TE [2026] WASAT 89

[2026] WASAT 89 Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : GUARDIANSHIP AND ADMINISTRATION ACT 1990 (WA) CITATION : TE [2026] WASAT 89 MEMBER : MS R BUNNEY, MEMBER HEARD : 3 NOVEMBER 2025, 5 FEBRUARY 2026 AND 17 APRIL 2026 DELIVERED : 31 JULY 2026 PUBLISHED : 31 JULY 2026 FILE NO/S : GAA 5023 of 2025 TE Represented Person STATE ADMINISTRATIVE TRIBUNAL Applicant CC Third Party Catchwords: Guardianship - Administration - Best interests of represented person - Revocation of enduring power of attorney - Immigration and visa matters - Existence of de facto relationship - End of de facto relationship - Application by represented person's de facto partner for non-legal representative - Sufficient grounds required to be shown before Tribunal will grant leave - Complexity of the litigation - Genuine difficulties of a self-represented party - Interests of justice - Language or communication problems - Emergency situation - Leave granted for non-legal -- 1 of 40 -- [2026] WASAT 89 Page 2 representation Legislation: Guardianship and Administration Act 1990 (WA), s 3, s 4(2), s 4(3), s 4(4), s 4(5), s 4(6), s 4(7), s 43(1)(b)(i), s 43(1)(b)(iii), s 44, s 44(5), s 64(1)(a), s 68, s 84 Migration Act 1958 (Cth), s 5CB, s 5CB(2)(a), s 5CB(2)(b) State Administrative Tribunal Act 2004 (WA), s 9, s 32(2), s 32(4), s 32(5), s 39, s 39(1)(e), s 87, s 87(2), s87(3), s 87(6) Result: Public Trustee reappointed as administrator Enduring power of attorney revoked Public Advocate reappointed as guardian Category: B Representation: Counsel: Represented Person : N/A Applicant : N/A Third Party : N/A Solicitors: Represented Person : N/A Applicant : N/A Third Party : N/A Case(s) referred to in decision(s): Damjanovic v Maley (2002) 55 NSWLR 149 Fairbairn v Radecki [2022] HCA 18 P v R (No 1) [2002] FMCAfam 65 Reynolds v Minister for Health (2010) 247 FLR 425 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 Schagen v The Queen (1993) 65 A Crim R 500 Stanford v Stanford (2012) 247 CLR 108 -- 2 of 40 -- [2026] WASAT 89 Page 3 SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 TE [2024] WASAT 126 -- 3 of 40 -- [2026] WASAT 89 Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Summary 1 This proceeding is a periodic review under s 84 of the Guardianship and Administration Act 1990 (WA) (GA Act) of the administration order made for TE in November 2024 and the guardianship order made in February 2025. 2 TE is aged in his 70s. He has Alzheimer's dementia and has lived in residential aged care (Care Facility) since early 2025. TE and his de facto partner CC have a son, SE, who is 16. Prior to moving to the Care Facility, TE, CC and SE lived at Property 1 in a caravan. 3 The administration order under review appoints the Public Trustee as TE's administrator with an authorisation to use TE's money for CC and SE's maintenance and support. The guardianship order appoints the Public Advocate as TE's limited guardian to make decisions about accommodation, medical treatment, contact, services, legal matters and restrictive practices. 4 Public appointments were necessary in November 2024 due to the conflict between CC and TE's adult children from his marriage to GN, daughter DX and son MX. 5 CC is from Country A. TE would alternate between spending three months in Country A with CC and SE and then three months in Western Australia. When the COVID-19 pandemic began in March 2020, the Western Australian border closed and TE could not travel for two years. When the border reopened in March 2022, TE flew straight to Country A for six months. TE started to show symptoms of becoming unwell at this time. From then on, DX managed TE's finances using an enduring power of attorney he signed in March 2022 (EPA). 6 SE is an Australian citizen by descent and is completing year 11 at a school in Western Australia he has attended for the last three years. CC does not have a visa to stay in Australia permanently. She made an application for a partner visa (Application) but the Public Trustee and Public Advocate do not support the Application and have refused to sign it on TE's behalf. -- 4 of 40 -- [2026] WASAT 89 Page 5 7 The most pressing issues facing TE are: (a) the Public Trustee cannot pay his care fees or financially support CC as his cash reserves have been exhausted; (b) the local shire is seeking to evict CC and SE from Property 1; and (c) CC cannot obtain a visa to stay in Australia to care for TE and SE without the cooperation of TE's substitute decision-makers. 8 For the reasons set out below, I will reappoint the Public Trustee and Public Advocate as TE's administrator and guardian for five years. I will include an additional function in the guardianship order to ensure the Public Advocate can do all things and sign documents in respect of a visa for CC as I am satisfied on the evidence before me it is in TE's best interests that CC remains in his life. Principles to be observed by the Tribunal 9 The primary concern of the Tribunal when making decisions under the GA Act is the best interests of the person for whom the application was made, TE.1 The Tribunal must ascertain TE's views and wishes, as far as possible.2 10 The starting point for the Tribunal is every person is presumed to be capable of looking after their own health and safety, managing their own affairs and making reasonable judgments about matters relating to their estate and their person.3 If this 'presumption of capacity' is set aside by cogent evidence, the Tribunal can consider making guardianship and administration orders. 11 The Tribunal must consider whether TE's needs could be met by other means less restrictive on his freedom of decision and action.4 If the Tribunal makes an order, the order must impose the least restrictions possible.5 12 The Tribunal will take all facts and circumstances into account when determining TE's best interests. The Tribunal may inform itself on any matter as it sees fit, and is not bound by the rules of evidence, which 1 GA Act, s 4(2). 2 GA Act, s 4(7). 3 GA Act, s 4(3). 4 GA Act, s 4(4). 5 GA Act, s 4(5) and s 4(6). -- 5 of 40 -- [2026] WASAT 89 Page 6 ensures, as far as possible, all relevant information can be considered by the Tribunal to make the correct decision in TE's best interests.6 13 When making this decision, I have taken into account the written evidence filed with the Tribunal since 2024 and the oral evidence given at Tribunal hearings over the last 2 years.7 The evidence I have relied on is summarised in these reasons. Issues 14 The issues I must determine are: (a) whether TE lacks the capacity to make decisions about his personal and financial matters; (b) if so, whether there is a need to make an order, or whether there is another way for decisions to be made that is less restrictive on TE's freedom of decision and action; (c) if orders are needed, who the guardian or administrator will be and the functions or powers they require; and (d) when the order will be reviewed. 15 The most contentious issues for the Tribunal to decide is who to appoint, as there are at least two people proposing themselves for each role, and the functions to include on the guardianship order to ensure the guardian has the authority to make all decisions needed in TE's best interests. TE's views and wishes 16 The Tribunal must ascertain TE's views and wishes, as expressed or gathered from his previous actions.8 17 When the Investigator from the Public Advocate's office met TE in October 2024, TE gave vague responses to questions, such as 'no complaints' and 'sounds good'. The Investigator noted his answers were polite but did not suggest he understood what he was being asked.9 6 State Administrative Tribunal Act 2004 (WA) (SAT Act), s 32(2) and s 32(4). 7 This includes the decision previously published in GAA 4527 of 2024 and GAA 4735 of 2024, TE [2024] WASAT 126 (TE). 8 GA Act, s 4(7). 9 Report of Investigator dated 31 October 2024 filed in GAA 4735 of 2024. -- 6 of 40 -- [2026] WASAT 89 Page 7 18 When TE's delegated guardian Ms S (Guardian) met with TE in late 2025, he was unable to hold even a simple conversation. The Guardian described him as calm and pleasant but he agreed with every statement and did not offer any thoughts of his own.10 19 I am satisfied TE is currently unable to express a view about this application and who he would want to be his substitute decision-maker. I will take into account his previously expressed wish in March 2022 that DX would manage his finances using the EPA. Procedural history 20 The orders under review were made on 22 November 2024 for one year.11 The Public Advocate sought review of the guardianship order in December 2024 as TE needed a restrictive practices function added to the order as it was decided he would move to the Care Facility.12 A new guardianship order was made on 18 February 2025 to include the restrictive practices function. Like the existing administration order, this order was to be reviewed by 22 November 2025. 21 The review hearing was scheduled for 3 November 2025. CC asked for an adjournment to obtain legal advice as her solicitor had been diagnosed with a terminal illness and could not act for her. The matter was adjourned to 23 February 2026. 22 On 4 February 2026, Mr Roberts applied on CC's behalf to represent her as a non-legal representative. I listed an urgent directions hearing on 5 February 2026 to discuss the application. CC, Mr Roberts, US and NB attended the directions hearing by videoconference. 