 92 We are satisfied that he has felt frustrated at the Tribunal's process, but not because he has been unfairly treated. Rather, we are satisfied that he has been treated fairly and equally. However, his involvement in the Tribunal's processes represents what we infer is an unusual situation for T, in that he is not the one in control. 93 As a result, he has become frustrated. Such a response and such feelings are not unusual. However, his response to the circumstances, that is, aggression, shouting, rudeness and sneering contempt of female staff and the female single member, has been uncommon and unacceptable. -- 16 of 29 -- [2025] WASAT 145 Page 17 94 In sharp contrast, he managed to control his feelings of frustration, anger and sadness, all of which were evident to us from time to time during the hearing before us, in which the presiding member was male. 95 In our view, his poor behaviour with the female staff member and the female single member demonstrates that the other examples of anger, rudeness and contempt shown towards females, with whom he disagrees, are not 'isolated' examples as he suggested, but, rather, represent a pattern of behaviour. 96 Secondly, we are satisfied that T makes decisions about MRY that are not in MRY's best interests, especially when angry. 97 In particular, we are satisfied that when T is angry with E, he fails to do what he has previously agreed to do in relation to MRY's care arrangements. E's evidence before the single member was that 'it is not uncommon' for T to withdraw his care of MRY when he is angry with her. We accept that that is the case and that it is an example of him seeking to control both E and the process of decision-making. 98 An example of T withdrawing his previous agreement as to MRY's care arrangements is his email of 22 February 2025, which E included in her submissions filed on 4 March 2025. In that email, T blames her as the cause of all their conflict. We pause here to note that, in the hearing before us, that was a common refrain from T, and we repeat we do not accept that that is the case. 99 In that email, T also accuses her of 'betraying' him and MRY when she said in the hearing before the single member that she would not agree to a joint appointment. He said that he 'cannot parent or care for MRY under these circumstances', and he reneged on a previous agreement or arrangement whereby E was to drop MRY at his home. 100 That withdrawal of support for and engagement with MRY by T when he is angry was also threatened in the proceedings before the single member. His conclusion to his written submissions filed on 25 February 2025 threatens disengagement from MRY's life should the Public Advocate or E be appointed guardian. He says that if that occurs, he 'will not be able to continue to support MRY effectively'. 101 We are satisfied that T finds it difficult to play the role of parent when he feels like he is not in complete control. We will return to this when we address our decision to appoint E as guardian. We accept that that appointment will make it difficult for T to participate. So, too, -- 17 of 29 -- [2025] WASAT 145 Page 18 would the appointment of the Public Advocate, which he described as 'the worst case, unbearable'. We accept T's evidence as reflecting his feelings. They are consistent with our view that he struggles with circumstances in which he has a limited ability to control the process and the decisions which are being made. 102 While we accept that having T in his life is in many respects beneficial for MRY, we do not accept that the benefits are such that T ought to be able to control much of MRY's life and through it, much of E's life as well. If T is able to parent only when he can dictate the outcomes that he wants, we are satisfied he is not suitable to be guardian. As we have already said, a guardian must be able to work with a variety of situations, including with people who have different views as to what is in the best interests of MRY. 103 Another example of T not acting in MRY's best interests is his attitude to MRY's access to respite care. E's evidence was to the effect that she had sought access for MRY to have respite care primarily to allow him to have an 'appropriate and safe social outlet'. She also said that by accessing respite care, MRY would 'get used to staying away from the home'. We pause to add that in addition to those benefits for MRY, E would also no doubt gain some well-deserved and much- needed respite. 104 T's evidence was that he did not oppose respite care per se, but rather wanted to be given, in effect, a right of first refusal to look after MRY before MRY was placed into respite care. On its face, T's position appears reasonable. Amongst other things, as T points out, it was provided for in the Family Court orders. However, we are not satisfied that T's stated position accurately reflects his actual position in this regard. The reality is that MRY does not have access to respite care. 105 E's evidence is that the respite care provider withdrew the service because it was concerned that T would attend and make people feel unsafe. We accept her evidence as it is consistent with our previous observations about T's inability to manage his frustration and anger. It is also consistent with the email of the respite care provider that we referred to previously. 