DJP [2010] QCAT 577

CITATION: DJP [2010] QCAT 577 PARTIES: DJP MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 8 November 2010 HEARD AT: Brisbane DECISION OF: C Endicott, senior member DELIVERED ON: 16 November 2010 DELIVERED AT: Brisbane ORDERS MADE: Application to be joined as an active party declined. CATCHWORDS : GUARDIANSHIP – where joinder sought as an active party – section 119 of the Guardianship and Administration Act 2000 APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 5 -- REASONS FOR DECISION 1. An application for the appointment of a guardian and administrator for DJP was lodged with the Guardianship and Administration Tribunal on 31 August 2007. At that time DS was the attorney for DJP for personal and financial matters under an Enduring Power of Attorney signed on 9 January 2007. 2. At the time when the Enduring Power of Attorney was signed, DJP had been staying with his sister, DS. Following allegations made by DJP in April 2007 against his sister, DJP returned to live in accommodation supported by a disability services organisation. DS has denied the allegations. 3. The relationship between DJP and DS continued to deteriorate after DJP returned to his residence. In September 2007 DS stated in a letter to the Guardianship and Administration Tribunal that DJP had been abusive towards her since the end of July 2007. In an email to that Tribunal sent on 19 September 2007 DS stated that DJP had instructed her not to contact him. DS informed that Tribunal that she did not intend to attend the hearing of the applications as she did not want her presence at the hearing to upset DJP. 4. In documents lodged with that Tribunal, a staff member from the disability services organisation had made a statement that DJP had not wanted to have contact with DS in December 2006 and that he had gone missing for 10 or 12 hours on prior occasions after he had had contact with DS. 5. The Guardianship and Administration Tribunal was provided with a copy of a letter prepared by DS and signed by DJP on 9 October 2007 in which he stated that he did not wish his sister to contact him again in any form whether verbal, written or personal. DJP further stated in that letter that he did not want his sister to be a contact person for any matter concerning his life. DS stated in the same letter that she would honour his wishes and never contact DJP again. 6. On 11 December 2007 the Enduring Power of Attorney was declared invalid and revoked. The Adult Guardian was appointed as guardian for DJP for certain specified matters for two years and The Public Trustee of Queensland was appointed as administrator for all financial matters until further order. DS did not attend the hearing. 7. From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has replaced the Guardianship and Administration Tribunal. Orders made by the Guardianship and Administration Tribunal are taken to be orders of the Queensland Civil and Administrative Tribunal. 8. On 10 December 2009 the Tribunal conducted a review hearing of the appointment of the guardian. The hearing was conducted on the papers and relied on written information provided to the Tribunal. The Adult Guardian reported to the Tribunal that DJP’s relationship and his desire to have contact with DS had fluctuated during the term of appointment of the guardian. The Adult Guardian recommended that the appointment of the guardian be continued across the areas of accommodation and services in view of past conflict between DS and the service providers and for health -- 2 of 5 -- care and contact in view of the fluctuating nature of the relationship between DJP and his sister. 9. The Tribunal continued the appointment of the Adult Guardian for a short period, one year, as the Tribunal had noted that the conflict which had existed between DJP and his sister had resolved to some degree since the hearing in 2007. In the expectation that relations will continue to improve, the Tribunal had considered that it was appropriate to review the need for a guardian in one year by way of an oral hearing so all persons interested in DJP could have an opportunity to be heard about the ongoing need for a guardian. 10. In an email to the Tribunal dated 13 January 2010 DS denied that the conflict between DJP and her had resolved to some degree. DS stated that the conflict had escalated to such a stage that she did not even wish to have a personal sister to brother relationship with DJP. Nevertheless, DS has manifested an ongoing interest in DJP, in particular his health care and she had maintained email contact with his guardian and the Tribunal after January 2010. 11. As part of the preparation for hearing of the current review of the appointment of the guardian, DS was asked by the Tribunal to provide some feedback for use in the review. In a letter to the Tribunal dated 8 November 2010 DS stated that after reading the statements of DJP held on the Tribunal file, there was now a irreconcilable breakdown in their relationship. She did not wish to have any further direct contact with DJP. 12. DS further stated in her letter that she will always remain an interested and active party in these hearings and that she will always do what she can “from a distance” to ensure that DJP receives the appropriate care. DS requested the time and opportunity to respond to any information that she has not been made aware of that is raised prior to or at the hearing by the Tribunal or other parties. 