23 US is CC's former migration agent who now describes himself as CC's friend. NB is TE's neighbour who met CC in late 2023.13 NB is known to DX as he previously employed DX's former husband. The relationship between DX and CC started to break down in October 2023 when NB took TE and CC to the bank to withdraw $2,000 from TE's account, cancel DX's bank card and change the internet banking password DX used to manage TE's funds. There are significant, ongoing tensions between NB and DX. 10 Report of Delegated Guardian filed 27 October 2025. 11 GAA 4527 of 2024 and GAA 4735 of 2025. 12 GAA 6591 of 2025. 13 Witness statement of NB dated 12 November 2024 filed in GAA 4527 of 2024 (NB Witness Statement) at paras 15 - 16. -- 7 of 40 -- [2026] WASAT 89 Page 8 24 For the reasons set out in the next section, on 5 February 2026, I granted leave for Mr Roberts to represent CC on the condition that no charge was made for the non-legal representation. 25 Mr Roberts requested a three-month adjournment to allow time to prepare for the hearing. The hearing occurred on 17 April 2026 (Hearing). At the Hearing, I reserved my decision. 26 TE did not attend the Hearing. I was satisfied it was appropriate to hear the matter in his absence as the medical and other evidence satisfied me TE would not be able to meaningfully participate in the proceeding. 27 DX attended the Hearing by telephone. DX now lives interstate and has proposed herself as TE's guardian and administrator. 28 CC attended the Hearing in person and was assisted by an independent interpreter arranged by the Tribunal, Ms M. I record the Tribunal's gratitude for Ms M's assistance. 29 Attending the Hearing with CC were Mr Roberts, NB and US. NB has proposed himself as TE's guardian. US has proposed himself as TE's administrator. US is also proposing himself jointly as guardian with NB for all functions save for any function relating to immigration, as he recognises the conflict of interest due to his former role as CC's migration agent. 30 TE's Guardian attended the Hearing with Ms H, inhouse counsel for the Public Advocate. TE's trust manager at the Public Trustee, Ms A (Trust Manager) attended the first part of the Hearing to discuss her updated report filed that morning. 31 I will next discuss CC's successful application for a non-legal representative. Non-legal representative in GA Act matters 32 The Tribunal controls its own practice and procedure.14 Section 39 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides for non-legal representation in Tribunal matters as follows: (1) At a hearing in a proceeding before the Tribunal a party to the proceeding may appear in person or may be represented by 14 SAT Act, s 32(5). -- 8 of 40 -- [2026] WASAT 89 Page 9 another person, but a party cannot be represented by a person other than a legal practitioner unless - (a) the party is a body corporate and the person is a director, secretary, or other officer of the body corporate; or (b) the party is a public sector body as defined in section 3(1) of the Public Sector Management Act 1994 and the person is a public sector employee authorised by the party to represent it; or (c) the party is a party in the course of or because of the performance, or purported performance, of his or her duties as a public sector employee and the person is another public sector employee authorised by the party to represent him or her; or (d) the person has particular knowledge or experience relevant to the matter that is being dealt with (other than experience obtained as or representing a party in another Tribunal proceeding); or (e) the Tribunal agrees to that person representing the party, and any conditions imposed by the Tribunal are satisfied; or (f) the regulations or the rules authorise it. (2) This section does not authorise a person who could not otherwise lawfully demand or receive any fee or reward for representing a party to demand or receive any fee or reward... 33 It is relatively commonplace in GA Act matters, which are protective in nature, for the person the subject of the proceeding to be represented by a non-legal representative, such as an advocate from a disability organisation.15 34 However, if a party to the proceeding, where there is no doubt about their capacity, applies to be represented by a non-legal representative outside of the usual organisations that would provide advocacy in GA Act matters,16 the Tribunal must consider whether to exercise the discretion in s 39(1)(e) of the SAT Act to allow non-legal representation. 15 For example, Developmental Disability WA. 16 For example, Carers WA. -- 9 of 40 -- [2026] WASAT 89 Page 10 35 Regard must be had to the objects of the Tribunal set out in s 9 of the SAT Act which require the Tribunal: (a) to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and (b) to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties … 36 Damjanovic17 summarises the relevant principles running through the case law as to the discretion to allow a non-lawyer, or lay advocate, to appear on behalf of a party:18 (a) the complexity of the litigation; (b) the genuine difficulties of a self-represented party; (c) whether lay advocates ought to appear in inferior courts and tribunals; and (d) the interests of justice. 37 The types of genuine difficulties of a self-represented party potentially giving rise to a non-lawyer being granted leave to appear are:19 (a) language problems or communication issues; (b) hardship; (c) disability; and (d) emergency situations where a court or tribunal would have to permit non-legal representation to prevent a failure of the administration of justice. 38 Schagen20 provides an example of an emergency situation and communication issues. In that case, the Western Australian Court of Criminal Appeal allowed two law students to address the Court on behalf of Mr Schagen. Mr Schagen was refused Legal Aid and the law students assisted him to prepare his appeal and submissions. The Court allowed 17 Damjanovic v Maley (2002) 55 NSWLR 149 (Damjanovic). 18 Damjanovic at [70] - [87]. 19 Reynolds v Minister for Health (2010) 247 FLR 425 at [46], citing P v R (No 1) [2002] FMCAfam 65 at [11] (Driver FM) and Damjanovic at [72] - [73] (Stein JA). 20 Schagen v The Queen (1993) 65 A Crim R 500 (Schagen). -- 10 of 40 -- [2026] WASAT 89 Page 11 the law students read out the pre-prepared submissions due to Mr Schagen's significant language and hearing difficulties, and because the Court reporting service found him 'virtually incomprehensible'.21 39 When deciding whether to allow non-legal representation, there are further considerations of:22 (a) the unavailability of disciplinary measures against, and the absence of any duty to the court by, lay advocates; and (b) protection of the 'client' and 'opponent' from the actions of an unqualified person. 40 However, the role of the Tribunal in GA Act matters is investigative. This means the Tribunal is not reliant only on the submissions and evidence provided by the parties. The Tribunal can obtain evidence from a wide variety of sources, is not bound by the rules of evidence and can inform itself on any matter it sees fit.23 Further, the protection of other parties can be managed by the Tribunal and costs can be ordered to be paid by a party, a third party or a representative of a party under s 87 of SAT Act.24 The power to make an order for the payment of costs includes payment of an amount to compensate for any expenses, loss, inconvenience or embarrassment.25 Consideration of CC's application for non-legal representation 41 Mr Roberts has represented himself in tribunal proceedings interstate. He has a Diploma of Legal Services and experience in assisting parties in tribunal proceedings. He described his role as explaining the process and procedure of the Tribunal to CC, assisting her to prepare and file documents and to advocate for her. Mr Roberts assured me he would not provide legal advice and he was willing to act for CC at no charge. 42 NB gave evidence he had attempted to assist CC to find a new solicitor. NB accompanied CC to two meetings with solicitors and explained the following matters:26 21 Schagen per Malcolm CJ at 501. 22 Damjanovic at [74] - [80]. 23 SAT Act, s 32(2) and s 32(4). 24 SAT Act, s 87(2) and s 87(6). 25 SAT Act, s 87(3). 26 ts 12 - ts 13, 5 February 2026. -- 11 of 40 -- [2026] WASAT 89 Page 12 (a) an allegation money is missing from a bank account belonging to SE; (b) allegations a trailer or other assets had been taken from Property 1; (c) allegations the fences at Property 1 had been cut down with a chainsaw; (d) allegations that various reports CC had made to the local police had not been acted upon because TE's former wife GN worked at the local police station for 40 years and continues to have a personal relationship with the police officers; and (e) an allegation DX's former husband is a member of an outlaw motorcycle gang and was involved in a high speed chase a few weeks earlier, which has caused CC to be fearful. 43 NB told me the solicitors declined to act for CC because the matter was too complex. 