106 If T's concerns were limited, as he says they were, to whether he was given an opportunity to care for MRY before he accessed respite care, they could and should have been managed quite easily. We infer -- 18 of 29 -- [2025] WASAT 145 Page 19 from the fact that MRY currently lacks access to respite care, despite E's wish that he does so, that T's concern regarding respite care was not limited as he says. 107 Rather, we infer that MRY lacks access to respite care because T has behaved in a manner that was unreasonable and aggressive towards the provider. In short, we are satisfied that T is volatile and prone to angry outbursts when others disagree with his views, particularly if that other person is female. When angry, he is unable to put that anger to one side and make decisions in MRY's best interests. Rather, his anger is directed at controlling and/or making life difficult for those at whom the anger is directed. 108 For these reasons, we are satisfied that he is not suitable for appointment as guardian. 109 We are also satisfied that T is not suitable as MRY's administrator. E made several allegations about T's financial dealings, which are of considerable concern. We address three of them below. 110 First, she said that T had told her that he has a debt to the Australian Taxation Office of $200,000. We note that T did not respond to this allegation in his responsive submissions. A debt of that size does not of itself make him unsuitable, but it does raise questions as to his ability to manage money in a responsible manner. It is also a circumstance that might reasonably suggest that T may have a greater temptation than would otherwise be the case to use MRY's funds to supplement his own. In so saying, we are not making a finding that he would or is likely to do so, just that the risk is greater. 111 Secondly, E said that T has underpaid her in child support. We note that his denial relies on the suggestion that his income has fluctuated, and that he has therefore overpaid her in the past. He also submits that underpayment of child support is not relevant to the issues before us. We disagree. Child support is money paid for the care or maintenance of MRY. A failure to meet his obligations evidences a reluctance or inability to put MRY's needs before his own. 112 Thirdly, E alleges that in 2012, T reported the distribution of trust funds to E of which E was not aware. We presume, given her lack of awareness, that those distributions were not reflected in actual payments. If that is what occurred, it is dishonest. We note that T did not respond to this allegation in his responsive submissions either. -- 19 of 29 -- [2025] WASAT 145 Page 20 113 There was also a suggestion that T wants to engage MRY in a business. Plainly, MRY lacks the capacity to participate in any financial arrangements. 114 In the absence of material that contradicts these allegations and provides a strong counter narrative, we are not satisfied that T is suitable for appointment as an administrator for MRY's estate. E's Suitability 115 We turn to the position of the parties as to how E's sole appointment would proceed. E acknowledged that her sole appointment, if it was to occur, would mean that her relationship with T would be tense in the beginning. But she said that there were 'always teething issues' and she thought that they, that is she and T, could work through any initial difficulties. 116 In response to the Tribunal's question as to her approach in the event of being appointed the sole decision-maker, E said that she would obtain and have regard to the information which was relevant and would always consider T's views. 117 T was strongly opposed to E being appointed the sole guardian. As previously noted, he said that this 'would break the relationship down further'. 118 On being asked by the Tribunal about how he thought sole appointments would work in practice, T's responses differed strongly depending on who the putative appointee was. He said that if appointed, he would involve E in the determinative process before making decisions. But he said that if E was sole guardian, his view was that E would not seek his input in making decisions. T maintained that view despite being reminded of E's evidence about the improvement in the level of their cooperation. 119 In this regard, T's evidence was consistent with the conclusions that we have previously reached about his unsuitability; that is, unless he is in control, his view is that E cannot be trusted to act in MRY's best interests. In our view, his evidence is against a considerable volume of evidence to the contrary. We turn then to the question of E's suitability. 120 Although she did not ultimately appoint E, the single member expressly found no basis to criticise the decisions made by E as to the -- 20 of 29 -- [2025] WASAT 145 Page 21 care she has provided MRY or the other decisions made by her about him. In his report, the OPA Investigator found E to be suitable for appointment. We agree. We are satisfied that E consistently acts in what she considers MRY's best interests, often despite considerable frustrations and hardships to herself. There are several instances of her actions where this is evident. 121 First, she has brought this application for review despite her awareness that it would be a very difficult process, including dealing with what she anticipated would be a strong and adverse reaction from T. 122 Secondly, she has pursued access to psychiatric assistance for MRY despite it being, in her words, a 'very time-consuming and frustrating experience'. The difficulties of that experience appear to have been exacerbated by T's reaction to it. Whether or not MRY needs such assistance is not for us to comment on, but E is clearly of the view that it is a matter worth pursuing and has done so despite the hardships previously mentioned. 123 Thirdly, she has sought to access respite care for MRY despite difficulties created by T, which we have previously discussed. As we have previously found, E's pursuit of respite care was to allow MRY to have 'an opportunity' to have an 'appropriate and safe social outlet'. 