13. DS asked to be advised if further information about her (which she described as slanderous) has been placed on the Tribunal file since 30 April 2010. She stated that because of serious personal problems, it will not be possible for her to attend the hearing scheduled for December 2010. 14. A staff officer from the Tribunal registry erroneously informed DS on 8 November 2010 that she was not entitled to view the Tribunal file or receive copies of documents on the file as she was not an active party to the hearing. Under section 229 of the Queensland Civil and Administrative Tribunal Act 2009 DS would be entitled to obtain a copy of documents on the Tribunal file on payment of the appropriate fee despite not being an active party in the review proceeding. On 8 November 2010 DS lodged an application with the Tribunal seeking to be joined as an active party to the review proceeding. 15. In support of her application, DS stated that she is the sole living family member of DJP and that she had been his primary carer since the death of his mother in November 1978. She stated that she will always be a permanent part of DJP’s life even if she does not have direct contact with him. DS stated that if not for her persistence, DJP would not be -- 3 of 5 -- undertaking an independent evaluation to ensure that all his needs are being adequately met. 16. Each of the following persons is defined as an active party in section 119 of the Guardianship and Administration Act 2000: the adult, the applicant in a proceeding, the proposed appointee as guardian or administrator, a current guardian, administrator or attorney, the Adult Guardian and The Public Trustee of Queensland. In addition section 119 includes in the definition of an active party a person joined as a party to the proceeding by the Tribunal. 17. DS is not an applicant, current appointee or proposed appointee in the review proceedings and is not an active party unless joined as such by the order of the Tribunal. An active party has the right to appear before the Tribunal in a proceeding. 1 The Tribunal is obliged to give an active party a reasonable opportunity to present that party’s case, to access documents before the Tribunal and to make submissions about a document or other information accessed by an active party. 2 18. The Guardianship and Administration Act 2000 does not prevent persons who are not active parties from appearing before the Tribunal, from giving evidence, from making submissions to the Tribunal or from accessing documents on the Tribunal file. Persons who are not active parties but who are members of the adult’s family are notified of the time and place of hearings, are provided with a copy of the decisions made by the Tribunal and can request a copy of any written reasons of the Tribunal. 19. The distinction between active parties and other parties was considerably narrowed at the commencement of the Queensland Civil and Administrative Tribunal as a result of the provisions in the Queensland Civil and Administrative Tribunal Act 2009 which give all persons (subject to section 114A of that Act and in the absence of a limitation order) a right to inspect the Tribunal file and to obtain copies of documents.3 It was considered by the former Guardianship and Administration Tribunal that this right did not exist prior to 1 December 2009 under the access to documents provisions in the Guardianship and Administration Act 2000. 20. Given that the difference in the role between active and other persons interested in an adult has been narrowed since the commencement of the Queensland Civil and Administrative Tribunal, the Tribunal will consider joining a person as an active party in a proceeding in those cases where the person in question wants to appear and take an active part in the hearing. 21. DS had stated to the Tribunal in 2007 that she would honour the wishes of DJP that no longer was she to be a contact person for any matter about him. In January 2010 DS had stated to the Tribunal that conflict had escalated between DJP and her to such a stage that she did not even wish to have a personal sister to brother relationship with DJP. In a letter to the Tribunal dated 8 November 2010 she had stated that there was now a irreconcilable breakdown in their relationship. She had stated that she did 1 Section 123 of the Guardianship and Administration Act 2000 2 Section 103 of the Guardianship and Administration Act 2000 3 Section 229 of the Queensland Civil and Administrative Tribunal Act 2009 -- 4 of 5 -- not intend to attend the hearing of the review application in December 2010. 22. Those statements, when coalesced with similar expressions of opinion made by DJP, result in the Tribunal concluding that the previously supportive relationship between DS and her brother has broken down and that DS is no longer to be considered part of her brother’s support network. As a result, any contribution by her into decision making for DJP must be limited and it would not be appropriate to designate DS as an active party in proceedings about DJP until and unless a supportive relationship is restored. 23. In addition, the Tribunal noted that DS did not intend to appear and to take an active part at the hearing. Based on her statements, she did not intend to fulfil the role of an active party and in that case, joining her as an active party in the proceedings would have been futile. 24. The application by DS for joinder as an active party in the review proceedings was declined. -- 5 of 5 --