44 I explained that the extraneous issues at (a) to (e) above are irrelevant to the decisions the Tribunal would make when reviewing orders, which are about capacity, need, identity, function and duration. NB objected, stating he viewed issues (a) to (e) as highly relevant and causing CC's matter to be too complex to engage a solicitor. NB stated their 'next move' may be to contact a member of Parliament or the media.27 45 CC is also concerned there is a conflict of interest as she believes the Guardian has a close friendship with DX and her mother, GN.28 CC also believes DX is 'best friends' with the Trust Manager.29 US views the alleged relationships between the parties, Guardian and Trust Manager as the reason the Application was not signed by the Public Trustee or Public Advocate.30 46 The Guardian denied any association with the parties outside of her role as TE's delegated guardian. She viewed CC as extremely vulnerable and was concerned the matter was going off track due to the extraneous issues. The Guardian suggested CC's representatives, NB and US, may 27 ts 12, 5 February 2026. 28 Submissions filed with the Tribunal by CC on 3 November 2025 and ts 50 - ts 55, 17 April 2026. 29 ts 51, 17 April 2026. 30 ts 14, 5 February 2026. -- 12 of 40 -- [2026] WASAT 89 Page 13 view the Tribunal orders as a way of resolving the wider problems CC is facing. The Trust Manager did not attend the whole Hearing so was not able to respond to the allegation. 47 CC has not communicated directly with the Guardian or the Trust Manager for the duration of the orders, and has relied on assistance from her solicitor, US and NB. The Guardian has struggled with communicating with CC about TE's care as CC's solicitor insisted all communication go through him.31 This was explained as being necessary due to the language barrier but the Guardian's view is that the use of an interpreter is more appropriate for conversations regarding medical treatment and personal matters. 48 TE's decision-makers have therefore not had the benefit of speaking to CC directly to hear her view of what she believes is in TE's best interests. They have only spoken to her representatives, who also do not speak her first language. NB's advocacy may also be influenced by his conflict with DX. 49 I agree CC is highly vulnerable and is in a very difficult position. It may be that the people CC has surrounded herself with have caused the matter to appear more complex, and become more convoluted, than it is, and they may have inadvertently affected the decision-makers' perceptions of CC. 50 Taking s 9 of the SAT Act into account and the considerations set out in Damjanovic, I was satisfied it was appropriate to grant leave for Mr Roberts to represent CC in the proceeding for the following reasons. Complexity 51 While the review of the orders is not complex, it is likely, in my view, CC does not understand what is or is not relevant in respect of the review or the decisions being made for TE. Unlike DX, who has corresponded extensively with the Trust Manager, CC has not spoken to or interacted with TE's decision-makers. It is also likely, in my view, the involvement of CC's representatives has muddied the waters. Genuine difficulties of a self-represented party - communication 52 Communication issues such as English as a second language can be overcome using an interpreter, but CC's inability to communicate with 31 Report of the Guardian dated 27 October 2025 and email from CC’s solicitor to the Guardian dated 22 January 2025 filed in GAA 6591 of 2024. -- 13 of 40 -- [2026] WASAT 89 Page 14 TE's decision-makers appears to have been instigated by the intervention of her solicitor and her representatives, NB and US. 53 CC's solicitor requested all communication go through him as CC was not confident making telephone calls.32 Then NB has complained the Guardian and Trust Manager do not speak to CC so her opinions have not been heard.33 54 CC has never contacted the Trust Manager, not even when her allowance ceased in early 2026, and only raised the issue at the directions hearing of 5 February. The Trust Manager has only had contact with CC's solicitor or NB on her behalf.34 55 The Guardian has been open about the difficulty of not being able to communicate with CC and has had to correspond with CC's solicitor in relation to TE's personal matters. The Guardian has spoken to US, on behalf of CC, in relation to the immigration issue affecting CC. At the Hearing, US explained he specifically discussed the issue of communicating with CC with the Guardian. The Guardian advised US she wanted to develop a working relationship with CC, and the issue was that CC had not made contact with her, despite having her email address and telephone number. US's view was the Guardian's role was a professional association only, and a 'relationship' is not always needed, implying, in my view, the approach of the Guardian in wanting to build a working relationship with CC was inappropriate.35 Genuine difficulties of a self-represented party - hardship 56 The Public Trustee has been unable to pay CC her weekly $550 allowance since at least early 2026. CC is not a resident of Australia, so she is not eligible for any assistance from Centrelink and her visa does not allow her to work. She is reliant on donations from local church groups for food for herself and SE,36 so I am satisfied that even if she could engage a solicitor, she could not pay for legal advice or representation. 32 Email from Mr L to Guardian dated 22 January 2025 filed in GAA 6591 of 2024. 33 ts 48 and ts 54, 17 April 2026. 34 Reports of Trust Manager dated 18 February 2025 filed in GAA 6591 of 2024 and 28 October 2025 and 17 April 2026 filed in GAA 5023 of 2025. 35 ts 50, 17 April 2026. 36 ts 17, 5 February 2026. -- 14 of 40 -- [2026] WASAT 89 Page 15 Genuine difficulties of a self-represented party - emergency 57 CC was represented in the earlier Tribunal proceeding by an experienced solicitor, who is now unfortunately unwell and unable to act. CC has made efforts, with NB's involvement, to meet with at least two other solicitors, but has been unable to engage someone to act. To properly consider TE's wellbeing and circumstances, I need to know what CC thinks as she visits him almost every day. Permitting non-legal representation may therefore ensure all relevant evidence is before the Tribunal so the decision is made fairly and in TE's best interests. Whether lay advocates should act 58 The Tribunal routinely allows non-legal representation in GA Act matters. I am satisfied CC should have the benefit of someone to assist her to present her evidence and make submissions in relation to who should be appointed as TE's decision-makers. The extraneous issues, ongoing conflict and dominant personalities of the people involved in this matter satisfy me that CC cannot advocate for herself. Interests of justice 59 The interests of justice require TE's partner to be assisted to advocate for what, in her opinion, is in his best interests. With the greatest of respect to CC, she is unsophisticated and dependent on those around her, who may have, due to their interests and motives, inadvertently prevented her involvement with TE's decision-makers. Her role as TE's de facto partner appears to have been minimised or dismissed. The risk is that due to who she has aligned herself with, the important role she plays in TE's life may be overlooked, which I am satisfied is not in TE's best interests. 60 When considering in GA Act matters, EM Heenan J observed:37 … It is the true rights and interests of disabled persons or persons who are the subject of proceedings under the G & A Act which must be identified, evaluated and determined not some mistaken or ill-considered version of them. Accordingly, in the guardianship jurisdiction, the SAT should be astute to ensure that no matter how garbled, ill-advised or inappropriate may be the approach adopted by a party, the true nature of the relief sought is properly identified and jurisdiction is exercised according to the statutory obligations imposed by the legislation. 37 S v State Administrative Tribunal of Western Australia [No 2] [2012] WASC 306 at [163]. -- 15 of 40 -- [2026] WASAT 89 Page 16 61 In his closing comments to the Tribunal, Mr Roberts submitted:38 … we've seen from both the current administrator and the guardian [there] is very limited, if not no communication, to [CC]. We have seen [CC] put into a vulnerable situation where she may need to leave the country due to her visa. We have seen her living technically homeless in a caravan, and I've got photographs here provided to the tribunal and I visited that location two days ago. We have seen the management of the financial affairs reach a position where there are negative funds and that [CC] was not able to receive her limited allowance to pay for basic items. So it seems that [CC] has been dismissed in terms of her role in what is the best interest of [TE], and the medical reports show this, and I have concerns about the decisions that have been made and are still being made by the administrator and the guardian in terms of are they really acting in the best interests of [TE]? They're assumed to be independent. In this particular case, I really don't know if they are because I'm struggling to understand why those decisions were made that deeply affect the most important person in [TE's] life to this day, which is his partner of 18 years. So I think that the tribunal needs to consider how the decisions of the administrator and guardian have affected [TE] and will affect [TE's] ability to have that support - very meaningful support from [CC] in his life moving forward. 