124 He would also, in her view, 'get used to staying away from the home'. In that way, it represents a view to the future. E's evidence was to the effect that she wanted MRY to get used to respite care so that, when the time comes, and she and T are unable to care for MRY, he will not find alternative accommodation arrangements strange and foreign. 125 T's aggression and inability to regulate his own emotions have made that process difficult and, as we have previously found, unsuccessful. 126 These matters are in addition to the everyday caring for MRY. We are satisfied that E has carried the very considerable burden of caring for MRY, and that that burden has often been made harder as a result of T's behaviour, and not easier. 127 We accept E’s evidence, to which we have referred above, as to how she will conduct herself if appointed as sole guardian. That is, we accept her evidence that if she is appointed sole guardian, she will -- 21 of 29 -- [2025] WASAT 145 Page 22 consult with T about key decisions. We accept that evidence because we accept that that is how she has conducted herself previously. 128 In that regard, we reject T's contrary view, which is not supported by the evidence. To take the example of the COVID-19 vaccine, it is clear that E gave considerable weight to T's strident opposition to such vaccination. Indeed, E did not have MRY vaccinated in light of factors that included T's opposition to it, as well as MRY's own medical vulnerability. 129 To take another example, that of MRY's access to psychiatric care, it is also clear that E was aware of T's views and gave them weight. That she ultimately decided to proceed to take MRY to a psychiatrist does not, as T would have it, demonstrate that she 'sneaks around' but that, rather, she makes decisions that she considers are in MRY's best interests, having taken T's views into account. 130 That is, in our view, precisely what a guardian should do. We also give considerable weight in this regard to her frank acknowledgement that if she is appointed sole guardian, it will be hard initially, as her appointment as sole guardian is not what T wants, but that ultimately, she is of the view that she and T can work through those difficulties. 131 In our view, this evidence demonstrates that she has a clear-eyed view of the difficulties and challenges of being sole guardian, and that she will be able to navigate those challenges in a dignified and respectful way with T if he chooses to remain involved. We are also satisfied that she is well-placed to cooperate and collaborate with others. That is evidenced by the way in which she has cared for MRY over many years. 132 It is also evidenced in the manner in which she presented at the hearing; as a woman with very considerable experience in managing a difficult relationship with her ex-husband, E is willing to make very considerable sacrifices to ensure that she maintains her role as carer and protector of her son. E is Suitable for Appointment as Administrator 133 We are also satisfied that E is suitable for appointment as administrator. E appears to have been excluded from the finances during her marriage with T. Her evidence speaks of discovering what T had done much later after the event. -- 22 of 29 -- [2025] WASAT 145 Page 23 134 There is not much express material before us that can be relied upon to demonstrate that she is capable of acting as the manager of MRY's estate. 135 However, she has managed her own household budget by herself for many years now, since T and she separated. That has occurred in circumstances where, we are satisfied, child support has not always been paid in the amounts and at the times when it should have been. In doing so, she has managed MRY's financial arrangements, including the NDIS. 136 MRY's estate is likely to be very simple. He receives a pension but has little or few expenses. The NDIS is the only matter likely to be complicated, and we are satisfied that she has managed that for some time. 137 We are therefore satisfied that she is capable of performing the role. We are also satisfied for the same reasons that she is suitable for appointment. The risk to E 138 We turn now to whether, despite that suitability, it is appropriate to appoint E. 139 As we have noted, the single member appointed the Public Advocate as MRY's guardian and the Public Trustee as his administrator, despite expressly finding that she could not fault E's decision-making. 140 The single member made those appointments after noting E's fear of T and finding that appointing E would 'increase the level of conflict' between them, and that it 'would in turn be a risk to MRY's health and wellbeing'. We acknowledge and respect that perspective. 141 It is fair to say that, despite our view that E is suitable for appointment as guardian, we have some reservations about appointing her. To be blunt, we are concerned that her sole appointment will upset T so much that he will make her life and MRY's life very difficult, and perhaps even unsafe. E's evidence satisfied us that she was very much aware of the risk that she was taking by consenting to a sole appointment. -- 23 of 29 -- [2025] WASAT 145 Page 24 142 In our view, she is the person best placed to understand T, and any risks that he poses. She also understands herself, her strengths and weaknesses, what she can and cannot, or will not, be able to do, best. 143 Ultimately, we are satisfied that if she says that she is able to manage the appointment, we ought to accept that evidence. Put in the language of s 44(2)(d) and s 68(3)(c) of the GA Act, we are satisfied that E 'will be able to