62 I would like to acknowledge and thank Mr Roberts for his effective advocacy for CC. Capacity TE's capacity to manage his financial affairs 63 To appoint an administrator, the Tribunal must be satisfied TE is currently unable, by reason of a mental disability, to make reasonable judgments in respect of matters relating to all or any part of his estate.39 64 At law a mental disability includes dementia.40 The medical report by TE's general practitioner, Dr P, confirms TE has a mental disability, and the condition is progressive.41 The report notes TE is incapable of making decisions about financial or legal matters. TE undertook a mini-mental state exam in April 2024 and scored 3/30 which indicates a severe level of impairment. I accept the evidence of Dr P. 38 ts 55 - ts 56, 17 April 2026. 39 GA Act, s 64(1)(a). 40 GA Act, s 3. 41 Medical Report by Dr P dated 14 October 2024 filed in GAA 4527 of 2024. -- 16 of 40 -- [2026] WASAT 89 Page 17 65 No one that attended any of the Tribunal hearings expressed a view that TE could manage his estate, which is complex. TE was a successful businessman who has been a self-funded retiree from the age of 53. In his personal capacity, TE owns: (a) Property 1, a 19 acre 'bush block' where CC and SE currently live in a caravan each with a shed that houses a kitchen and an adjoining ablution block; (b) Property 2 which is land in Town D upon which stands a large shed and is currently being prepared for sale; (c) Property 3 is a commercial property in Town E from which TE previously operated his business. Property 3 is currently leased to a business and receives rent of approximately $3,400 per month; and (d) a number of vehicles, trailers, caravans and boats. 66 TE is also the sole director and shareholder of the Company which owns Property 4, which is a residential property in Town E which is rented for approximately $1,280 per month. The Company also has a bank account containing around $80,000. 67 TE's income is the monthly rent received from Property 3 and distributions from the Company. As TE's incapacity rendered his office of director vacant, the taxation returns and financial reports for the Company have not been prepared for the last three financial years. As the Company taxation returns have not been completed, TE's personal taxation returns cannot be completed. 68 TE's financial position is dire. TE is required to pay care fees of around $390 per day as the means tested care fee is being charged at the maximum rate as the income and asset assessment cannot be undertaken by Centrelink until TE's personal taxation returns are completed.42 TE owes approximately $59,000 to the Care Facility in unpaid care fees. The Public Trustee part-paid $200,000 of the refundable accommodation deposit (RAD) of $500,000. TE is therefore required to pay a daily 42 Basic Daily Fee of $65.55 per day and Means Tested Care Fee of $325.00 per day, as set out in April PT Report. -- 17 of 40 -- [2026] WASAT 89 Page 18 accommodation payment (DAP) which is being drawn down from the part-paid RAD.43 69 On 28 October 2025, the Public Trustee held $24,593.20 for TE.44 However, TE's balance with the Public Trustee was negative $7,348 by April 2026 due to the need to pay insurance for his numerous properties.45 His negative balance is likely due in part to the impact of adjourning the review hearing for almost six months. 70 TE's accountant assisted DX to be appointed as the alternate director of the Company. DX is collating the documents necessary to finalise the Company taxation returns and has obtained access to the bank account. The Trust Manager has advised DX to urgently obtain advice as to the best way to characterise a substantial distribution of funds to TE care of the Public Trustee.46 71 As mentioned, the Public Trustee does not have adequate funds to pay the weekly allowance to CC. However, the Public Trustee continues to pay the ongoing costs associated with living at Property 1 being electricity, water, shire rates and insurance. 72 Further, the local shire responsible for Property 1 has issued an eviction notice by reason of 'unlawful camping and unfitness for habitation'.47 CC has been advised she must leave Property 1 but she has been unable to find alternative accommodation. The Public Trustee previously advised TE could afford to pay rent of around $520 per week for alternate accommodation but that is not currently possible.48 The Public Trustee has also paid $14,476 to US's migration business for services provided to CC.49 73 I am satisfied, and I find, the presumption of capacity has been set aside in relation to financial matters. The diagnosis of dementia causes TE to be unable to make reasonable judgments about all of his estate. TE remains a person for whom I can appoint an administrator. 43 The DAP is calculated using the Maximum Permissible Interest Rate (MPIR) on the unpaid portion of the RAD. The MPIR at the date these reasons are published is 8.43% meaning TE may be incurring a DAP of approximately $2,100 per month. 44 Report of Trust Manager dated 28 October 2025. 45 Report of Trust Manager dated 17 April 2026. 46 Report of Trust Manager dated 17 April 2026. 47 Report of Trust Manager dated 28 October 2025, page 2. 48 Report of Trust Manager dated 18 February 2025 filed in GAA 6591 of 2025. 49 Report of Trust Manager dated 28 October 2025, page 2. -- 18 of 40 -- [2026] WASAT 89 Page 19 TE's capacity to manage his personal affairs 74 To appoint a guardian for TE, I must be satisfied he is over 18 years of age, the presumption of capacity has been set aside and one or more of the following criteria apply:50 (a) he is incapable of looking after his own health and safety; (b) he is unable to make reasonable judgments in respect of matters relating to his person; or (c) he is in need of oversight, care or control in the interests of his own health and safety or for the protection of others. 75 I am satisfied, and I find, TE is currently incapable of looking after his own health and safety. TE moved to the Care Facility in late January 2025 as the Guardian determined it was no longer safe for him to live at Property 1.51 TE's aged care services had been cancelled, requiring the Guardian to reinstate them. The police had been called because TE was reported to have been 'kidnapped'. TE had also become confused and disorientated while swimming in the river. 76 The Guardian's view was there was an unacceptable level of conflict occurring at Property 1 between family members, meaning informal care and supervision was not available and it was unsafe for TE. 77 I am satisfied, and I find, TE is currently incapable of making reasonable judgments in respect of his person due to the dementia diagnosis. 78 I am satisfied, and I find, TE needs supervision and oversight to protect his health and safety. TE's illness means he requires assistance to remember to eat, drink and shower.52 79 I am satisfied, and I find, the presumption of capacity has been set aside in relation to personal decisions. TE remains a person for whom I can appoint a guardian. 50 GA Act, s 43(1)(b)(i) - 43(1)(b)(iii). 51 Report of Guardian dated 4 February 2025 filed in GAA 6591 of 2025. 52 Report of Guardian dated 27 October 2025. -- 19 of 40 -- [2026] WASAT 89 Page 20 Does the Tribunal need to make orders? 80 When considering whether TE needs a guardian or administrator to be appointed, I must adopt a less restrictive option if possible.53 Informal arrangements 81 I am satisfied informal arrangements are not appropriate in this case as TE requires his decision-makers to have the legal authority to, among other things, liaise with the Department of Home Affairs on his behalf and sell assets to pay his care fees and provide financial support to CC and SE. Enduring power of attorney 82 As set out earlier, TE signed the EPA in 2022 to appoint DX as his attorney. In November 2024, I suspended the operation of the EPA and appointed the Public Trustee as his administrator as I was not satisfied DX could act independently in TE's best interests at that time due to the breakdown of her relationship with CC. 83 I suspended the operation of the EPA, rather than revoking it, in the event CC and DX mended their formerly close relationship. However, this has not occurred. The Trust Manager gave evidence DX suggested consideration be given to the sale of Property 1 rather than Property 2:54 with the thought it would expedite [CC's] relocation. The Public Trustee advised that this is not a practical option whilst the property remains occupied, and it should be vacant to avoid potential legal and financial consequences that could arise during the sale process. 84 DX's evidence is she does not support the sale of Property 1. She admits she spoke to a representative from the local shire in the context of Property 1 being deemed unfit for habitation and she advised the representative she was considering selling Property 1.55 85 I prefer the evidence of the Trust Manager, who is an independent party with no personal interest in the matter. I am satisfied it is more probable than not DX suggested to the Trust Manager that Property 1 be sold to relocate CC. I form this view because of the actions DX has taken in the past, which I view as disrespectful, such as requiring CC to 53 GA Act, s 4(6). 54 Public Trustee report dated 28 October 2025, page 2. 55 Submissions by DX dated 29 June 2026 and filed on 7 July 2026. -- 20 of 40 -- [2026] WASAT 89 Page 21 undertake a paternity test for SE in April 2024 as a condition for DX continuing to provide CC with financial support. 86 As the conflict between CC and DX is enduring, I am satisfied it is not appropriate for DX to manage TE's finances. I will revoke the EPA. 87 The medical evidence is clear TE does not have the capacity to sign a new enduring power of attorney or an enduring power of guardianship. I am therefore satisfied there is no less restrictive alternative and I need to appoint both a guardian and an administrator. Guardianship - who should be TE's guardian? 88 Section 44 of the GA Act sets out the following matters the Tribunal must consider when deciding who to appoint as guardian: (1) A guardian (including a joint guardian) shall be an individual of or over the age of 18 years who has consented to act and who in the opinion of the State Administrative Tribunal - (a) will act in the best interests of the person in respect of whom the application is made; (b) is not in a position where his interests conflict or may conflict with the interests of that person; and (c) is otherwise suitable to act as the guardian of that person. (2) For the purposes of subsection (1)(c) the State Administrative Tribunal shall take into account as far as is possible - (a) the desirability of preserving existing relationships within the family of the person in respect of whom the application is made; (b) the compatibility of the proposed appointee with that person and with the administrator (if any) of that person's estate; (c) the wishes of the person in respect of whom the application is made; and (d) whether the proposed appointee will be able to perform the functions vested in him. 89 Both DX and NB have nominated themselves to be TE's guardian. US also consented to being appointed as a joint guardian with NB for all functions except any function relating to immigration, in order to assist NB with communicating with TE's family. -- 21 of 40 -- [2026] WASAT 89 Page 22 90 I find DX, NB and US are over the age of 18 years and have consented to act as the guardian. Consideration of DX 91 I am unable to find DX suitable to act as TE's guardian as I am satisfied the conflict between DX and CC has not resolved based on DX's suggestion Property 1 be sold first. I am satisfied DX would not communicate effectively with CC and consult with her about important decisions to be made for TE. 92 CC's evidence is she has no ill feelings towards DX and she only wants to be treated fairly.56 CC suggested at the Hearing that a self-contained, or demountable, home be purchased for Property 1 so TE could move back and be cared for by her. I am satisfied DX would not bring an independent mind to consider whether this could be in TE's best interests due to her conflict with CC, as it would also benefit CC and SE by providing a safe place for them to live. Consideration of NB 93 I am unable to find NB suitable to act as TE's guardian. The verbal interaction I observed in the Hearing satisfies me the relationship between NB and DX continues to be antagonistic and volatile, meaning NB would not be able to discuss important matters about TE's care with DX, MX and GN, who is still involved in TE's life. NB characterises the conflict with DX as 'one-sided', which satisfies me he takes no responsibility for his role in the conflict.57 I am satisfied NB would not be able to make decisions solely in TE's best interests, free from any influence of his conflict with DX. 94 Further, NB has accepted and adopted CC's belief about the alleged conflict of interest in respect of the Guardian and Trust Manager having personal relationships with the parties, of which I am satisfied there is no evidence.58 I doubt his ability to critically analyse the information required to make decisions in TE's best interests, so I am satisfied NB is unable to perform the functions vested in the guardian. Consideration of US 95 US has proposed himself as a joint guardian to act with NB in all matters save for immigration. As I am unable to find NB suitable for 56 ts 24, 17 April 2026. 57 ts 17 - ts 18, ts 22 and ts 32, 17 April 2026. 58 ts 50 - ts 54, 17 April 2026. -- 22 of 40 -- [2026] WASAT 89 Page 23 appointment solely, I cannot consider US's suitability to act jointly with NB. Conclusion 96 The Tribunal can only appoint the Public Advocate if there is no other person who is suitable and willing to act.59 As I am unable to find DX, NB, or NB and US acting jointly, as suitable to act, I am satisfied the only option open to the Tribunal is to reappoint the Public Advocate as TE's guardian. What functions does the guardian need? Immigration 97 The issue of CC's immigration status must be resolved as I am satisfied it is in TE's best interests that CC continue to be in his life. This requires a more detailed function than that included in the order under review. 98 CC made an application for a partner visa (Subclass 820) on 26 September 2025 with TE named as the sponsor of the Application. CC was issued with a 'Bridging A' visa on 26 September 2025 while the Application is being processed.60 US continues to advocate for CC with the Guardian and has indicated it may be necessary to progress the matter in the Administrative Review Tribunal and potentially involve the Minister for Immigration.61 Position of the Public Trustee 99 The Legal Directorate of the Public Trustee confirmed the Public Trustee did not provide authority for TE to be the sponsor for the Application.62 One reason given was the order under review was to be reviewed after one year. Sponsoring a partner visa usually involves a two-year commitment to provide, among other things, accommodation, financial support and English language support, and the Public Trustee's authority under the administration order only extended for one year. 100 The Public Trustee was also concerned TE would not be able to fulfill the financial sponsorship commitments if he died during the two- year period, at which point the Public Trustee's authority would cease, 59 GA Act, s 44(5). 60 Notification from the Department of Home Affairs sent on 26 September 2025 and filed with the Tribunal on 17 April 2026. 61 Report from the Guardian dated 27 October 2025. 62 Letter from Ms B of the Legal Directorate of the Public Trustee dated 2 April 2026. -- 23 of 40 -- [2026] WASAT 89 Page 24 leaving no ability to deal with the commitments stemming from the Application.63 101 The Public Trustee wrote to the Department of Home Affairs on 4 November 2025 to advise the Application was lodged with TE as the sponsor without the consent of the Public Trustee or the Office of the Public Advocate. Position of the Public Advocate 102 The Public Advocate advises she carefully considered the request for TE to sponsor CC's Application and sought advice from appropriate agencies. The Public Advocate determined it is not in TE's best interests to sponsor the Application.64 103 The Public Advocate has identified the following four issues to be resolved:65 (a) the extent of the legal authority in the guardianship order; (b) the ability to agree to the two-year financial commitments; (c) the question of whether TE and CC were in a de facto relationship as defined in the Migration Act 1958 (Cth) (Migration Act); and (d) if TE and CC were in a de facto relationship, has the de facto relationship ended? 104 The legal authority in the guardianship order can be easily rectified with more specific drafting and the two-year financial commitment is a matter to be discussed with the Public Trustee. The questions about the de facto relationship require further discussion. Are TE and CC in a de facto relationship as defined in the Migration Act? 105 The Guardian referred to the 'consistent assertion from [CC's] representatives that there is a preexisting de facto relationship and they have interpreted the decision of the Tribunal as endorsement of that position'.66 However, the Public Advocate says she is not in a position 63 Report of Trust Manager dated 28 October 2025. 64 Email from the Guardian to US of 28 October 2025. 65 ts 38 - ts 39, 17 April 2026. 66 Report of Guardian dated 27 October 2025 with reference to the published decision in TE. -- 24 of 40 -- [2026] WASAT 89 Page 25 to determine whether TE and CC are in a continuing de facto relationship.67 106 Section 5CB of the Migration Act sets out the definition of de facto relationship as follows: (1) For the purposes of this Act, a person is the de facto partner of another person (whether of the same sex or a different sex) if, under subsection (2), the person is in a de facto relationship with the other person. De facto relationship (2) For the purposes of subsection (1), a person is in a de facto relationship with another person if they are not in a married relationship … with each other but: (a) they have a mutual commitment to a shared life to the exclusion of all others; and (b) the relationship between them is genuine and continuing; and (c) they: (i) live together; or (ii) do not live separately and apart on a permanent basis … 107 Therefore, the three indicators of a de facto relationship are first, a mutual commitment to a shared life. Second, the relationship is genuine and continuing and third, the parties either live together or do not live separately and apart on a permanent basis. 