perform the functions vested' in her. 144 In so saying, we offer no adverse judgment on the views expressed by the single member, and the views expressed by Member Haigh who we understand has reached a different view. As we say, we are clear about the risk posed by the appointment but ultimately accept E as the best person to understand and manage that risk. Duration 145 Finally, we turn to the question of duration. In our view, both appointments should be for a two-year duration. That will be long enough to allow any 'teething problems' to be worked through, without allowing for matters to go on for too long if they are not. Orders The Tribunal orders: 1. The Tribunal declares that the represented person, [MRY] is: (a) unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all of his estate; (b) in need of an administrator of his estate; (c) incapable of looking after his own health and safety; (d) unable to make reasonable judgments in respect of matters relating to his person; (e) in need of oversight, care or control in the interests of his own health and safety; and (f) in need of a guardian. 2. The administration and guardianship orders dated 14 April 2025 are revoked and substituted with the orders below. -- 24 of 29 -- [2025] WASAT 145 Page 25 Administration 3. [E] of [address], Western Australia is appointed plenary administrator of the represented person's estate with all the powers and duties conferred by the Guardianship and Administration Act 1990 (WA). 4. The administrator is authorised to expend up to a total amount of $350 per annum on gifts on behalf of the represented person. 5. The administration order is to be reviewed before 4 August 2027. Guardianship 6. [E] of [address], Western Australia is appointed limited guardian of the represented person with the following functions: (a) to decide where the represented person is to live, whether permanently or temporarily; (b) to decide with whom the represented person is to live; (c) to decide whether the represented person should work and, if so, the nature or type of work, for whom they are to work and any related matters; (d) to make treatment decisions for the represented person, subject to Division 3 of Part 5 of the Guardianship and Administration Act 1990 (WA); (e) to determine what contact, if any, the represented person should have with others and the extent of that contact; (f) to determine the services to which the represented person should have access; and (g) to decide whether to give or withhold consent to the use of any restrictive practices proposed in any behaviour support plan developed from time to time for the represented person in compliance with the requirements of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth). 7. The guardianship order is to be reviewed before 4 August 2027. -- 25 of 29 -- [2025] WASAT 145 Page 26 Reasons of Member Haigh 146 Although my decision is a dissenting one and has no consequence for the outcome of this matter, it is important that dissenting views are articulated, and I do so now. 147 I agree with the Deputy President His Honour Judge Jackson, and Member Carey, except insofar as they have found E suitable to be appointed as MRY's sole guardian and administrator. 148 I do not agree that E should be appointed to both those roles. I do not find E suitable to be appointed as MRY's guardian and administrator. Further, I do not consider it to be in MRY's best interests to appoint his mother, E, to be his sole guardian and administrator for the reasons I will now explain. 149 In considering whether E is suitable to be appointed as MRY's guardian, I may have regard to the desirability of preserving existing relationships within MRY's family. 150 Those existing relationships may be described as follows. Whilst E and T have been separated and divorced for over a decade, T remains a constant, intimidating, and volatile presence in E's life. In the main, their interactions are focused on MRY's ongoing care needs. E and T have different opinions about what is in MRY's best interest in key areas involving MRY's care. 151 For example, around respite care, MRY's need for psychiatric counselling, and vaccination. T's opinions are strongly held, and he subjects E to ongoing abuse and coercive control to ensure that his will prevails. In documents before the Tribunal, E has described instances of T subjecting her to physical and verbal abuse and coercive control during their marriage, and this behaviour continues in their relationship today. 152 Based on the evidence before me, I consider E's allegations to be credible. T's application to the Tribunal seeking their joint appointment was made because he found it unacceptable that E was making decisions without him. For example, T even took issue with a decision made solely by E, when her consent was sought by a medical professional, whilst MRY was under anaesthetic, in circumstances where a timely decision had to be made. -- 26 of 29 -- [2025] WASAT 145 Page 27 153 It appears that the enmity between E and T has abated somewhat since the Tribunal appointed an independent guardian and administrator, in respect of which both E and T are united in their opposition. This recent thawing of relations must be considered against the history of T's aggressive, threatening, and intimidating behaviour towards E over many years. 