108 As I have foreshadowed, I am satisfied it is in TE's best interests that CC stay in Australia. To assist the Public Advocate to perform the functions I will vest in her, I make findings of fact in [109] - [126] herein that demonstrate, in my view, the first indicator, being a mutual commitment to a shared life, in accordance with s 5CB(2)(a) of the Migration Act. 67 ts 39, 17 April 2026. -- 25 of 40 -- [2026] WASAT 89 Page 26 Mutual commitment to a shared life - s 5CB(2)(a) 109 TE and CC met in or around 2007 in Country A. CC visited Western Australia prior to SE's birth.68 110 SE was born in June 2009 in Country A. TE signed an affidavit of acknowledgement of paternity six days after SE was born.69 111 CC visited Western Australia in 2010 when SE was aged 8 months old and again in 2011 when SE was 2 years old.70 GN first met CC in 2011 and they became very close.71 112 For the entirety of their relationship until 2023, CC lived in Country A. TE travelled to Country A and lived with CC for three months and would return to Western Australia for three months. This occurred from at least 2008 until March 2020 when the Western Australian border closed.72 113 When they lived together in Country A, they lived in CC's home. Sometimes TE would travel to other places in the three months he was not with CC in Country A.73 114 TE and CC do not own any property together. TE sold his business in 2006 and amassed his wealth prior to starting his relationship with CC. 115 TE appointed DX as his enduring attorney in March 2022 and specifically instructed her, among other things, to send money to CC by Western Union transfer as needed.74 116 When the border reopened in March 2022, TE flew to Country A for six months. 117 When TE returned in September 2022, GN witnessed his signature on a statutory declaration stating he was inviting his partner CC and their son SE to Australia to stay with him at Property 1.75 68 Witness statement of DX dated 3 November 2024 filed in GAA 4527 of 2024 (DX Witness Statement) at para 26. 69 Birth certificate and affidavit of paternity attached to NB Witness Statement. 70 DX Witness Statement at para 26. 71 Witness statement of GN filed on 9 October 2024 in GAA 4527 of 2024 (GN Witness Statement). 72 ts 11, 5 November 2024 per CC and DX. 73 ts 11, 5 November 2024 per DX. 74 DX Witness Statement at para 10. 75 GN Witness Statement and statutory declaration annexed to NB Witness Statement as annexure 'E'. -- 26 of 40 -- [2026] WASAT 89 Page 27 118 DX arranged for CC and SE to come to Western Australia in August 2023 for six months. SE was enrolled in school in Year 9 in September 2023.76 119 CC and SE returned to Country A in February 2024. CC took $4,000 back with her.77 120 TE was diagnosed with dementia in April 2024.78 121 CC and SE returned to Western Australia in August 2024. SE has lived in Western Australia since then and continued his education. 122 CC returned to Country A in around November 2024 to comply with the requirements of her visitor's visa. SE lived with NB when CC was not in Western Australia. 123 On 22 November 2024, the Tribunal appointed the Public Advocate as TE's guardian and the Public Trustee as his administrator. 124 CC returned to Western Australia and TE, CC and SE resumed living at Property 1 together. 125 In late December 2024, TE was taken to hospital to await placement at the Care Facility as the Guardian decided it was not safe for him to continue living at Property 1. 126 In January 2025, TE moved to the Care Facility. CC visits him almost every day and assists him with feeding and personal hygiene. The relationship is genuine and continuing - s 5CB(2)(b) 127 The second indicator is the relationship is genuine and continuing, so it has not ended. The High Court set out the test of when a de facto relationship ends in Fairbairn.79 128 I will set out the facts of Fairbairn in detail as there are many similarities with the current matter, as the de facto wife had lost capacity and public bodies were making decisions for her. It is not straightforward to ascertain whether a relationship has ended when one party lacks capacity and cannot form an intention to separate or decide where they will live. 76 NB Witness Statement at paras 34 - 35. 77 ts 20, 5 November 2024 per GN. 78 DX Witness Statement at para 22. 79 Fairbairn v Radecki [2022] HCA 18 (Fairbairn) -- 27 of 40 -- [2026] WASAT 89 Page 28 129 The High Court focused on the actions of the capable partner and whether they made necessary or desirable adjustments for their incapable partner and acted in accordance with their needs. 130 The de facto wife, Ms Fairbairn, sought a family law financial settlement from the de facto husband Mr Radecki. This was so her administrator, the New South Wales Trustee (Trustee), could sell her Home to pay her aged care fees.80 To be successful in the application, the Trustee must prove that the de facto relationship had broken down. 131 Mr Radecki's position was that the relationship had not broken down, so Ms Fairbairn could not seek a property settlement from him and her Home, in which he continued to live, could not be sold. 132 Ms Fairbairn and Mr Radecki started their de facto relationship in 2006. They each had children from earlier relationships. Ms Fairbairn had appointed her children as her enduring attorneys and enduring guardians in 2004. 133 In 2010, they entered a binding Cohabitation Agreement in which they each quarantined their respective property in the event of separation, with the Home to remain solely owned by Ms Fairbairn. In 2015, the parties signed another Cohabitation Agreement to update the earlier agreement and quarantine another property Mr Radecki had purchased. 134 Ms Fairbairn began to suffer rapid cognitive decline in late 2015 and stopped working by the end of that year. In 2016, she prepared a new will. As in her earlier will, her children were her primary beneficiaries, but the updated will granted Mr Radecki a period of six months after her death to vacate the Home. 135 In January 2017, Ms Fairbairn's treating specialist thought she might have dementia with Parkinsonian features. In April 2017, Mr Radecki went overseas for a three-month holiday. In June 2017, Ms Fairbairn's general practitioner advised it was time to enact the enduring power of attorney. Her children stopped her access to her bank accounts for her protection. 136 When Mr Radecki returned from the holiday in June 2017, he was unhappy with the actions taken by Ms Fairbairn's children. In July 2017, Mr Radecki sent an email to the children stating Ms Fairbairn wanted to suspend the enduring power of attorney. Five days after this email was 80 An administrator is known as a 'financial manager' in New South Wales. -- 28 of 40 -- [2026] WASAT 89 Page 29 sent, Ms Fairbairn's treating specialist confirmed she had moderate dementia. 137 On 18 July 2017, Mr Radecki arranged for Ms Fairbairn to revoke the enduring power of attorney and sign a new one in favour of him and Ms Fairbairn's brother (New EPA). 138 In November 2017, Ms Fairbairn was in hospital following a fall and Mr Radecki arranged for a solicitor to visit her to sign a new will. This will was more favourable to Mr Radecki than the 2016 will as it allowed him to live in the Home for the rest of his life. 139 Ms Fairbairn's children made an application to the NSW Civil and Administrative Tribunal (NCAT) to challenge the validity of the New EPA. Mr Radecki sought appointment as her administrator and told NCAT at the hearing in January 2018 he would pay Ms Fairbairn's aged care fees so her Home could be retained. 140 NCAT appointed the Trustee to make financial decisions for Ms Fairbairn for one year and revoked the New EPA. NCAT decided it could not appoint Mr Radecki as he was not open to any proposal the Home be sold to pay for her care needs. The Public Guardian was appointed as her guardian. 141 In March 2018, the Public Guardian decided to move Ms Fairbairn into residential aged care. The Trustee decided to sell her Home to fund her care. A RAD of $370,000 was required, and until it was paid, Ms Fairbairn was liable to pay a DAP of approximately $21,000 per year. Selling her Home would also allow the Trustee to discharge the small mortgage remaining, which was not being paid. 142 On 25 May 2018, Mr Radecki suggested to the Trustee that Ms Fairbairn's superannuation be used to pay her care fees, which should last around nine years, at which time he would start contributing. 143 On 21 March 2019, he made a further offer to pay Ms Fairbairn's care fees on the condition he would be reimbursed when the Home was sold. On 1 May 2019, Mr Radecki advised the Trustee he would consider paying Ms Fairbairn's care fees prior to her funds being depleted. 144 On 15 May 2019, NCAT reappointed the Trustee as Ms Fairbairn's financial decision-maker. In June 2019, Mr Radecki started making payments towards Ms Fairbairn's DAP, some 15 months after she entered -- 29 of 40 -- [2026] WASAT 89 Page 30 aged care. By January 2020, he had paid $16,000 in total and continued to pay $1,000 per fortnight. 145 As Mr Radecki continued to oppose the sale of the Home, in 2019 the Trustee started proceedings in the Federal Circuit Court of Australia for orders for a financial settlement and sale of the Home. To be successful, the Trustee needed to prove the de facto relationship had broken down. Findings of the High Court 146 The High Court noted the 'core element' of the parties' relationship was they agreed to keep their assets strictly separate, although they lived in Ms Fairbairn's Home. The High Court found Mr Radecki's behaviour demonstrated he no longer wished to be bound by the Cohabitation Agreement and keep their assets separate, evidenced by procuring: (a) the New EPA which gave him control over Ms Fairbairn's assets, including the Home; and (b) the new will which provided him with a life interest in the Home. 147 Mr Radecki took these steps when he was aware her capacity was diminished. 148 The High Court held Mr Radecki's mutual commitment to a shared life with Ms Fairbairn ceased by no later than May 2018 when he suggested Ms Fairbairn's superannuation be used to pay her care fees and he would contribute only when it was exhausted. 149 The High Court found Mr Radecki's behaviour was designed to benefit him financially, rather than continuing to support Ms Fairbairn and be bound by the Cohabitation Agreement. 150 The phrase 'necessary and desirable adjustments' comes from the case of Stanford,81 where a husband and wife lived together for 37 years. The wife had a stroke and developed dementia. When she moved into residential aged care, the husband paid her expenses and put $40,000 into a bank account for that purpose. Her children from her earlier marriage started proceedings in the Family Court of Western Australia seeking a financial settlement. 81 Stanford v Stanford (2012) 247 CLR 108 (Stanford). -- 30 of 40 -- [2026] WASAT 89 Page 31 151 The High Court noted that when both parties have capacity, it can be assumed they will consensually make any 'necessary or desirable adjustment' to their financial arrangements.82 However, as the wife had lost capacity, the husband made the necessary or desirable adjustments for her by ensuring her financial needs were met.83 It therefore was not just and equitable to make an order for a financial settlement that would require the sale of the matrimonial home in which the husband still lived. It was the continuing relationship between the husband and wife that explained why he made the necessary and desirable adjustments to their financial arrangements to ensure her ongoing support. Application of Fairbairn 152 When considering the relationship between TE and CC, the core element of their relationship, and the basis upon which they conducted their relationship, was that TE's contributions were financial and CC made non-financial contributions as homemaker and parent. I make the following findings of fact in [153] - [163] in terms of their relationship being genuine and continuing. 153 CC has been financially dependent on TE since the beginning of their relationship. TE continuously provided funds to CC to support the household in Country A. 154 TE signed the EPA in early 2022 and instructed DX to financially support CC. When TE was incapable of managing his finances, DX provided financial support to CC on his behalf in accordance with his instructions. 155 When TE became unwell and could not travel to Country A, CC and SE came to Western Australia in August 2023. CC needed to leave Australia from time to time to comply with the requirements of her visitor's visa. 156 CC cared for TE at Property 1 until the Guardian decided in December 2024 it was no longer safe for him to live there. 157 In September 2024, the dementia wellbeing specialist providing services to TE while he was living at Property 1 commended CC on the excellent care she was providing TE.84 Another service provider involved at the time noted TE was much happier and engaged when CC 82 Stanford at [44] per French CJ, Hayne, Kiefel & Bell JJ. 83 Fairbairn at [37]. 84 Letter from Ms R dated 30 September 2024 filed in GAA 4527 of 2024. -- 31 of 40 -- [2026] WASAT 89 Page 32 was present, and TE was 'very happy to have his wife and son back living with him, he openly expresses this'.85 158 TE was admitted to hospital for a few weeks awaiting placement at the Care Facility. CC visited him every day while he was in hospital.86 159 TE moved to the Care Facility in late January 2025. The Guardian reports CC visits daily.87 160 The Clinical Nurse Manager at the Care Facility gave evidence CC will visit TE and often has lunch with him. They watch TV and will hold hands and walk around outside. TE is happy when she arrives and she will encourage him to have a shower, as TE often refuses care from staff.88 161 The Executive Officer of the Care Facility Ms B advised CC has visited regularly since TE has been at the Care Facility. CC visits daily although depending on the weather, will visit at least three times per week.89 CC catches a bus to visit TE.90 CC actively assists staff with TE's care, including with feeding and hygiene. Ms B noted CC's visits are usually long and she has been instrumental with assisting TE to settle into the memory support unit. 162 DX gave evidence that the last time she saw CC was at the Care Facility. DX is in close contact with the staff at the Care Facility who confirm CC is there often and will go out with TE when the residents go on excursions. DX respects and acknowledges what CC does for TE and she knows CC loves him. DX knows CC brings TE joy and DX is very happy about that.91 163 At the Hearing, CC gave evidence she visits every day to toilet and shower him.92 She explained TE does not want the carers to assist him and he only wants CC, which is why she goes every day. CC would like TE to move back to Property 1, with safer accommodation, so she can continue to care for him. 85 Service provider report prepared by Ms C dated 24 September 2024 filed in GAA 4527 of 2024, page 2. 86 Email from CC's solicitor Mr L to the Guardian of 20 January 2025 filed in GAA 6591 of 2024. 87 Guardian report dated 27 October 2025. 88 Service provider report prepared by Ms H, the clinical nurse manager at the Care Facility, dated 15 September 2025 filed in current matter. 89 Letter from Ms B dated 11 August 2025, filed with the Tribunal on 3 November 2025 by CC. 90 Submissions prepared by Mr Roberts and filed 17 April 2026. 91 ts 23, 17 April 2026. 92 ts 30, 17 April 2026. -- 32 of 40 -- [2026] WASAT 89 Page 33 The parties do not live separately and apart on a permanent basis - s 5CB(2)(c)(ii) 164 The third indicator is not living separately and apart. In Fairbairn, the High Court viewed 'living together' as meaning sharing life as a couple.93 The High Court found a de facto relationship may continue even though the parties physically reside at different locations, and despite one of the parties suffering from an illness.94 165 The Full Court of the Federal Court discussed the authorities concerning the phrase 'live separately and apart' in the context of an application for a partner visa in SZOXP.95 The Full Court examined the evolution of the phrase 'living separately and apart' in family law where a marriage may breakdown but the parties remain under one roof but living separate lives. 166 The Full Court noted the phrase has a physical and mental element.96 The mental element was independent of whether the parties lived in the same house and involved the intention of the parties to live separate lives.97 To put that another way, the requisite intention was whether the parties intend to separate and end their relationship. 167 The physical element required some physical separation but the question was not whether they were physically living in the same house. The focus is on the behaviour involved in 'living separately and apart' from each other, which can occur in the same house with the parties being separated under one roof.98 The Full Court mentioned it was possible for a couple who maintained separate residences and still live their lives, as a whole, as a single 'household'. 168 The Full Court held:99 The conclusions relevant to s 5CB(2)(c)(ii) of the Migration Act that can be drawn from the history of the phrase 'live separate and apart' are therefore that: 93 Fairbairn at [39]. 94 Fairbairn at [42]. 95 SZOXP v Minister for Immigration and Border Protection (2015) 231 FCR 1 (SZOXP) 96 SZOXP at [55]. 97 SZOXP at [55] - [56]. 98 SZOXP at [57]. 99 SZOXP at [59]. -- 33 of 40 -- [2026] WASAT 89 Page 34 (1) both the physical and mental elements of the phrase were concerned with a husband and wife who were living their lives separate and apart from each other as separate households; (2) the phrase therefore did not require that the parties live in different homes but rather focuses upon whether they lived their lives separately as separate households; (3) conversely the phrase 'not living separately and apart on a permanent basis' focuses upon whether the parties will not live as separate households on a permanent basis … 169 The Full Court concluded s 5CB of the Migration Act does not require the parties to physically reside in the same premises prior to the application for the partner visa. 170 Applying those principles to TE and CC, they do not currently live together due to TE's illness but they have always lived between Western Australia and Country A and have lived their lives as if in a single household since at least 2008. CC made the necessary and desirable adjustments to move to Western Australia to care for TE when he was too unwell to travel. She visits him every day, weather permitting. The mental element is present as they are living their lives together, even though they do not live together due to TE's illness. CC wants them to live together again in the future, in more suitable accommodation at Property 1. Conclusion in relation to immigration function 171 I am satisfied, and I find, it is in TE's best interests that I vest the Public Advocate with a specific function to allow her to do all things, sign all documents, obtain legal advice, liaise with the Department of Home Affairs (or the department that has the responsibility for granting visas in Australia) and advocate on TE's behalf concerning sponsorship or any application that would allow CC to stay in Australia with TE. Medical treatment 172 TE needs his guardian to give informed consent to medical treatment and procedures as required, as he is not able to contribute meaningfully to conversations regarding his medical care. Noting the Guardian's comments about her difficulty in discussing medical treatment decisions with CC, a medical treatment guardian will ensure all family members are kept updated about TE's health and notified about any changes. -- 34 of 40 -- [2026] WASAT 89 Page 35 Accommodation and services 173 TE requires his guardian to make decisions about accommodation. The Guardian advised there are no plans to move him however she has not spoken with CC to confirm her view on the placement at the Care Facility. 