154 There are also numerous examples of this behaviour towards other women, including staff of the Tribunal, MRY's support coordinator, a teacher, and hospital staff. T denies this behaviour and its characterisation. His behaviour before the single member, a female, bordered on insulting and obstructive, and the single member drew to his attention that it is an offence under s 99 of the State Administrative Tribunal Act 2004 (WA) to behave in this way. 155 In the history of T's relationship with E, it is alleged that he has subjected her to physical domestic violence of the most serious kind. Given I find these allegations credible, I consider that it puts E's safety, health and well-being at serious risk if she is appointed as sole guardian. Her appointment as sole guardian for their son will empower E to make decisions in the best interests of MRY, notwithstanding T's opposition: It heightens the risk of conflict between them. 156 I consider that T directs his aggression towards anyone with whom he disagrees, or who he finds 'not helpful'. For example, in the case of the Tribunal customer assistance staff. T's behaviour is volatile and unpredictable. It is inevitable, and I am in no doubt, based on the history of their relationship, that any decision made by E for MRY, with which T disagrees, will have consequences for E. 157 In my view, to place E's physical and psychological well-being and personal safety at risk by appointing her as the sole guardian is unacceptable. In my view, her appointment as sole guardian risks an escalation of the conflict between E and T, particularly in circumstances where T has repeatedly articulated that he cannot parent in such circumstances (being where he is not joint guardian, or implicitly the sole guardian). In my view, the risk of harm to E is not diminished by the fact that they have been long divorced. On the evidence before me, I am satisfied, and I find that T remains an ongoing and threatening presence in E's life. 158 The risk to E is elevated by any appointment of her as sole guardian for MRY. In my view, her appointment will do further -- 27 of 29 -- [2025] WASAT 145 Page 28 damage to the family relationships. I am concerned for E's safety. MRY will have a lifelong need for a substitute decision-maker and to put the safety, health and well-being of his loving and devoted mother at risk is unacceptable. It is not in MRY's best interest. It is not in MRY's best interest to put his mother at risk of harm. 159 I am otherwise persuaded that E would make decisions in MRY's best interest. There is some evidence, which I accept, that in response to T's ongoing abusive behaviour or in anticipation of such behaviour, E may capitulate or not pursue a course of action that is in MRY's best interest. Notwithstanding that there is some risk that this may occur, I am satisfied that, on balance, E will make decisions in MRY's best interest, albeit that this may be extremely difficult. However, for the reasons I have outlined, I do not consider that it is in MRY's best interest to appoint E as his sole guardian. 160 My colleagues have given considerable weight to E's acknowledgement that if she is appointed sole guardian, it will be hard initially as it is not what T wants, but that, ultimately, she is of the view that they can work through that. My colleagues have relied on this evidence to demonstrate that E has a clear-eyed view of the difficulties and challenges of being sole guardian, and that she will be able to navigate these challenges in a dignified and respectful way with T, if he chooses to remain involved. 161 In my view, this evidence demonstrates E's selfless determination to make decisions for her son in the face of threats and intimidation by T and regardless of the risks to her own psychological and physical well-being and safety. In my view, E's consent to being solely appointed as guardian is unsafe but is indicative of the sacrifice she is prepared to make to ensure that she can make key decisions for her beloved son. MRY needs his mother, and it is in his best interests and consistent with s 44(2) of the GA Act that family relationships be preserved and that his mother not be put at risk by reason of her appointment. 162 For this reason, I respectfully disagree with my learned colleagues' assessment of the risks to E in appointing her as MRY's sole guardian. I am of the view that the Public Advocate ought to be appointed as MRY's guardian. 163 I concur with my colleagues' view that E is capable of performing the role of MRY's administrator. However, I disagree with their view -- 28 of 29 -- [2025] WASAT 145 Page 29 that E is suitable to be appointed as MRY's administrator. This is because I consider that the risk to E's health, safety and well-being by reason of her appointment as MRY's administrator, is not in MRY's best interest. 164 E has different views to T about what is in MRY's best financial interest. For example, her views on the establishment of a micro- business involving T and MRY. Any decisions that E may make in MRY's best financial interests which conflict with T's views, put her physical and psychological well-being and safety at risk, which is not in MRY's best interest. 165 For these reasons, I am of the view that the Public Trustee should be appointed as MRY's administrator. 166 Because I differ from the majority view, as to who ought be appointed MRY's guardian and administrator, this has a consequence for the duration of the orders. 167 In light of MRY's lifelong disability, and his ongoing need to have a guardian and administrator, I consider that a five-year appointment of the Public Advocate and the Public Trustee is appropriate. For this reason, I disagree with my colleague's view that the appropriate duration of the orders is two years. The short orders proposed by my learned colleagues are because of any teething problems associated with the appointment of E. No such problems apply to independent appointments. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. DM Associate 23 APRIL 2026 -- 29 of 29 --