174 At the Hearing, CC discussed her view that it would be in TE's best interests for him to move back to Property 1 for her to care for him. More appropriate housing would be needed, requiring the cooperation of the administrator and the guardian. If this was arranged, aged care services would need to be engaged. TE therefore needs his guardian to have the authority to make decisions about the services he will have access to in order to consider whether it is feasible and safe for him to be cared for at Property 1. Contact 175 The Guardian gave evidence DX has alleged TE is being influenced to stay in his room rather than see other members of the family. I accept the Guardian's evidence this allegation was made and I will include the contact function so the Guardian has oversight of this issue. Restrictive practices 176 TE resides in a secure dementia wing at the Care Facility, so I am satisfied the restrictive practices function is still needed. Information sharing 177 US has indicated to the Guardian that the matter relating to CC's Application may progress to the Administrative Review Tribunal and potentially involve the Minister for Immigration. The Public Advocate may require authority to communicate and share information with various parties should the matter progress, and in any event, will likely require this authority when liaising with the Department of Home Affairs. Conclusion 178 I am satisfied TE's guardian will need to make decisions about his medical treatment, accommodation, services, contact, restrictive practices and have the authority to share information with Government bodies. -- 35 of 40 -- [2026] WASAT 89 Page 36 Administration - who should be TE's administrator? 179 Section 68 of the GA Act sets out who may be appointed as administrator: (1) An administrator (including a joint administrator) shall be - (a) an individual of or over the age of 18 years; or (b) a corporate trustee, who has consented to act and who, in the opinion of the State Administrative Tribunal - (c) will act in the best interests of the person in respect of whom the application is made; and (d) is otherwise suitable to act as the administrator of the estate of that person. … (3) For the purposes of subsection (1), the State Administrative Tribunal shall take into account as far as is possible - (a) the compatibility of the proposed appointee with the person in respect of whom the application is made and with the guardian (if any) of that person; (b) the wishes of that person; and (c) whether the proposed appointee will be able to perform the functions proposed to be vested in the administrator. 180 DX and US have proposed themselves for appointment as TE's administrator. I find they are both over the age of 18 and have consented to act. Consideration of DX 181 As I found it was not appropriate for DX to manage TE's finances using the EPA, I am unable to find her suitable to appoint as TE's administrator. I am satisfied DX will not act independently and solely in TE's best interests, as her decisions will likely be influenced by her conflict with CC. Consideration of US 182 I accept US's evidence that he runs his own business and works as a registered immigration advisor. I accept US has skills and experience -- 36 of 40 -- [2026] WASAT 89 Page 37 in accounting, government, administration and making decisions affecting people living with a disability. 183 US says he has had difficulty communicating with the Guardian and Trust Manager on CC's behalf, which is why he proposed himself as administrator. US explained that CC asked him to be the administrator so she would have someone to speak to and ask for help.100 184 I acknowledge US has a wealth of knowledge in relation to immigration and has been an important source of support for CC. However, I am satisfied, and I find, his friendship with CC will likely influence his administration of TE's estate. I am concerned US is proposing himself as the administrator to assist CC, which is a conflict of interest, as the administrator must act independently and solely in TE's best interests. I am therefore unable to appoint US as the administrator. Conclusion 185 I am satisfied, and I find, the only option open to the Tribunal is to reappoint the Public Trustee as TE's administrator. I am satisfied neither DX nor US could perform the role independently and solely in TE's best interests. What functions does the administrator need? 186 I am satisfied TE is unable to make decisions about simple or complex financial matters. The administration order will therefore be a plenary order, which will allow the administrator to deal with all aspects of TE's estate in his best interests. 187 I will authorise the Public Trustee to continue to use TE's money for CC and SE's maintenance and support. I will include a gifting authority of $2,000 per year so the administrator can purchase gifts on TE's behalf for his partner, children and grandchildren. How long should the orders run before review? 188 The Tribunal is required to fix a period for the review of the order, with the maximum period allowed being five years. 189 I am satisfied it is in TE's best interests that the orders be reviewed in five years' time for three reasons. First, the evidence demonstrates TE will always need substitute decision-makers. Second, the conflict that currently precludes the appointment of friends and family members 100 ts 5, 5 February 2026. -- 37 of 40 -- [2026] WASAT 89 Page 38 is chronic and unlikely to resolve. Third, the Public Advocate and Public Trustee need assurance, when making decisions in TE's best interests in respect of sponsoring a visa application for CC, that their authority will continue for the period the application is underway. 190 It is for these reasons the Tribunal makes the following orders. Orders The Tribunal orders: 1. The Tribunal declares that the represented person, [TE] 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. Administration 2. The administration order dated 22 November 2024 is revoked and substituted with the order below. 3. The Public Trustee of 553 Hay Street, Perth, 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 enduring power of attorney dated 3 March 2022 by which the represented person appointed [DX] as his enduring attorney is revoked. 5. The administrator is authorised to apply or expend moneys of the represented person, whether income or capital, for the maintenance, necessaries, comforts and benefits of the -- 38 of 40 -- [2026] WASAT 89 Page 39 represented person or the de facto partner of the represented person [CC] or the child of the represented person, in such manner and to such extent as the administrator, having regard to the circumstances and the value of the estate of that person, considers proper and reasonable. 6. The administrator is authorised to expend up to a total amount of $2,000 per annum on gifts on behalf of the represented person. 7. The Tribunal will provide the Public Trustee with copies of all documents filed in matter GAA 5023 of 2025. 8. The administration order is to be reviewed by 31 June 2031. Guardianship 9. The guardianship order dated 18 February 2025 is revoked and substituted with the order below. 10. The Public Advocate of David Malcolm Justice Centre, Level 23, 28 Barrack Street, Perth, Western Australia is appointed limited guardian of the represented person with the following functions: (a) to seek legal advice on behalf of the represented person, do all things, sign all documents, liaise with the Department of Home Affairs (or the department that has the responsibility for granting visas in Australia) and advocate on the represented person's behalf concerning sponsorship of the represented person's de facto partner [CC] and any application for a visa, including but not limited to a partner visa, for [CC]; (b) to decide where the represented person is to live, whether permanently or temporarily; (c) to decide with whom the represented person is to live; (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; -- 39 of 40 -- [2026] WASAT 89 Page 40 (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 for the represented person proposed from time to time under the Aged Care Act 2024 (Cth) or subsidiary legislation. 11. The Public Advocate is authorised to notify the Australian Federal Police, the Department of Foreign Affairs and Trade and the Department of Home Affairs about the existence and effect of this order as required. 12. The Public Advocate is authorised in exercise of these functions or in related matters or when making any representations or enquiries to government departments or health or welfare agencies or other organisations to provide medical or other information and documents held by her office as she considers necessary to the third parties to advance the best interests of the represented person. 13. The Tribunal approves delegation by the Public Advocate of her functions as guardian of the represented person to an officer or employee employed in the Office of the Public Advocate. 14. The guardianship order is to be reviewed by 31 July 2031. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS R BUNNEY, MEMBER 31 JULY 2026 -- 40 of 40 --